New-York tribune., 1899-11-18
POWER OF APPOINTMENT.
IMPORTANT DECISION AFFECTING THE
CIVIL SERVICE REFORM LAW.

Albany. Nov II (speciaD.-The Appellate Dl-
vision of the Supreme Court Tor the 1hiru De-
partment has given q decision upon Governor
Roosevelt's Civil Service Reform law which
may have important political consequences The
Court holds that a State or city officer Is not
compelled 10 take the first man on the eligible
list Of a Civil Service Commission, but may Sc
lect any Of three persons for the position.
Judge D. Cady Herrick, Of Albany, wrote the
opinion in the case and his Judgment was con-
Cured in by Judge Parker and Judge Merwin.
OF the other two Judges of the court, Judge
Landon dissented. while Judge Putnam Is ab-
sent In Europe.
The case was an appeal from an order OF the
Special Term Of the Supreme Court granting
a writ Of peremptory mandamus directing the
defendants as a Board OF Street Commissioners
of the city OF Binghamton. TO appoint the re-
lator. George n. Balcom. to the office OF super
intendent OF Streets and City Property. the
office had become vacant and the civil service
Commission certified the names OF three persons
IN tho Roard Of Street Commissioners as on an
eligible list prepared as the result or an open
connective examination for the position. The
names certified were those Of Herbert T. Bales
96 9-1O per cent; George n. Balcom. ~ 1870 per
cent and John NJ. Seabury, So 10 per cent
Racom and Seabury were both Union veterans
rhe Board Of Street Commissioners divided on
the question OF the appointment Of Balcom or
Seabury. each receiving two votes. Balcom
then brought a suit for the position contendlng
that being a veteran and having the highest
percentage of two veterans upon the eligible
list he was ds matter Of legal right entitled
to the appointment pursuant to the Constitu-
ton. Judge Herrick in his opinion says
The question here is whether the provision OF
Chapter $40 Of the Laws OF 1899. and Of the
civil Service rules passed In pursuance thereof
providing for the appointment or the person
graded highest on the proper eligible list is IN
conflict with the Constitution Of the stare. II
it is then the Civil Service rules OF the city OF
Bnghamton above quoted are in full force ana
effect and the relator is not as a matter or
right entitled to be appointed. but the defendants
have power of selection or choice between the
relator and the other veteran. John NJ. Seabury
MOTIVES OF THE REFORMERs.
Later IN his opinion Judge Herrck says;
The movement for reform in the Civil Service
rules and the amendment TO the Constitution, was
INTENDED to acsomPsh It twS Sota tnns b6nf snbonat
positions in the public service and, second, 10 eIln-
mate as far as the element me O1
to such places. The first, Improvement IN me qual-
n0ndTred S II the rst Instance by persons other
than those having the power or appointtnent anu no
But those who successfully passed such examipa;
to appointment If they passed the prescribed
minimum standard they Simply became esSe be 10
came eligible The relative degree of merit and
fitness so far they could be ascertained by such
an examination was determined by the percentage
each received. which fixed the position Of eaen upon
| position on the list simply the basis; 1t was
supplemented by the power OF examination ang nf
choice selection vested in the appointing power
! or officer. and further supplemented by the So
/ period. which preceded a final appointment. dur
ing which time the candidate may be said to to have
| been under a continuing practical examination.
ELIMINATING POLITICAL INFLUENCE.
To accomplish the second purpose the eimina,
ton of the element Of partisanshp and personal
favoritism, the problem was, How far the law or
ment II il was restricted to designating the per
son at the top of the list then all the benenl 10 ne
from snd P%Sc6 are frequently
valuable. would be lost Then 100 goou ~
! in the appointing officer. and It was recognzea
that power and responsibility 20 together ana taS az
compel the appointing officer to appoint the person
adiudged by the Civil Service examiner 20 nuN e
passed the best examination was TO deprive spTn hi
appointing ofcer of all power and relieve 1iII I'm
OF all responsibility. ana pTacuCcaaXX CaXX Se1vce cx
aminer; therefore. the course adopted was 20 70 re
strict the appointing power to seeGton IRON ds The
limited number OF those standing nighesti; as e ,t'
| result OF the competitive examination, thus Pre-
serving some degree of power ana respoisloimn III > ,
ntted the opportunities for the exercise Of par
the practca construction of the laws requirint
appointments to be made as the result, Vi cV, an
peil,ve p, az me Derson standing highest th
list as the result Of such examinatl0n., DIt & pva
her Of those standing highest upon the list , tna
permitting and allowing some Gesree VI u,c NC roH
in the appointing power or ofncer, anu anu Hpi TO-
hi,s ~ ' him of ali discretion by compelling him U
take the one selected and designated as his"e'' =
the Civil Service examiners. , o.t
There is nothing in the phraseology Of Section
| ~ Article OF the Constitution that requires
The competitive examination controlling TO IN mtn
extent OF compelling the appointment OF & Ine s'r pei
sons receiving the highest percentage upon su0
! examination
EXAMINATIONS AND THE ELIGIBLE LIST
In the case of the People ex rel Sweet Vs. VS.. hy
man. Isl n y. S6S-75 the Court OF Appea IIS ,
control is declared to be only far practc;ab
This language clearly implies Ihat u I'M, IN tba
Nyay II was the purpose Of its trainers 10 dec!ai
those two principles and leave tneir spPilSasIi sai
nv The Chairman of the committee to when IN IN
amendment referred: II seemed pes, 10 cor
sideration to leave the application OF tne prFciP
(of merit and htness) TO the goou rS sense T. s al
parent not only upon the face OF tne PtOvisro ,,e
Itself but from the debates IN me his nmfndmeI
cid not intend TO absolutely determine ~, now - un
tained and determined The Constitution provide
that 10 an extent those questions are 10 pe ~ w
termined by an examination but II is obvious IN,
d | n was understood at that time that IL wouu
a | impracticable to fully determine the merit an an
0 fitness OF an employe or appointee by mere t:
amination whether competitive or otnerwlse
= | s TO be observed that the provision OF me Coi
sttution is that the merit and htness OF the ~ ~
riicant or appointee shall be ascertalneu IN u
manner stated far as practicable. that hi ce u.s.
uart al least II they can be even partiaiy asce
tained in that manner. The words so Iar
practicable plainly relate to the degree Ot ~;
| tent to which the examination should control. ~
troy,son is not that the examination snall De u
| basis OF determining merit ana htness Wheh %I h
| nthnra or in such cases II Is pracucaDIe u
nat in all cases they to be asceriained Dy
examination only so far as pracucaDle; io IN on u,
6 ! u,ards n does not declare that the eHanlhai'
shah control ascertanng merit ana nnfss bt sb
n1 oy ali cases where II is practlca bie. put w
any o -, oiiecotons of the candidate shall be hsce
taned in each case by an examination 10 and 15e co
tcIlu , a sufcient 10 insure the selection OF prop
and competent employees The and tests are 10
IlIPe.oS when necessary, and CALCULATED 10 ~
epprtssIn the merit and fitness OF the applicant