Denver labor bulletin., 1916-01-08
CONTINUED From Page One

service commission are not a. full and
complete as they ought to be; but we
cannot ignore the certificate OF the fire
and police board. by its president. APP
pointing the petitioner probationary
matron of June ,, 1879. Her testi-
moHy a. TO her previous examination Is
not full a. IL ought to be, but we can
not ignore her statement that she had
taken one. nor can We assume that the
police board violated it, duty by ap-
pointing her without one. unicss 1t i
shown that they did %. nor can we pre-
sumo that the civil service commission
allowed her 10 remain eight months with
out a legal appointment, and that the
auditor illegally allowed her to draw a
talary. Rule Nil.
The same is true with reference to
certifieation by the commission. We can
not say, without proof, that the fire and
police board violated its duty by ap
Xainting petitioner without one. II there
Was no such certification, the commits
sion could have denied her her salary or
.oustcd her long before she took the Sep
tember examination, and IL was their
duty TO do 30. Rule Mi. That they
did not then do 30 Is further proof Of the
fac; that her appointment was approved
by the commission. tho the record does
not show IL. and We think these consid-
-r.tions overcome the fact that the com
m.Bion's records fail TO show the GER
tification.
She took the examination in ScP,em-
her pas.ed with the highest mark, and
was entitled to BE- certified TO the fire
md police board within reasonable
,imc-let US suppose three weeiSs-hor
examination paper. were completed and
rated. and her final rating OF aJ.5 made
known to her and TO the fire and police
hoard in October. or at least in Novcm-
her but the commission, for reasons not
satisfactorily explained. or without rca'
son, refused to act upon these papers
Ru, be that a. IL may. they ultimately
sent in her name and approved her ap-
pointment as OF January !, 1918. Her
appointment did not date, as We take 1T,
from the date Of her approval. but from
the date IL became effective; and, with
out saying that IL is proper in all cases
to make an appointment effective as oil
a previous time. yet in this case, where
the certification had been 20 delayed, IT
was certainly just to do 30. and the act
was in somr degree also justified by the
reason given by Mr.. Luddy that her right
= to the appointment had been 30 well un-
lrrstood for long time that the ecrtifi-
cation was regarded as a mere formality
There may be some doubt whether the
approval OF February can be regarded
a- an approval of the date OF its effect
as January l. because the notice of the
appointment sent TO the commission did
moi say when il should be effective. II
We are wrong here the decision must
ret on the previous appointment.
WE think the petitioner was entitled,
after July I. therefore, to have charges
preferred and an opportunity TO be
heard. before she was discharged
But respondents say that mandamus is
not the proper remedy, because the ac-
ton Of the civil service commission on
the so.callcd appeal of the petitioner
was judicial and so must bc reviewed by
sccrtiorari.
On this point We agree with the New
York Court OF Appeals. which holds man
damus to be the remedy.
Slavin V. Mcclure, 9S N. f.. 4O5;
Simonz v. Mcclure. % n. E. 526;
pcoplc V. McNilliams. II n. f., Ts5.
RESPONDENTS claim that the New York
ca.es are based on a statute, but no
statute is referred to in them, and the
statute cited by defendants tScction 81
of the New York Civil Service Actl ap.
niles only to violations of that section.
But the respondents say that the New
York decisions are based on the TACT that
,bc functions OF the civil service com
mission in those cases were in fact MN
;sterial and not judicial, and that its
functions exercised in the present case
Avcrc judicial.
= The decisions OF the civil service com
mission of New York, against when
mnndamus has been held to be the proper
rsHncdy, are .s,,.... ,or,
ilolding that probation o,,,sSrs 1,ms,i"n me''
axcmpt from eompss,'s" ,.aa s"nra ,
rnforcipp an amendment to their own
rules.
Slavin v. Mcclure, supra.
Refusal to certify rclator's pay De-