lieve one warrant clerk in an office where the duties were The court went on to consider the classification of positions and said: "Such a construction would be too narrow and burdensome, and we think not justified. As to the other positions in which competitive examination is not practicable, the statute itself furnishes a satisfactory rule; it provides as follows: Officers elected by the people and the subordinates of any such officer, for whose errors or violation of duty such officer is financially responsible and the head or heads of any department of the city government and persons employed in or who seek to enter the public service under the educational departments of any city, and any subordinate officer who by virtue of his office has personal custody of public moneys or public securities, for the safekeeping of which the head of an office is under official bonds, shall not be subject to the regulations prescribed pursuant to this section.' (§ 8, as amended by L. 1884, ch. 410.) This statute bears the impress of careful study and thought. 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. (Tillinghast v. Merrill, 151 N. Y. 135.) To insure an accounting they are required to give official bonds. If they delegate to appointees the handling of public moneys, they still remain responsible for their acts and usually protect themselves by requiring such appointees to furnish bonds. All these facts are evidently taken into consideration in framing the provision in question. It was not thought to be just to hold an official responsible for the acts of an employee who necessarily had the custody of public moneys when the official had no choice in his selection. Under the rules established by the civil service commission, the appointment must be made from a list of three who are certified as standing the highest. Neither of the three persons may be personally responsible. The officer has no power to demand a bond or other security; and yet, upon his own personal responsibility he may be compelled to intrust the appointee with the handling of the entire tax receipts of a state, or of a large and populous city. The legislature was not willing to release officials from responsibility for public moneys, and it did not deem a civil service examination as practicable or a sufficient protection to such officers; it, therefore, and we think properly, exempted such positions from the general operation of the act.” It is well to remember that the statute which they were discussing has been repealed in 1899, and also that the statement of the court, "The officer has no power to demand a bond or other security," no longer holds good since section 14 of the present Civil Service Law specifically empowers the officers to require bonds. The court then went on to hold that the classification by the mayor (who then took the place of a municipal civil service commission) is not void, though it might be voidable, saying: "Such a classification is not void; it may be voidable, for his action is subject to review; but, until it is judicially determined that his classification was erroneous, it is a protection to the subordinate heads of departments and employees acting thereunder. The appointments were made in accordance with the statute and the classification as it then existed." We should bear in mind that the language of the court with regard to what positions should be exempt from examination is obiter, the real basis of the decision being: 1. That the Constitution was not self executing. 2. That the action of the mayor in classifying positions would not be presumed to be illegal, and 3. That a taxpayer's action was not the proper remedy. The opinion of Gray, J., was based upon the theory that the Constitution should be considered self executing, and further that the positions under consideration were such that competency to fill them could reasonably be based upon competitive examination. Of the question as to whether competitive examination in any case is practicable, he said: "The question is necessarily a judicial one. Whether, in a given case, a competitive examination is practicable to ascertain the merits and fitness of the applicant for the place, is mainly a question of legal construction; which is to be determined by reference to the requirements of the office and by the use of judgment, aided by facts of the case. Whether a classification, or a determination made as to the method of appointment, is in conflict with the constitutional provision, or is in evasion of its spirit and purpose, must be a question for the ultimate decision of the courts. There should be no ground for the fear, suggested by the appellants' counsel, of an undue interference by the courts with the exercise of discretionary powers vested by law in the administrative departments of government. The exercise in good faith of administrative judgment, rested upon facts and circumstances, which leave the question of practicability of an appointment upon the examination test prescribed, a fairly debatable one, should not and will not be disturbed. Nor is there any inclination to intrude upon the sphere of any legislative action, when, in the enactment of the laws called for by the constitutional provision, or deemed requisite in some exigency, it shall undertake to classify, or to declare with respect to the practicability of competitive examination in a class of cases; provided that its action is in the exercise of a reasonable discretion and not open to the charge of intending a violation of the fundamental law. * * * The duty of the court is in no wise to classify, but to pass upon a question of classification, in view of the requirements of the Constitution." In speaking of the positions under consideration he said: * * * "In almost all of the positions in the civil service, confidence must be reposed in the appointee and his honesty is an important requisite, and, if the practicability of competitive examination were made to depend upon such considerations merely, it would go far to masculate the vigor of the reform intended to be effected by the constitutional amendment. The disposition should not be to be too liberal in the construction of the term "practicable," when applied to competitive examinations. It will not suffice, to avoid its applicability to some positions, that it requires the repose of some trust in the appointee. This is not the true significance of the language of the section. It is perfectly practicable to ascertain the fitness of a person to be trusted in a clerical or other subordinate position in a department through the methods of the examinations provided for by the regulations. The service is a public one and rarely confidential as in the case of private employment." O'Brien, J. wrote a long opinion in which he concurred with all said by Gray, J., but went further, saying that when the justices at special term and in the appellate division had all agreed that the positions were among those in which competitive examination would be practicable, he did not consider that the Court of Appeals had any power to go behind this finding. While some of the obiter language in the prevailing opinion defining those positions in which competitive examination would be impracticable is strongly in favor of the contention that the cashiers in the automobile bureau should be classified as exempt, nevertheless it is well to notice that the court was upholding, not upsetting, the action of the officer corresponding to the Civil Service Commission, and also that the court specifically held that such action, if erroneous, was not void, but only voidable on being reviewed. People ex rel. Sweet v. Lyman, 157 N. Y. 368. (December 1898). (Opinion of Martin, J., Parker, Gray and Vann, JJ., concurring, Haight, J., concurred on civil service questions, dissented on veterans' act, wrote dissenting opinion regarding latter. Bartlett, J., wrote a generally dissenting opinion in which O'Brien, J., concurred.) The position of Special Agent in the Excise Department had been classified by the State Civil Service Commission as competitive. The relator, who was a civil war veteran, had passed a competitive examination and had been appointed from the competitive list for probationary term. On the expiration of his probationary term he had been notified that his services were no longer required as his probation had not been satisfactory. He sought mandamus to compel the Commissioner of Excise to reinstate him. It was held that the Constitution of 1894 did not change the existing provisions in the Civil Service Law regarding probationary appointment, that being an excellent method of testing fitness, and one of the methods which could well be applied under the exception in the Constitution implied by the words "so far as practicable." It was further held that the relator was not protected by the veteran act, as his position was confidential, both in the nature of its duties and in the words of the statute creating it (The Liquor Tax Law) which says: "such special agents shall be deemed the confidential agents of the state commissioner." There is much language in the opinion on confidential positions defining them with respect to the veteran acts, which, if taken generally and applied in such a way as to hold all positions so defined as confidential to be necessarily exempt from examination, would lead to the exempting of a great many places which are now, and for many years have been classified as competitive. The decision of the court was that the position was |