be performed by the appointee. O'Grady v. Polk, (1909) 132 App. Div. 47, 116 N. Y. S. 290.

Cited. People v. Knox, (1899) 45 App. Div. 518, 61 N. Y. S. 469, on the necessity of promulgating rules and regulations before making appointments. See infra, § 10, note. See also supra, § 6, note.

§ 9. Unclassified service; classified service. The civil service of the state and of each of its civil divisions and cities shall be divided into the unclassified service and the classified service. The unclassified service shall comprise all elective offices, all offices filled by election or appointment by the legislature on joint ballot; all persons appointed by name in any statute; all legislative officers and employees, all offices filled by appointment by the governor, either upon or without confirmation by the senate, except officers and employees in the executive offices; all election officers, the head or heads of any department of the government, and persons employed in or who seek to enter the public service as superintendents, principals or teachers in a public school or academy or in a state normal school or college. The classified service shall comprise all positions not included in the unclassified service. All appointments or employments in the classified service, except those of veterans of the civil war, honorably discharged from the military or naval service of the United States, shall be for a probationary term not exceeding the time fixed in the rules. This is section 8 of the original Civil Service Law of 1899, as amended by L. 1902, ch. 270.

1. Classification.

II. Probationary term.

I. CLASSIFICATION.

Legislative power over classification. The act of making a classification can be affected only by some judicial proceeding, and cannot be reviewed or corrected by the legislature; but while the legislature has no power to review or set aside a classification already made, it has power to provide for a future different method of classification. People v. Keller, (1899) 158 N. Y. 187, 52 N. E. 1107, affirming 35 App. Div. 493, 54 N. Y. S. 1011.

Basis of classification.- Classification under the Civil Service Law is based upon compensation, the underlying principle being that those receiving the lesser emoluments are required to perform the less important duties. Op. Atty.-Gen. (1894) 179; People v. Wheeler, (1902) 56 Misc. 289, 106 N. Y. S. 450; People v. Kraft, (1911) 145 App. Div. 662, 130 N. Y. S. 363, affirmed (1912) 204 N. Y. 626; People v. McAdoo, (1906) 113 App. Div. 770, 99 N. Y. S. 324.

Nature of classifying power.- The determination of a civil service commission in classifying positions in the public service, although involving the

exercise of judgment and discretion, is more of a legislative or executive character than judicial or quasi-judicial. Simons v. McGuire, (1912) 204 N. Y. 253, 97 N. E. 526, reversing 145 App. Div. 471, 130 N. Y. S. 306; People v. McWilliams, (1906) 185 N. Y. 92, 77 N. E. 785, reversing People v. Whittet, (1905) 100 App. Div. 176, 91 N. Y. S. 675; 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; 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.

Mode of classification.- Classification of or in a position may be made without giving each grade a specific or differentiating name, and without placing each subdivision in a different class. People v. Connolly, (1916) 217 N. Y. 570, 112 N. E. 579, affirming (1915) 170 App. Div. 917.

Judicial control of classifications. In passing upon classifications the court is limited to such questions as may properly be reviewed in proceedings instituted by writ of mandamus, and not by certiorari. Simons v. McGuire, (1912) 204 N. Y. 253, 97 N. E. 526, reversing 145 App. Div. 471, 130 N. Y. S. 306; People v. Collier, (1903) 175 N. Y. 196, 67 N. E. 309; People v. McWilliams, (1906) 185 N. Y. 92, 77 N. E. 795, reversing People v. Whittet, (1905) 100 App. Div. 176, 91 N. Y. S. 675; 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; In re Dill, (1906) 185 N. Y. 106, 77 N. E. 789, affirming Dill v. Wheeler, (1905) 100 App. Div. 155, 91 N. Y. S. 686; People v. Wheeler, (1902) 56 Misc. 289, 106 N. Y. S. 450; Rowley v. Rochester, (1901) 34 Misc. 291, 69 N. Y. S. 160; People v. McAdoo, (1906) 113 App. Div. 770, 99 N. Y. S. 324; Hammond v. Ricker, (1910) 140 App. Div. 19, 124 N. Y. S. 406, affirmed without opinion (1910) 200 N. Y. 527 mem., 93 N. E. 1122. While, therefore, mandamus is the proper remedy to compel a correction of an illegal classification of positions in the public service, it will not lie when the determination of the commission does not constitute an abuse of discretion and is not illegal. In re Dill, (1906) 185 N. Y. 106, 77 N. E. 789, affirming Dill v. Wheeler, (1905) 100 App. Div. 155, 91 N. Y. S. 686; People v. McWilliams, (1906) 185 N. Y. 92, 77 N. E. 785, reversing People v. Whittet, (1905) 100 App. Div. 176, 91 N. Y. S. 675; People v. Kraft, (1911) 145 App. Div. 662, 130 N. Y. S. 363, affirmed (1912) 204 N. Y. 626 mem.; People v. McAdoo, (1906) 113 App. Div. 770, 99 N. Y. S. 324; Hammond v. Ricker, (1910) 140 App. Div. 19, 124 N. Y. S. 406, affirmed without opinion by (1910) 200 N. Y. 527 mem. 93 N. E. 1122. Mandamus does not lie to compel a municipal civil service commission to reclassify positions unless the state commissioners are made parties, as any reclassification is subject to their approval. Hammond v. Ricker, (1910) 140 App. Div. 19, 124 N. Y. S. 406, affirmed without opinion by (1910) 200 N. Y. 527 mem., 93 N. E. 1122. Nor can the constitutionality of a change in classification be attacked in mandamus proceedings brought against the mayor of a city, to which the civil service commissioners of the city and state are not parties. People v. Adam, (1906) 116 App. Div. 613, 101 N. Y. S. 925; Benchin v. Kempner, (1911) 143 App. Div. 125, 127 N. Y. S. 657.

It was formerly held that the duty of classification was quasi-judicial in its nature and was not reviewable by mandamus, but by certiorari. People v. Collier, (1903) 175 N. Y. 196, 67 N. E. 309, reversing 79 App. Div. 636, 80 N. Y. S. 1146, 78 App. Div. 620, 79 N. Y. S. 671; Blust v. Collier, 62 App. Div. 478, 70 N. Y. S. 774. But in commenting upon the decision in People v. Collier, (1903) 175 N. Y. 196, 67 N. E. 309, Werner, J., in Simons v. McGuire, (1912) 204 N. Y. 253, 97 N. E. 526, said: Three years of experience under that decision demonstrated that this court had in effect assumed the functions of the civil service commission, for every challenged decision of these officers was brought to this court as a question of law." "Heads of any department."- An officer who is in charge of a separate department of government, and whose duties are prescribed by statute, is

66

89

Unclassified and Classified Service

L. 1909, ch. 15

deemed to be the head of a department. Op. Atty.-Gen. (1909) 581; Roosevelt v. Draper, (1861) 23 N. Y. 318, 16 How. Pr. 137. Thus, the commissioner of records in the county of New York has been declared to be in the unclassified service as the head of a department of the county government. Op. Atty.-Gen. (1906) 490. The same ruling was made as to the commissioner of licenses of New York city. Op. Atty.-Gen. (1905) 403. But the street superintendent of the village of Saratoga Springs, who derived his appointment from the sewer, water, and street commissioner, and was expressly placed by statute "under the direction and control" of such commissioner, was held not to be the head of any department, and therefore to be within the classified service. People v. Gaffney, (1910) 69 Misc. 36, 125 N. Y. S. 762.

"All elective offices.". Elective offices within the meaning of the law are those filled by election of the voters in some political division of the state, and no office filled either by an election or an appointment by a board of supervisors is an elective office within the meaning of the statute. Matter of Phillips, (1910) 139 App. Div. 365, 124 N. Y. S. 60, affirmed without opinion (1910) 200 N. Y: 521, mem., 93 N. E. 1129.

"All legislative officers and employees.”—Legislative officers have been defined as those whose duties relate mainly to the enactment of laws, and it has been held that the qualification of an office or place as legislative is determined by the main duties thereof, and not by the fact that the incumbent is elected or appointed by the legislative body itself. O'Grady v. Polk, (1909) 132 App. Div. 47, 116 N. Y. S. 290; Op. Atty.-Gen. (1909) 577. The words "all legislative officers and employees" are used not only in connection with the state, but with each of its civil divisions and each of its cities, and manifestly contemplating that there shall be within the unclassified service of the state those who are officers or employees in bodies whose functions are limited to legislation; as either state, county or municipal legislative bodies. People v. Scully, (1900) 56 App. Div. 302, 67 N. Y. S. 839. Applying the foregoing tests, the unclassified service has been declared to include employees of the bill drafting commission (Legislative Law, §§ 24, 25) (Op. Atty.-Gen. (1913) 708), employees of the commission created by chapter 211, Laws of 1908, to investigate inferior courts (Op. Atty.-Gen. (1909) 577), and the city clerk, elected by the board of aldermen of the city of New York (O'Grady v. Polk, (1909) 132 App. Div. 47, 116 N. Y. S. 290). Employees in state agricultural schools. The teaching staffs of the state schools of agriculture at Alfred University, at Morrisville, Madison county, and at St. Lawrence University, are in the unclassified service as defined by this section, and other employees of such schools, who are paid by the state, are in the classified service. Op. Atty.-Gen. (1912) 111.

District superintendent of schools. The position of district superintendent of schools is within the provision of this section, and is in the unclassified service. Op. Atty.-Gen. (1911) 5.

Teachers in Indian schools.- Teachers in the Indian schools of the state are teachers of public schools within the meaning of the section, and are in the unclassified service. Op. Atty.-Gen. (1904) 277.

Op.

Sealer of weights and measures.- The position of sealer of weights and measures in cities of the second class is in the unclassified service. Atty.-Gen. (1909) 581.

Physicians to county jails.- Physicians to county jails are within the classified service and appointments to that office must be made in accordance with the provisions of the statute. Matter of Phillips, (1910) 139 App. Div. 365 124 N. Y. S. 60, affirmed without opinion by (1910) 200 N. Y. 521 mem 93 N. E. 1129.

History. For a history of probationary trials as a means of determining the merit and fitness of candidates, see 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.

Validity. The adoption of the civil service provision of the constitution (see supra, § 1, note) did not repeal or suspend the existing civil service statutes and rules, so as to render a probationary term of appointment improper or illegal as a test of merit and fitness. 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.

Purpose. The probationary term was provided for in order to enable the head of the department, who has made the appointment, not only to ascertain the fitness of the probationer, but to learn whether on the whole he is a satisfactory and agreeable person to serve in the position, and one who will become a reasonably efficient officer. People v. Kearny, (1900) 164 N. Y. 64, 58 N. E. 14, affirming 49 App. Div. 125, 62 N. Y. S. 1097.

Applicability. It is doubtful, notwithstanding the general provision of the section, whether a probationary term is ever applicable to an appointment in the exempt class. Matter of Christey, (1914) 84 Misc. 172, 145 N. Y. S. 685.

Relation to fixed term. The probationary period is a separate and distinct term, and does not run into and become part of the permanent tenure. People v. McAdoo, (1906) 110 App. Div. 740, 96 N. Y. S. 445, affirmed without opinion by (1906) 184 N. Y. 575 mem., 77 N. E. 1193. But the probationary appointment ripens into a permanent appointment automatically without any affirmative act on the part of the appointing officer, and unless he removes the appointee at the end of the probationary period the appointee serves under his original appointment; the only difference in his status thereafter being that he may not be summarily removed. McVay v. New York, (1906) 116 N. Y. S. 908.

Commencement.— The probationary term of an appointee begins from the date when he commenced work, and not from the date of his appointment. O'Grady v. Low, (1902) 74 App. Div. 246, 77 N. Y. S. 661.

66

Duration.-"A probationary term " or a period of probation implies definite or stated length of duration, especially so when such term or period is to be provided in advance, and it is not " any time" within a fixed period of duration, unmeasured by the rules, and measurable by the pleasure or will of the appointing power. Probation or probationary implies the purpose of the term or period, but not its length; the rules could fix its length, but could not make its length provisional in point of time, for that would be to unfix it or annex an unauthorized item. People v. Kearny, (1900) 164 N. Y. 64, 58 N. E. 14, affirming 49 App. Div. 125, 62 N. Y. S. 1097; People v. Woods, (1915) 168 App. Div. 3, 153 N. Y. S. 872. A probationary appointee, therefore, is secured an experimental trial for the period prescribed by the law, or the rules made in pursuance thereof, and he is not to be condemned before the time given him to show his fitness has expired, except after an opportunity to explain. People v. Kearny, (1900) 164 N. Y. 64, 58 N. E. 14, affirming 49 App. Div. 125, 62 N. Y. S. 1097; People v. Guilfoyle, (1901) 61 App. Div. 187, 70 N. Y. S. 442; People v. De Forest, (1903) 83 App. Div. 410, 82 N. Y. S. 59.

Determination of fitness.-The previous record of an applicant, who is serving his probationary period, may be examined, and a permanent appointment denied, although the applicant is on the eligible list. The investigation is not confined to his conduct during the probationary period, but may cover his conduct while in the service of former employers. People v. Woods, (1915) 168 App. Div. 3, 153 N. Y. S. 872.

8 10

Rules for Classified State Service

L. 1909, ch. 15

Authority to give notice of rejection.— Though a city board of education was authorized by the city charter to act through the instrumentality of committees, whose determinations should be subject to the approval or disapproval of the board, it was held that a notice by a subcommittee with power of appointment, subject to the confirmation of the board, was not sufficient to terminate a probationer's term, where the board's ratification of the committee's action did not occur until after the expiration of the probationary period. People v. Board of Education, (1916) 217 N. Y. 479, reversing (1915) 170 App. Div. 395, 156 N. Y. S. 66, reversing 155 N. Y. S. 181.

Time of notice of rejection.- A notice sent to a probationary appointee on the last day of the period, that his services have been unsatisfactory and that he will be dismissed at the close of business on that day, terminates his right to the position; and his application for reinstatement, based on a later notice of suspension without pay, directing him to appear for trial and stating that the prior notice is rescinded, will be denied. People v. Henderson, (1912) 77 Misc. 25, 135 N. Y. S. 782. Even a notice served as soon as possible after the expiration of the period, where the appointee, in violation of orders, has absented himself so that service cannot be made before the expiration of the period, has been held sufficient. Dalton V. Darlington, (1908) 123 App. Div. 855, 108 N. Y. S. 626. And conversely, in People v. Coler, (1900) 56 App. Div. 171, 67 N. Y. S. 652, appeal dismissed by (1901) 1C6 N. Y. 638 mem., 60 N. E. 1118, it was held that the comptroller of the city of New York was not obliged to wait until the expiration of the three months during which a probationary appointee was entitled to hold a position before notifying him that his services would be dispensed with at the expiration of that period.

Dismissal at expiration of term.- At the expiration of a term of probation an employee may be dismissed without trial or hearing, where the person vested with the power to dispense with the services acts in good faith. People v. Guilfoyle, (1901) 61 App. Div. 187, 70 N. Y. S. 442.

As to discharge during or after probationary term, see infra, § 22, note. As to temporary appointments, see infra, § 15.

Cited. In People v. Whitehead, (1916) 157 N. Y. S. 563, this section was cited in connection with a ruling on the validity, under section 22, of a probationary appointee during his term. See infra, § 22, note, III. Positions Covered by Restrictions.

§ 10. Rules for the classified state service. The commission shall from time to time make rules for the classification of the offices, places and employments in the classified service of the state, and from time to time rules for the classification of the offices, places and employments in such civil divisions thereof, except cities, as after due inquiry by the commission shall be found practicable, and for appointments and promotions therein and examinations therefor, not inconsistent with the constitution and the provisions of this chapter, and shall amend the same from time to time. No examination or registration shall be required of persons to be employed as laborers in the state service. Such rules and any modifications thereof, shall take effect when approved by the governor. Due notice of the contents of such rules, and of any modifications thereof, shall be given by mail