L. 1909, ch. 15 Competitive Class 8 14 determine whether or not the defeated candidate should have been in a better place in comparison with those who were placed before him, is certainly not within the purview of a writ of certiorari." People v. Roosevelt, (1897) 19 App. Div. 431, 46 N. Y. S. 517. Relevancy of examination questions to duties. The relevancy of questions to the duties of a position are matters within the discretion of the commissioners, and with which the court, in the absence of evidence showing abuse, will not interfere. Darling v. Maguire, (1911) 70 Misc. 597, 129 N. Y. S. 385. The courts will not conduct or supervise civil service examinations, nor review them by certiorari, as the official acts of the commissioners are not judicial in a technical sense, but are executive, ministerial and administrative. People v. Creelman, (1912) 150 App. Div. 746, 135 N. Y. S. 718. Physical examinations. When a municipal civil service regulation requires a special physical examination, such examination must be had in the manner prescribed; and no other method of examination is a compliance with the rule, even though the certificate of another physician was accepted by the board as final. People v. Gleason, (1898) 32 App. Div. 357, 53 N. Y. S. 7. Where a statute provided for physical examination and the appointment of such as 66 are found on such examination to be physically qualified for police duty," it was held that the determination of a police surgeon as to an applicant's physical incapacity to perform such duties was conclusive and not reviewable by mandamus. People v. Casey, (1901) 66 App. Div. 211, 72 N. Y. S. 945. Fraud in examination. The commission may reject the examination papers of an applicant, and refuse him standing upon the eligible list, where it appears that fraud has been practiced, or deception attempted. And where it appeared that the marks and ratings of the examiners had been forged the burden is on the relator to show that he was in no way responsible therefor. People v. Knox, (1903) 78 App. Div. 344, 79 N. Y. S. 989. Appointments outside of Albany county.-The state civil service commission has power, where the duties of a position in the state service are confined to a locality outside of Albany county, if they find it practicable, to confine appointments to such position to residents of the judicial district including such locality, irrespective of the fact that there are civil war veterans on such list, who are not residents of such judicial district; and the exercise of the power is neither in conflict with the provisions of the constitution, nor the statutes giving preference in appointment and promotion to civil war veterans. Op. Atty.-Gen. (1914) 154. Where a person took the examination given for Supreme Court stenographer in the second judicial district, which includes Kings, Richmond, Suffolk, Queens and Nassau counties, and was at the time residing in Kings county, the fact that he afterward removed his residence to Richmond county does not give him preference as a resident of that county over other persons not residing there for appointment as stenographer by a justice resident of Richmond county, since the position is in the state and not in the county service. Op. Atty.-Gen. (1914) 30. Requirement of bond from appointee generally.—“Under our system of government it has been thought wise to hold public officials to strict accountability for the management of their offices, and for the faithful accounting for public moneys coming into their hands. So strict is the law in this regard, that in most cases they are held responsible for losses which occur even without their fault." Chittenden v. Wurster, (1897) 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809, reversing 14 App. Div. 483, 43 N. Y. S. 1035. To the same effect see Tillinghast v. Merrill, (1896) 151 N. Y. 135, 45 N. E. 375, 56 A. S. R. 612, 34 L. R. A. 678, affirming 77 Hun 481, 28 N. Y. S. 1089; People v. Coler, (1898) 31 App. Div. 523, 52 N. Y. S. 197, affirmed without opinion by (1898) 157 N. Y. 676, 51 N. E. 1093; Mercer v. Floyd, (1898) 24 Misc. 164, 53 N. Y. S. 433. Prior to the amendment to the effect that 8 15 Exemption from Examination L. 1909, ch. 15 "when the position to be filled involves fiduciary responsibility, the appointing officer, where permitted by law, may require the appointee to furnish a bond," it was held that no bond could be required of persons within the competitive class. Chittenden v. Wurster, (1897) 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809, reversing 14 App. Div. 483, 43 N. Y. S. 1035. One of the principal objections to placing certain positions in the competitive class was that the appointing officers, although responsible for the conduct of the appointees, formerly had no power to require a bond, and this provision was inserted to avoid such objection. Op. Atty.-Gen. (1903) 222. "Fiduciary responsibility" as affecting right to require bond.— This term embraces trust, confidence, and refers to the, integrity, the fidelity of the party trusted, rather than to his credit or ability; and contemplates good faith, rather than legal obligation. Smith v. Ogilvie, (1891) 127 N. Y. 143, 27 N. E. 807. The state treasurer is responsible to the state for the fidelity of all subordinates in his office, and may require bonds from the deputy, accountant and transfer officer, chief clerk, cashier, assistant cashier, and confidential clerk. He may require all subordinates in the competitive class, who occupy positions involving fiduciary responsibility, to furnish bonds, but cannot require any other civil service appointee in his department to furnish a bond. Op. Atty. Gen. (1903) 222. 66 Limitation on right to require bond.- The words "where permitted by law," as used in this connection, were intended by the legislature to mean where allowed or not prohibited by law." Op. Atty.-Gen. (1903) 222. Failure to require bond as affecting liability of appointing officer.— The appointing officer is personally liable for a defalcation of his appointee where, under this section, he could have required a bond from the appointee. Op. Atty. Gen. (1909) 861. Salary after establishment of new grades of position.- Where a civil service incumbent, after the adoption of a resolution providing for the establishment of ". new grades of position in addition to those already existing," and fixing the salaries and positions so provided, received no new appointment to any position so created, but continued to perform the same duties, he was not entitled to the salary fixed by the new resolution. Smith v. New York, (1913) 83 Misc. 98, 144 N. Y. S. 676. § 15. Exemptions from competitive examination. Positions in the competitive class may be filled without examination as follows: 1. Whenever there are urgent reasons for filling a vacancy in the competitive class and there is no list of persons eligible for appointment after competitive examination, the appointing officer may nominate a person to the state or municipal commission for non-competitive examination, and if such nominee shall be certified by such commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination, but such provisional appointment shall not continue for a longer period than four months, nor shall successive provisional appointments be made to the same position under this subdivision. L. 1909, ch. 15 Exemption from Examination 8 15 2. In case of a vacancy in a position in the competitive class where peculiar and exceptional qualifications of a scientific, professional or educational character are required, and upon satisfactory evidence that for specified reasons competition in such special case is impracticable and that the position can be best filled by the selection of some designated person of high and recognized attainments in such qualities, the state or municipal commission may suspend the provisions of the rule requiring competition in such case, but no such suspension shall be general in its application to such place, and all such cases of suspension shall be reported in the annual reports of such commissions with the reasons for the same. 3. When the services to be rendered by an appointee in the state service are for a temporary period not to exceed one month and the need of such service is important and urgent, the appointing officer may select for such temporary service any person on the proper list of those eligible for a permanent appointment without regard to his standing on such list. Amended by L. 1915, ch. 361, by substituting "four" for "two" and "provisional" for " temporary" in subd. 1 near the end. The section is substantially section 14 of the original Civil Service Act of 1899, as amended by L. 1902, ch. 355. Probationary appointments: see supra, § 9, note. Power to make temporary appointments generally. If officers or employees are subject to competitive examinations, then temporary appointments are authorized by law, pending the making of an eligible list; but if positions are exempt from competitive examinations, then appointments can be made without regard to such list. Benchin v. Kempner, (1911) 143 App. Div. 125, 127 N. Y. S. 657. Relation of temporary to permanent appointment.- A temporary appointment gives the appointee no preference as to permanent appointment. Darling v. Maguire, (1911) 70 Misc. 597, 129 N. Y. S. 385. Nor can it ripen into a permanent appointment. Such a result would defeat the entire scheme of civil service, and nullify the constitutional provisions relating thereto. People v. Scannell, (1899) 32 Misc. 392, 66 N. Y. S. 182; Darling v. Maguire, (1911) 70 Misc. 597, 129 N. Y. S. 385. "Peculiar and exceptional qualifications."-"Any appointment made under subdivision 2 of the section is exceptional, and the appointee is thereby taken out of the competitive class, where those holding a similar position ordinarily belong, and he is pro hac vice placed in a noncompetitive class, and thus becomes subject to removal under circumstances applicable to persons in such class. Such a construction co-ordinated the manner of removal with the manner of appointment in the particular instance and offends neither the spirit nor the letter of the Civil Service Law." People v. Travis, (1915) 169 App. Div. 203, 154 N. Y. S. 403. Emergency appointments.- When the civil service list of those eligible to appointment has been exhausted, the appointing officer may appoint other persons, and continue them as long as eligibles are not available, provided § 16 Promotion, etc. L. 1909, ch. 15 the need of such appointees is a public emergency, within the meaning of the municipal civil service rules. This rule has been applied to a watchman in the Brooklyn Disciplining School for Boys (Gallagher v. New York, (1906) 115 App. Div. 662, 101 N. Y. S. 229), to a temporary nurse appointed by the department of charities in the city of New York after the department was informed by the secretary of the civil service commission that no eligible list from which to make appointments to that position was in existence (McBride v. New York, (1900) 56 App. Div. 520, 67 N. Y. S. 550). The superintendent of fires and members of the fire patrol in the state forest preserve are emergency employees, and are exempted from civil service examination, but the state civil service commission is required to certify their payrolls the same as other state employees. Op. Atty.-Gen. (1909) 583 Trade instructors at the Elmira Reformatory cannot be called upon to perform the duties of guards, except in case of an emergency, unless they shall have previously passed the competitive examination required for such position. Op. Atty.-Gen. (1908) 491. As to certification of payroll of emergency employees, see infra, § 20, note. § 16. Promotion; transfer; reinstatement; reduction. Vacancies in positions in the competitive class shall be filled, so far as practicable, by promotion from among persons holding positions in a lower grade in the department, office or institution in which the vacancy exists. Promotions shall be based upon merit and competition and upon the superior qualifications of the person promoted as shown by his previous service, due weight being given to seniority. For the purposes of this section an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion. No promotion, transfer or reinstatement shall be made from a position in one class to a position in another class unless the same be specially authorized by the state or municipal commission, nor shall a person be promoted or transferred to a position for original entrance to which there is required by this chapter or the rules an exami· nation involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person, unless he shall have passed the examination or attained a place upon the eligible list for such higher position. This is substantially section 15 of the original Civil Service Law of 1899. Reinstatement as prerequisite to right to recover salary: see infra, § 20, note. Limitations on removal: see infra, § 20. Purpose of constitutional provision. The purpose of the constitutional provision (Art. 5, § 9) that promotions shall be made according to merit and fitness to be ascertained, so far as practicable, by examination, was "to declare the principle upon which promotions in the public service should be made to recognize in that instrument the principle of the existing statutes upon the subject, and to establish merit and fitness as the basis of such appointments and promotions in place of their being made upon partisan and political grounds." People v. Lyman, (1898) 157 N. Y. 368, 52 N. E. 132, affirming 30 App. Div. 135, 50 N. Y. S. 444, 51 N. Y. S. 641. See also notes to §§ 13 and 14, supra. Requisites of promotion.- This section shows that promotions are made from a lower to a higher grade, based upon superior qualifications of the person promoted. Under the civil service rules those eligible for promotion must have previously served in a lower grade, as the purpose in view is to reward the person advanced for his previous excellence. People v. Cropsey, (1915) 215 N. Y. 451, 109 N. E. 550, reversing 166 App. Div. 903, 151 N. Y. S. 1139. Thus, in People v. McGuire, (1910) 139 App. Div. 680, 124 N. Y. S. 552, it was held that rule 15 of the municipal civil service rules of the city of New York, providing for an efficiency record of employees, to be considered on an examination for promotion, required a carefully prepared record made from month to month of services which have been rendered; that it contemplated a record made at a time when the person was not an active candidate for promotion, and should deal with “ comparative conduct, seniority and efficiency in previous service," and where no such record was kept, but prior to an examination for promotion in the department of docks and ferries a record was filed giving an employee credit for fidelity, excellency, etc., and stating that other employees were good," "very good," etc., but without stating the period of service of the several applicants, the one rated as excellent," etc., was not entitled to a higher credit than the others. 66 66 Promotion under guise of transfer.- A promotion is an advancement to a higher position, an elevation or preferment, and if the practical working of the civil service requires a transfer, such transfer can be made only when it does not in fact constitute a promotion, as promotions under the name of transfers are illegal evasions, and contrary to the express terms of the constitution. Hale v. Worstell, (1906) 185 N. Y. 247, 77 N. E. 1177, 113 A. S. R. 895, affirming 107 App. Div. 624, 95 N. Y. S. 1131; People v. Milliken, (1910) 68 Misc. 101, 124 N. Y. S. 924, reversed on other grounds (1910) 140 App. Div. 762; Op. Atty.-Gen. (1913) 108. Increase of salary as constituting promotion. While the civil service rules merely establish a classification, and do not fix or control salaries, every question of an increase in salary must be considered with reference to this section. O'Malley v. Board of Education, (1914) 160 App. Div. 261, 145 N. Y. S. 645; People v. Tully, (1905) 108 App. Div. 345, 95 N. Y. S. 916, 1153; Powell v. New York, (1901) 65 App. Div. 421, 72 N. Y. S. 990; People v. Knox, (1902) 71 App. Div. 306, 75 N. Y. S. 896. Increase of salary may depend upon circumstances, but it is generally understood to mean a promotion of the recipient, due to his qualifications, and the more efficient discharge of his duties. Slavin v. McGuire, |