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have the force and effect of law, are as potent as the statute, and must be respected to the same degree. People v. Lynch, (1914) 161 App. Div. 517, 149 N. Y. S. 895; People v. Creelman, (1912) 152 App. Div. 147, 136 N. Y. S. 811, reversed on other grounds (1912) 206 N. Y. 570; Matter of Ricketts, (1906) 111 App. Div. 669, 98 N. Y. S. 502; People v. Milliken, (1910) 140 App. Div. 762, 126 N. Y. S. 291, affirmed (1911) 201 N. Y. 545, 95 N. E. 1137; People v. De Forest, (1903) 83 App. Div. 410, 82 N. Y. S. 59. But so far as they undertake to limit or repeal a statute they have no force. Carr v. Gordon, (1897) 82 Fed. 373; Flemming v. Stahl, (1897) 83 Fed. 940; People v. Kane, (1901) 70 N. Y. S. 982; People v. Henry, (1900) 47 App. Div. 133, 62 N. Y. S. 102; People v. Milliken, (1910) 140 App. Div. 762, 126 N. Y. S. 291, affirmed without opinion (1911) 201 N. Y. 545, 95 N. E. 1137.

Power to change rules.-The civil service commission has power to change its rules and classifications, when fuller information and a more careful consideration have convinced them that such action is for the best interest of the service. Weeks v. Kraft, (1911) 147 App. Div. 403, 132 N. Y. S. 228. Review of rules and regulations.-The court has power to review a rule made by the state or a municipal civil service commission, and to declare it invalid if it offends the purpose and spirit of the civil service provisions of the constitution and the laws made thereunder. Matter of Ricketts, (1906) 111 App. Div. 669, 98 N. Y. S. 502; People v. Kraft, (1911) 145 App. Div. 662, 130 N. Y. S. 363, affirmed (1912) 204 N. Y. 626 mem.

As to power of the court to review classifications, see infra, § 9, note. Review of decisions of municipal civil service commissions.—Where a municipal civil service commission has determined that the duties of a newly created position are not similar to those performed by a relator in his former position, such determination is quasi-judicial and is not reviewable by mandamus. Donovan v. Cantor, (1903) 89 App. Div. 50, 85 N. Y. S. 406. So, the determination by a municipal body of the fitness and competency of an applicant, as compared with that of an honorably discharged veteran, is not reviewable by the courts. People v. Saratoga Springs, (1889) 54 Hun 16, 7 N. Y. S. 125. And a municipal civil service commission is the sole judge of the character, fitness and qualifications of an applicant for office; its action is judicial in nature and cannot be impeached collaterally, but only by direct proceedings instituted for that purpose. People v. Buffalo, (1896) 18 Misc. 533, 42 N. Y. S. 545.

Examination of commission's records.- Although the records of the state civil service commission are undoubtedly public records, as the term is defined by the courts, nevertheless the commission has power to prevent the indiscriminate examination of its records by persons who cannot show that they are personally interested therein; but persons advancing legislation and the enforcement of the law, and members of the press engaged in legitimate inquiry, may not be excluded. Op. Atty.-Gen. (1914) 6.

Power to investigate. The state civil service commission is invested with a supervisory power which, among other things, authorizes it to conduct an investigation concerning the action of any person in the public service who is charged with any violation of the act or rules and regulations prescribed therein. Op. Atty.-Gen. (1905) 408.

Character of investigations - generally.-An investigation by the state civil service commission of charges against a public officer for violating the Civil Service Law involves administrative, not judicial, action. No duty is imposed upon the commission to make any determination, either judicial or otherwise, but to investigate the enforcement and practical operation of the statute and to report its action, with such suggestions as may occur to it as a result of such investigation for the effectual accomplishment of the intent of the law, to the governor, for transmission to the legislature. The function so performed by the commission is strictly analogous to that of a legislative committee of inquiry or investigation, and it is not a valid objection to such an investigation that it may disclose crime or wrongdoing on the part

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of the individuals, provided its object is the framing and enactment of proper laws or regulations. Nor does the fact that the commission furnishes an accused official with a copy of the testimony taken during the investigation, and accords him an opportunity to present his defense, constitute an assumption by the commission of the power to try him for any offense, but merely gives him the opportunity to rebut any reflections cast upon him by the investigation. People v. Milliken, (1906) 185 N. Y. 35, 77 N. E. 872, affirming 110 App. Div. 579, 97 N. Y. S. 223.

Power to compel attendance of witnesses.-The power to compel the attendance of witnesses and the giving of testimony is not a distinctively judicial power, but has from time immemorial been exercised by other departments of the state government. It is repeatedly exercised by legislatures, and committees of such bodies charged with the investigation of certain matters, and the right of investigation has been given to various executive departments and officials to aid them in the discharge of their duties. Matter of Fenton, (1908) 58 Misc. 303, 109 N. Y. S. 321.

Power to administer oaths. The power given to commissioners and examiners to administer oaths to witnesses was sustained in Matter of Fenton, (1908) 58 Misc. 303, 109 N. Y. S. 321, the court saying: "We can see no good argument against giving executive and administrative officers power to obtain under oath and by means of compulsory process information touching the enforcement and operation of state laws for the purpose of the better enforcement of law. There can be no better deterrent of the infraction of laws designed for the protection and welfare of the public than publicity. To restrict publicity is against the interest of order and good government." Extent of power to administer oaths.-Members of the commission, the secretary, and chief examiner are authorized to administer oaths only in the course of their investigations, and they are not authorized to administer oaths in any other form or for any other purpose. Op. Atty.-Gen. (1911)

356.

Result of investigation as affecting status.—The result of the investigation or the action taken by the commissioners thereon has no legal effect on the status or rights of officers or employees. People v. Milliken, (1906) 185 N. Y. 35, 77 N. E. 872, affirming 110 App. Div. 579, 97 N. Y. S. 223:

Prohibition against investigation.—A writ of prohibition will not lie to restrain the commission from making an investigation, as such writ is addressed to subordinate courts and inferior tribunals only, to restrain them from exceeding their jurisdictional authority, and cannot be used to prevent action by administrative or legislative bodies. People v. Milliken, (1906) 185 N. Y. 355, 77 N. E. 872, affirming 110 App. Div. 579, 97 N. Y. S. 223.

Power to create new offices. The state civil service commission has no power to create new offices, nor to determine that a statutory named office shall be given a new name to the end that the incumbent shall enjoy or be denied legal rights attached to the statutory named office, as the commission can deal only with officers and positions fixed by law. Matter of Gilfillan, (1908) 58 Misc. 273, 109 N. Y. S. 376, affirmed 127 App. Div. 846, 111 N. Y. S. 808, affirmed (1908) 193 N. Y. 655 mem.

Power of legislature to amend statute and rules. The legislature may amend or repeal the Civil Service Law and the rules of the civil service commission, expressly or by implication, provided the enactment does not contravene the civil service provisions of the constitution. People v. Bingham, (1909) 130 App. Div. 112, 114 N. Y. S. 702, affirmed without opinion (1909) 196 N. Y. 519, 89 N. E. 1109.

§ 7. Attendance of witnesses; fees. Witnesses and officers to subpoena and secure the attendance of witnesses before said commission, shall be entitled to the same fees as are allowed witnesses

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in civil cases in courts of record. Such fees need not be prepaid, but the comptroller shall draw his warrant for the payment of the amount thereof, when the same shall have been certified to by the president of the commission, and duly proved by affidavit or otherwise to the satisfaction of the said comptroller; and all state, county, town, municipal and other officers and their deputies, clerks, subordinates and employees shall afford the said board all reasonable facilities in conducting the inquiries specified in this chapter, and give inspection to said board of all books, papers and documents belonging, or in any way appertaining to the respective offices, and shall also produce said books and papers, and shall attend and testify when required to do so by said commission.

This is substantially section 26 of the original Civil Service Law of 1899.

§ 8. Duties of public officers. It shall be the duty of all officers of the state of New York or of any civil division or city thereof to conform to and comply with and to aid in all proper ways in carrying into effect the provisions of this chapter, and the rules and regulations prescribed thereunder and any modification thereof. No officers or officers having the power of appointment or employment shall select or appoint any person for appointment, employment, promotion or reinstatement except in accordance with the provisions of this chapter and the rules and regulations prescribed thereunder. Any person employed or appointed contrary to the provisions of this chapter or of the rules and regulations established thereunder, shall be paid by the officer or officers so employing or appointing, or attempting to employ or appoint him, the compensation agreed upon for any services performed under such appointment or employment, or in case no compensation is agreed upon, the actual value of such services, and any expenses incurred in connection therewith, and shall have a cause of action against such officer or officers or any of them for such sum or sums and for the costs of the action. No public officer shall be reimbursed by the state or any of its civil divisions for any sums so paid or recovered in any such action.

This is substantially section 7 of the original Civil Service Law of 1899. Effect of section. The effect of the section was to prevent any appointment in the civil service until such time as the rules and regulations required thereunder had been established; and the fact that former rules had been abrogated, and that there were in existence no rules regulating the appointment of city officials, "did not give a free hand to every person who had

occasion to make appointments after the passage of the act and before the establishment of the rules." People v. Knox, (1899) 45 App. Div. 518, 61 N. Y. S. 469.

"Appointment" and "power to appoint."-The meaning of the word appointment" and what constitutes an appointment under the law are to the effect that the choice of a person to fill an office constitutes the essence of the appointment; that the selection must be the discretionary act of the officer or board clothed with the power of appointment; that while he or it may listen to the recommendation or advice of others, yet the selection must finally be his or its act, which has never been regarded or held to be ministerial. People v. Mosher, (1900) 163 N. Y. 32, 57 N. E. 88, 79 A. S. R. 552, affirming 45 App. Div. 68, 61 N. Y. S. 452; People v. Fitzsimmons, (1877) 68 N. Y. 514, questioning People v. Murray, (1875) 5 Hun 42. "If the civil service commissioners have power to certify to the appointing officers only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final, or if where more are certified the one graded highest must be appointed, then the civil service commission becomes and is the actual appointing power. To reach such a result, however, it must be held that the word appointment as used in the constitution is not to be given its usual and ordinary meaning, but may be so limited and restricted as to leave in the local authorities a mere ministerial duty, with no discretion, nor choice, nor responsibility in respect to the person to be appointed. Such a construction would completely nullify the provision of the constitution which confers the power of appointing city officers upon the local authorities of the municipality. A fair reading of the constitution leads to no such result." People v. Mosher, (1900) 163 N. Y. 32, 57 N. E. 88, 79 A. S. R. 552, affirming 45 App. Div. 68, 61 N. Y. S. 452.

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Selection as element of appointment.- The power of selection for a public office is and should be vested alone in the officers or boards authorized to appoint, although it is limited to persons possessing the qualifications required by the civil service statutes and rules, and at least some power of selection is necessary to constitute an appointment. People v. Mosher, (1900) 163 N. Y. 32, 57 N. E. 88, 79 A. S. R. 552, affirming 45 App. Div. 68, 61 N. Y. S. 452. 'If to appoint is merely to do a formal act, that is merely to authenticate a selection not made by the appointing power, then there is no constitutional objection to the designation of officers by a competitive examination, or any other mode of selection which Congress may prescribe or authorize. But if appointment implies an exercise of judgment and will, the officer must be selected according to the judgment and will of the person or body in whom the appointing power is vested by the constitution, and a mode of selection which gives no room for the exercise of that judgment and will is inadmissible. If the President in appointing a marshal, if the Senate in appointing its secretary, if a court or head of department in appointing a clerk, must take the individual whom a civil service board adjudge to have proved himself the fittest by the test of a competitive examination, the will and judgment which determine that appointment are not the will and judgment of the President, of the Senate, of the court, or of the head of department, but are the will and judgment of the civil service board, and that board is virtually the appointing power." Op. U. S. Atty.Gen. (1871) 516.

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Synonyms of "appoint."-The use of the word "nominate" instead of 'appoint" is of no moment. The words nominate," select," designate " or choose" would either of them answer the purpose, if used in the sense of appoint. People v. Fitzsimmons, (1877) 68 N. Y. 514, questioning People v. Murray, (1875) 5 Hun 42.

Power to appoint as involving power to remove.- In the absence of restraints imposed by the constitution or by statute, the power of appointment implies the power of removal when no definite term is attached to the

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office by law. People v. Lathrop, (1894) 142 N. Y. 113, 36 N. E. 805, affirming 71 Hun 202, 24 N. Y. S. 754; People v. Robb, (1891) 126 N. Y. 180, 27 N. E. 267, distinguishing People v. Board of Police, (1876) 67 N. Y. 475; People v. Brooklyn, (1896) 149 N. Y. 215, 43 N. E. 554, reversing 91 Hun 308, 36 N. Y. S. 172; People v. Board of Fire Com'rs, (1878) 73 N. Y. 437; People v. Morton, (1896) 148 N. Y. 156, 42 N. E. 538; People v. Scannell, (1901) 62 App. Div. 249, 70 N. Y. S. 983.

"The

As to limitations on power to remove, see infra, § 22 and note. Scope of appointing power.-"Under the Civil Service Law the appointing power is compelled to act upon the report of the board of civil service commissioners as to the rating of those examined by it, and to accept from those certified by the board the persons entitled to the appointments or promotions. When such a report is made by the proper board to the appointing officer, and such appointing officer acts upon such report, the appointment then becomes a valid appointment, and the person appointed becomes vested with the office to which he has been appointed. It is apparent that it would destroy the whole system of competitive examinations if the appointing officer would have a right to go beyond the report of the board and to refuse to accept it, on the ground that the eligible list as presented by those upon whom the responsibility rests of determining who should be upon such eligible list had not complied with the provisions of the statute in making up such list." People v. Sheffield, (1897) 24 App. Div. 214, 48 N. Y. S. 796. several provisions of the Civil Service Law clearly indicate that it was the intention of the legislature that all persons seeking employment in the civil service and who came within the provisions of the Civil Service Law should be declared to be eligible by certificate of the officers or boards created by such law. It was not the intention of the legislature that an appointment could be made subject to the approval of such officers or boards. In the noncompetitive class the appointing power may name or indicate to the civil service board the person whose appointment is desired, and if the board finds that such person is qualified and fitted for such position and so certifies, such appointment may then be made, and not until then. It would bring the administration of the Civil Service Law into disrepute if an appointment to office covered by it could be legally made, subject only to the approval of the officers charged with the execution of such law. We think such was not the intention of the statute." People v. Ingham, (1905) 107 App. Div. 41, 94 N. Y. S. 733, affirmed without opinion (1905) 183 N. Y. 547, 76 N. E. 1102. Form and delivery of appointment or commission. The commission need not be in any particular form, and the written appointment signed by the officer, or any paper signed by him, showing that he has made the appointment is sufficient, and the commission need not be delivered. There is no statute requiring its delivery, and there is nothing in the nature of an appointment or a commission which makes delivery to the person appointed a prerequisite to its validity; and unless the statute requires something more to be done, when the officer has executed the writing, with the intention by that act to make the appointment, and has thus discharged his whole duty in reference thereto, the appointment is a completed act. Marburg v. Madison, (1803) Cranch 137, 2 U. S. (L. ed.) 60; People v. Fitzsimmons, (1877) 68 N. Y. 514, questioning People v. Murray, (1875) 5 Hun 42. Where an officer has the undoubted authority to make an appointment, and has exercised that authority at the proper time, and the person appointed has accepted his office and entered upon the discharge of his duties, disregarding mere matters of form, the action of the officer must be upheld, if it can be without violating any rule of law. People v. Fitzsimmons, (1877) 68 N. Y. 514, questioning People v. Murray, (1875) 5 Hun 42.

Method of appointment as affecting duties. The method of an appointment is but one of convenience and does not affect the character of the duties to