REGULATING THE EXERCISE OF POWER OF APPOINTMENT GIVEN BY

THE CONSTITUTION.

A question of much interest and importance has arisen more than once, whether in cases where the power of appointment is given to a public officer by the Constitution, the exercise of the power may be regulated by the Legislature in respect to the qualifications of the appointees.

The Commission, after careful consideration, is of opinion that this question must be answered in the affirmative.

A delegated power to appoint a public officer is an authority to select a qualified person for the position.

If the power delegated is not in terms unlimited, some limitations are necessarily implied. It does not follow that under a power vested in an officer to appoint, he may appoint himself, or some person who is physically or mentally incapable, or an alien or infant. It is implied that he shall appoint a qualified person, suitable for the position, and capable of serving the public. A naked power to appoint does not embrace as incidental to it the right to determine the qualifications of the appointee any more than it does the right to fix the compensation and to prescribe the duties.

Under a government of law with the source of power in the people, the right to regulate the exercise of power by public officers inheres in the law-making body when not expressly located elsewhere. The Constitution is the paramount law, it is true, but it is nothing more than a law emanating from the same source as statute law, only in a different manner. The Constitution does not exclude the exercise of legislative power, except when it so declares.

When the Constitution is silent the legislative power is not re-. strained. When the Constitution prescribes qualifications for office, or gives in terms unlimited discretion to an officer to appoint, the Legislature cannot interfere. But in cases where the Constitution neither creates the office to be filled, nor prescribes the qualifications, but simply recognizes the existence of a statutory office, and gives a naked power to another officer to fill it by appointment, the whole subject of qualifications, tenure, compensation and duties remains with the Legislature for its regulation. It has not been taken from that body. It is within the ordinary sphere of legislation. And the Legislature may act or not in its discretion given by the Constitution.

It is conceded that the power to appoint cannot be impaired by legislation, but regulation of the exercise of a power does not impair the power. It only defines the manner in which it shall be exercised. That is the function of legislation, and such details are not usually embraced in the fundamental law. The power to prescribe qualifications must reside somewhere. There is no officer above the law or independent of the law. The law-making body

instead of the will of an individual must declare what class of persons shall be deemed qualified to hold office. This leaves the power free to be exercised from the class possessing the requisite qualifications. It is conceded the Legislature might prescribe irrational qualifications having no relation to the office to be filled, such as the color of the eyes or hair, or name of the person, and such regulations might be disregarded as capricious, and a disfranchisement or denial of right secured to citizens by the Constitution.

But qualifications relating to fitness for the service, such as citizenship, age, capacity, and intelligence, concern the public welfare, and are legitimate subjects of legislative control, in the absence of express constitutional restriction.

Some views expressed by the Court of Appeals in the case of the People, ex rel. Furman et al., vs. Clute, 50 N. Y. 451, upon the question of legislative power, are pertinent and suggestive. In reference to statutory offices the court says: "The authority which confers a power, and may take it away may, in bestowing it, limit and restrict its exercise as it sees fit, so far as it is not specially prohibited therefrom; and may within that limit say for how long, in what manner, and upon what objects it shall be exerted. Certainly, if the Legislature may say to the voter, You shall not vote for any one for this office, but it shall be appointive; it may say, You shall not vote for any one for this office who is not free from this disqualification which we now declare. .. The Legislature may not put upon any elector a personal restriction from voting for any officer who may be elective, or whom it may declare elective, save such restriction as is imposed by the Constitution, for from that it is especially prohibited. But it may, in the exercise of its judgment, for the public good, limit the number from whom the elector may select, for thus to legislate is within the general and sovereign power of legislation which it constitutionally possesses."

If the constitutional right of an elector in the use of the ballot may be limited in respect to the number from whom his selection for public office may be made, it is no less clear that for the same high purpose, the public good, the number from whom appointments may be made may also be limited. The power to appoint is not more sacred or important than the right to vote. Both are protected by the Constitution, but if the right to vote can be regulated by the general and sovereign power of legislation, the right to appoint, which is certainly no higher, must be subject to the same control.

The case of Menges vs. The City of Albany, 56 N. Y. 374, has reference only to the exercise of judicial power by the courts for judicial purposes, and does not relate to selections for public office in respect to which the public welfare is concerned. This case does not, therefore, impair the doctrine enunciated in the case of Clute.

OPINIONS OF THE ATTORNEY-GENERAL.

The Attorney-General has been asked a few times for advice, and has furnished three official opinions on questions of public interest. One of these relates to the right of women to compete in the examinations, and for official appointments; another to the location in the public service of the employes of Excise Boards; and the third to the powers and duties of Mayors in respect to municipal regulations. These opinions appear in the Appendix.

POLITICAL ASSESSMENTS.

One of the incidental objects contemplated by Civil Service reform from the outset has been the abolition of the abuse of political assessments upon public officials.

This abuse had reached such scandalous proportions that the public treasury was considered a source from which partisan committees might replenish their campaign revenues, and leading men boldly maintained the proposition that there was an implied contract on the part of a man accepting a public appointment to contribute a percentage of his salary to the uses of the party under which he held office. This conception that public offices belong to party, to be utilized for partisan ends, instead of being trusts for the public welfare, is the vital error of the spoils system.

From this mistake have sprung the abuses in practice that have demoralized political parties, and often brought discredit on public administration, and which have made the demand for reform so urgent and widespread.

The statute contains a provision (section 11) intended to correct this evil, and to protect public officials from being the prey and the instruments of partisan managers. And the same spirit pervades all the rules, regulations, and methods brought into existence under the

statute.

The Commission has made inquiry to ascertain to what extent there has been an abatement of the practice of political assessments, and is gratified to report that the information received indicates that the evil has very greatly declined, and that public servants feel a degree of independence of partisan oppression, and a security founded on character and efficiency that have not been felt before in a generation.

EXTENSION OF THE SYSTEM TO OTHER STATES.

Since the last report a Civil Service Act has been passed by the Legislature of Massachusetts, which in its general features is based upon our State law. It applies to the service of the State and of all of its cities, twenty-four in number. The application of the new system to the service of the cities as well as to that of the State is under the sole direction of the Civil Service Commission, a provision that secures not only uniformity of procedure, but also great economies in the administration of the law.

A highly competent Commission has been appointed by the Governor and Council, and the rules prepared by this Commission have been recently promulgated. They closely follow the rules for this State, but in addition to the regulation of the permanent service, they provide for the registration of persons desiring employment as laborers by the city of Boston, and for their selection from the register without reference to partisan considerations.

A Civil Service bill has been recently introduced in the Legislature of Indiana, and similar bills have been prepared for introduction into the Legislatures of Illinois and Maryland, when they

convene.

Governor Pattison, of Pennsylvania, in his recent annual message, urges the preparation and passage of such a law. There may have been similar movements in other States that have escaped our observation, but the general and growing interest in the regulation and improvement of the public service is evinced in the action taken in the important States above named.

REVIEW OF THE WORK.

Recalling the fact that two years have not elapsed since the passage of the "Act to regulate and improve the Civil Service of the State of New York," May 4, 1883, the Commission feel at liberty to express their satisfaction at what has been thus far accomplished since their appointment. No violation of the eleventh section of the amended Act touching political assessments has been brought to the knowledge of the Commission.

The classification of the Service of the State, a task of no slight difficulty, the preparation of the rules and partial appointment of State Examiners, after conferring with the heads of departments and Institutions, stated in its first report, have been supplemented during the past year, under the Amendatory Acts, by important and substantial progress; the improvement of the classification of the State Service with the preference given by law to honorably discharged Union soldiers and sailors, the increase of positions in the competitive list, the practical inauguration of competitive and other examinations under unexceptionable Boards of Examiners, the approval by this Commission of the elaborate regulations prepared by experts for the cities of Brooklyn and New York, including those for the Firemen and Police, and the approval of regulations similarly in harmony with those of the State, for the cities of Rochester, Auburn, Yonkers, Long Island, Poughkeepsie, Utica, Binghamton, Cohoes, Ogdensburg, Kingston, Albany, Troy, and Elmira.

The enlargement of the sphere of Civil Service 'methods, and the rapid progress in extending the competitive schedules, seems to have been due to the growing conviction among the people that in public as in private life competition is the true test of merit, that the right to compete is a natural right of each citizen, a right to which the State by its popular education contributes large advantages. At the same time our people recognize the fact that in the

public business, in the benefits and expense of which they are alike interested, the State is entitled to the highest merit attainable under impartial rules.

Substantial progress has also been made in the practical use of the methods adopted by numerous examinations for a variety of positions, in all departments of the service, followed by appointments in accordance with the rules from the persons examined.

There may also be remarked the largely increased interest in the subject on the part of the people at large, and among the officials in the public service, the diffusion of a better knowledge of the principles, and the nearly universal acceptance of the truism that public trusts are not legitimate subjects of patronage, but like positions in any other well-ordered business, should be held by those who can best administer them for the public welfare, and that a properly regulated Civil Service is the best agency yet devised for bringing the administration of public affairs to business principles.

The Commission believes that the preliminary work of organization and preparation for the application of Civil Service methods in the State at large, and in the cities, a task both difficult and enbarrassing, has been brought to the point where its usefulness can be tested.

The great diversity in the character of the State service, and also in the municipal service, the vast number of persons employed, the variety in the kind and degree of qualifications required for different positions, have rendered the duty of proper classification, of distribution under appropriate schedules, and of methods of examination and selection of Boards of Examiners, a work of serious. delicacy and responsibility, in which the excellent antecedent work under the National Act afforded little assistance, on account of the restricted sphere of application of the national rules.

The Civil Service Statute and the rules and organization to apply its methods became operative when all, or nearly all, positions in the State, and in the cities, were occupied by incumbents previously selected. The methods have no application to those incumbents, except for promotion.

These methods can, therefore, only be applied to new appointments as positions become vacant by death, resignation, or removal. These processes are proverbially slow, except the latter, which has been biennially rapid in the past.

The fruits of Civil Service methods will, therefore, only become gradually apparent, but of its beneficial results there can be no doubt. There can be no mistake in the fundamental principle that has for its object the selection of the best and most competent men for the public service, and the corollary from that principle is unquestionable, that the selection of public servants for the subordinate positions should not be abandoned to the unrestrained will of the head of an office, and the machinations of partisan committees, but should be made by disinterested and competent men, under fixed and impartial rules guaranteeing fair play to merit.

[Assem Doc. No. 42.] 5