New-York tribune., 1906-06-02
APPOINTMENT BY TRANSFER"

What was long q fayOrite device for securing
good places in the public service by evasion of
the constitutional rule of competition received a
few days ago the condemnation Of the Court OF
Appeals. The opinions IN the case Of Hale agt-
WorSJeIl which have just received. give an
important exposition of the scope and obligatory
character Of the competitive rule For years
persons with pull" in places of minor i'm
portance have been allowed in this city, through
the method Of transfer, TO secure other places
Of higher grade and compensation which they
could not obtain in fair competition. The court
condemns that practice and sets up this rule:
II the practical working Of the Civil Service
requires transfer Of one engaged therein. such
transfer can only be made when II does not in
fact constitute a promotion. Promotions under
the name OF transfers are evasiOnS and Illegal
and contrary "a the express terms Of the con-
stitution.
The case arose out Of the transfers Of John
2. WOrstell and Joseph z. Mcnamara 70 the
offices of sur ~~intendent and assistant superin-
tendent OF pubic baths though they had stood,
respectively. seventh and seventeenth on the
eligible list for those places. WOrstell was a
bath attendant in Brooklyn. drawing a salary Of
S%" In July, 1903 be was transferred 10 the
place Of assistant superintendent in Brooklyn, at
salary Of $3.50. and in December, 1903. he
was transferred 10 the place of superintendent
-
grade clerk IL the Brooklyn Bureau Of Buildings.
drawing a salary Of Sl.O5O, when be was trans
ferred 70 the place of assistant superintendent
10 succeed WOrstell. Ar the time OF the trans
rers an eligible list OF persons 10 be appointed
or promoted TO these offices existed, but no re-
quest was made for a certifcatiOn Of eligibies
for promotion from this list. Nevertheless,
these Two men were put in the places 10 which
they could not have been certified, being too
low on the list either for appointment or pro-
motion. William II. Hale. who stood second On
the eligible list, brought suit 10 invaldate these
transfers and Justice GaynOr decided IN his
favor. The Appellate Division affirmed that rul-
ing, and now it is confirmed by the Court Of
Appeals Judge Haight writes a dissenting opin-
ion, IN which Judge Yann concurs. taking the
view that the appointment of WOrstel but not
that OF Mcnamara, was legal, because WOrstell
was already In a lower grade in the same bath
service, and, being the only person in that ser
vice on the eligible list could be promoted in
preference 10 outsiders above him on the list.
The majority opinion is written by Judge Chase
and Chief Judge Cullen concurs in separate
memorandum, in which he emphasizes the right
10 I'LL vacancies by promotion without resort
Ing 70 open competition and says insider
might be chosen in preference 10 outside compet-
itors standing higher on an eligible list But
70 any rule. but arbitrarily without competition
even among those eligible to a promotion exam
ination.
Judge Chase in his opinion closely limits the
right OF the Legislature or any administrative
officer 10 depart from the competitive rule and
make exemptions He says:
The constitution clearly contemplates that all
appointments and all promotions shall be made
according TO merit and fitness to be ascertained
by competitive examination. unless IL is in good
faith found that IL is impracticable TO deter
mine the relative merit and fitness OF persons
4 for particular position or employment . .
Apart from the fact that statutes may be made
and rules may be adopted 10 make a practicable
and workable system OF appointments and pro-
motions. the plain general direction OF the con-
/ sutuuon must be obeyed
His further intimation that neither by law
nor rules can competition which is actually prac-
ucabie be avoided suggests that there may be
a limit to the exemption OF places on the theory
that they are In some sort OF; way confidential
and that an appointing officer should have the
right OF personal selection"
Ihis decision is likely 10 affect many persons
IN tie city service Numerous transfers Were
mA"> ~"nUsu - this rule which sino. the O.