New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1897-02-20
JIISTICE KEOGH SUSTAINED.
THE APPELLATE DIVISION OF The o.
PREME COURT AFF1RMs HIS DHN
SION ON CIVIL SERVICE
CORPORATION COUNSEL BURR TO GET
WORN FROM THE COURT OF APPEALS A
QUICKLY AS PossIBIE-wHAT THE

,,onn r,o,, THE COURT OF APPEALS AS
QUICKLY AS possIBLE-wHAT THE
JUSTICES SAY
,,,..,oo Keoph's decision on Civil Service posi-
t,ons was Yesterday affirmed by the Appe""
-iv,sion of the Supreme Court Inc '"'e
49,, =, s,r,eon p Chittenden and others against
a. Newer and other officials and was proue"'
.. ,o,,,ne, then, TO nut eleven positions no" vi
S,,.du,e A of the Civil Service lists on Scheo
ME r. While only the eleven men ho'oi"e '".
n,aces are formally affected. the decision ""''
in fact. affect all persons appointed IN s'''''-
lar manner since January i. 1880. wheh '"e "e
Constitution will go into effect The op'n'oh wa"
written by Justice Goodrich. all the other Juuee'
asserting, and supplementary OPINION pei
curiam is also handed down
CORPORATION Counsel Burr said. a1ter liie op''''
ION was announced. that he would STRAIN every
rerve to have the final adjudicaucn h'aue Do
soon as possible, so that city offciais anu en-
ployes might know where they stooo '""'''
he said ASK the Court OF Appeals 10 pass upo,,
tho Question as quickly as possible. / shall
make a motion on the first Monday IN March,
which is the first Monday on which the Court
will meet for order putting the case oo"h o''
tho calendar and setting it down for argument
q. an early day..
The original decision. which has been af-
frmed," said Mayor Wurster was that the
courts are the final arbiters: that is. they are
TO decide whether positions are to be fiied oS
competitive examination not. / think that
each case has to stand on its own bottom. III
secretary. for instance in some department can
pfcve that his duties are such as to exempt MIN
from examination l think he has the right 20 go
TO court and the Court can decide II an exam
ination is practicable or not"
MAYOR sUsTAINs CONTROLLER.
The MAYOR further said that Of the 10 places
or so in Schedule only half a dozen were hiled
by him. and the rest were appointed by his pre-
dccessors as far back as the term of Mayor Low
He believed that the decision affected all these
Appointments In reply to a question as to
whether Controller Palmer had done right in
holding up the salaries of those occupying SINH
lar positions to those affected by the decision
the Mayor replied:
"He was right. He could not take any chances.
He would have had to be able to read the minds
of the judges as to what their decision would be
If he had not held them up"
THE QUESTION OF TEACHERS
There is no probability that the school teachers
will be affected by the decision at present. There
are between 400 and 800 who were appointed af-
ter January l. 1895 and soner or later the Ques-
ton will probably come up whether they were
legally appointed or not. AS every teacher so
appointed got her place after a most rigid exam
nation more or less competitive in character.
the officials of the Board of Education beheVe
that the decision does not affect them Never
theless Edward NJ. Shepard. who argued the
matter for the plaintiffs before the Appellate d.
vision thinks 1t does apply to teachers. and that
they ought to be made to pass civil service ex-
animation in addition TO the examination they
have already passed to admit them 10 the Teach
ers' Training School and the examinations they
have passed in order to become teachers. AS
Mr. Shepard holds this opinion 1t is probable
that after the present matter is out of the way
some one will turn his attention to the school
teachers and insist on an adjudication of their
position Until the question is brought into the
courts the school teachers will probably not be
molested.
PROMOTIONS ALSO AFFECTED.
AS the Civil Service law applies not only TO
appointments. but to promotions, when the ques-
tion regarding teachers does come up the teach
ers who were appointed before 1879. but have
been promoted since will also find their places
affected No teacher can be promoted from q
primary grade to a grammar grade. or from a
grammar grade to a headshp of department,
without first passing an examination even more
rigorous than that which she passed TO enter the
Training School and that for appointment as
teacher: and all teachers so promoted since 1884
have passed this third examination. which is
more or less competitive. like the preceding ones
But as Mr.. Shepard says that these examina-
tions must be supplemented by civil service
examination their positions will undoubtedly De
affected as we'll those who nave receiNeo
urinary appointments. There is no prospect
however that the confusion and INJURY which
will result from the raising Of such question IN
the schools will be forthcoming until after the
question now at issue has been decided by the
Court Of Appeals
WHAT THE COURT SAYS
Justice Goodrich says. in the course or MS
opinion: ,,ous NO.
,nad he positions in question schedule A. the
non-compeitive class. the evidence SHOWS taa, s
Vas practicable 10 fill these places by competi.ye
Examination and that similar positions IN yne co
eral Government and In the Guy VI haye beeo filled
after competitive examinations II appears sr I ,H
evidence that appointments 10 onSe s,,'a com
49, In question: which were mace upon com-
netitve examination, were suiciently ana sat IS
factory filled and that eS hps rased benesciay
candidates for such Offices mas iV'"'''"
10 the public welfare
In the supplemental opinion the Court says;
the particular and fur
whether competitive examination for appointment
% that place is practicable or not Is question ue
terminabie by the Court as matter OF law by me
exercise of its judgment and In the lght hot Only
80 tbe nroof but of common knowledge as applied
to the subject the case Is IN %
~ COMBINATIONS which contrary TO the former doc-
trine, is now uniformly held to be question OF
law for the Court. not Of fact Tor the Jury .,,.
rho question whether examination Is practicable
heinS one determined by the exercise OF Judgment
and necessarily, Judgment being exercised in the
6rst instance by administrative officers, we think
the presumption should obtain that public Sfieers
thrown upon whoever assas Il to prove affr rns
illegal Therefore II the case presented Is fairly
debatabe and one to which In the honest ex-
ercise of Judgment men may diner, we think the
Court should not reverse the determination OF the
nublic officers. But the difference OF Judgment
m al no NOT as to advantage or disadvantage OF
the civil service scheme generally. because the
haee that QleSlinn hui only