ute as well as a different provision of the Constitution, seems to be in all respects conclusive upon this question, even if this court were disposed to take a different view than that which it has already expressed. (The People ex rel. Killeen v. Angle, 109 N. Y., 564.)

It is further contended by the counsel for the relator that section 6 of article 5 of the Constitution gives support to the legislation under consideration. This contention is effectually disposed of in the case last cited, and the reasons which are given for the conclusion reached by the court, in respect to that question, furnish a satisfactory answer to any contention which might be made that the language of section 4, which provides that the superintendent shall have the "management and control of the State prisons, subject to such laws as now exist or may hereafter be enacted," is applicable to the matter of appointments of individuals to subordinate positions. But even were the court in error in its interpretation of that provision of the Constitution which is applicable to this case, there would seem to be another objection to the granting of the relief sought, which must necessarily dispose of the case so far as the rights of the relator are concerned. The appointment of an honorably discharged Union soldier or sailor to official position, within the contemplation of the act of 1887, is made conditional upon his possessing the business capacity necessary to discharge the duties of the position involved. In the opposing affidavit of the respondent it is alleged that the relator did not possess the requisite qualifications to entitle him to an appointment to the position which he held; or in other words, that one of the reasons which controlled the respondent in his selection of the relator for removal was, that he was less competent to discharge the duties of keeper than others retained by him; that in his opinion he did not possess the business capacity to discharge the duties involved in the position of keeper; that his presence would be demoralizing to the discipline and good government of the prison and would seriously embarrass the respondent in the proper discharge of the duties of his office. This allegation on the part of the respondent is not denied by the relator. On the contrary, he proceeded to argument and asked for a peremptory writ, which is equivalent to a demurrer, and is an admission of the truth of those allegations as statements of facts. And that being the case, the respondent was certainly acting within the spirit, if not the precise letter, of the statute in question. (The People ex rel. Tenth National Bank v. The Board of Appraisement of the city and county of New York, 64 N. Y., 627.)

For these reasons the application for a writ of mandamus must be denied with costs.

SUPREME COURT.

THE PEOPLE ex rel. DUBOIS v. W. HANSOM MELLOR AND OTHERS. BARNARD, J.-The relator was appointed assistant engineer at the Poughkeepsie water-works by the defendant's board in March, 1887, at a salary of seventy dollars a month. The appointment was made under the laws regulating appointments in the Civil Service of the State. The relator was a soldier in the Union army during the rebellion, and under chapter 119, Laws of 1888, could not be removed from his position unless he was appointed for a definite term. The defendant's board has power under the charter to employ "an engineer and an assistant at the pumping works" under such salary as the board should fix. (Title 13, section 214, subdivision 3, city charter; chapter 523, Laws of 1883.)

The charter also provides that "the term of office of each officer appointed by the mayor shall expire with the term of the mayor appointing him and that the term of office of all other officers appointed under this act shall expire at the thirty-first day of December after the appointment." (Title 2, section 34, city charter.)

The relator is not strictly an officer of the city. His position is not classed among the officers of the city, under title 2, section 3 of the charter, unless included in the description, "such other officers as authorized by this act." The relator is not included in this class. All officers of the city must be residents and electors therein. A removal from the city vacates an office. (Title 2, section 21.) The waterworks are outside of the city, and the engineer or the assistant were not intended to be necessarily residents of the city, as their effectiveness may require a residence at the works. The authority given the defendant's board favors this view. The power to employ "an engineer and an assistant engineer at the pumping works." The same

words are used in respect to other labor "to hire and employ the requisite laborers."

The relator therefore does not come within the description of officers whose terms expire with the year of his appointment. The employment will continue until revoked. The defendants had therefore no power to remove him or to subject him to a new Civil Service examination.

The mandamus should therefore be granted without costs, as the question is new.

SUPREME COURT.

THE PEOPLE ex rel. HITCHCOCK V. THE BOARD OF ALMS-HOUSE COMMISSIONERS.

BARNARD, P. J.-There is but a single question presented by the moving papers. The relator was, according to the laws applicable to Civil Service appointments, examined and was included in the eligible list as one of three persons certified to the defendant for the appointment as superintendent of the city alms-house. The relator was the only one of the three so certified who was an honorably discharged soldier in the Union army during the rebellion. The question is, whether the appointing board can pass by the veteran and appoint one of the others who had never been a soldier. The power of cities to provide rules for the greater efficiency of their Civil Service was given by chapter 410, Laws of 1884, section 8. This act was amended in 1884, and a preference given for an appointment to office under the act to those who had served in the army or navy of the United States in the late war and been honorably discharged. (Chapter 410, Laws of 1884, section 8, subdivision 4.)

By chapter 29, Laws of 1886, the Legislature again amended this act and more fully exposed the discharged soldiers' preference to an appointment by the following section:

§ 4. "In grateful recognition of the services, sacrifices and sufferings of persons who served in the army or navy of the United States in the late war and have been honorably discharged therefrom, they shall be certified as such by the commissioners, board or officers authorized to report names for appointment, to the appointing officers or other appointing power, and shall be preferred for appointment to positions in the Civil Service of the State, and of the cities affected by this act and the several acts hereby amended, over all other persons, though graded lower than others so examined and reported, provided their qualifications and fitness shall have been ascertained as provided under this act and the several acts hereby amended, and the person thus preferred shall not be disqualified from holding any position in said Civil Service on account of his age nor by reason of any physical disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for."

By chapter 464 of the Laws of 1887 the Legislature goes still further in respect to the appointment of Union soldiers to office. In every public department in the State and of the cities, towns and villages, and in such competitive examinations under the Civil Service laws, rules and regulations, honorably discharged Union soldiers are

directed to be preferred for appointment, and a faithful compliance with this act "in letter and spirit was imposed upon all appointing boards and persons, and a failure so to do was made a misdemeanor." Under these laws the relator. was entitled to the appointment in question unless the respondents gave a reason which permits him to be passed over. The return states that the relator has not the necessary business capacity to perform the duties of the office, and also that he is physically incapacitated to perform those duties. The appointing board is charged with no duty in those respects. The very object of the Civil Service laws was to remove the question from the appointing board. The law gives the mayor power to make rules to secure the best officers, and these rules provide for a medical examination of the applicant, that "he is free from any physical defect or disease that would be likely to interfere with the proper discharge of his duties in the position in the Civil Service sought by the applicant." (Civil Service rules prescribed by Mayor White; regulation 6, subdivision 10.) By the same regulation not less than three nor more than five reputable citizens of the city must certify that they have been personally acquainted with the applicant at least one year, and believe him to be of good moral character, of temperate and industrious habits and in all respects fit for the service which he wishes to enter. The mayor has the power to strike off the name of any person from the eligible list upon satisfactory evidence that he is unfit for appointment by reason of character, habits or past reputation. The appointment is probationary for two months. (Regulation 20, Civil Service rules, Mayor White.) Under those rules the applicant's physical condition was certified to by Dr. R. K. Tuthill, and his business qualifications were certified to by Charles P. Luckey, Edward Van Kleeck, E. D. Gildersleeve, B. H. Trowbridge and Henry Tittamer. The certificates were given under an expressed willingness that the same may be published. No complaint was made to the mayor, who had the certificates delivered to him and no one was stricken from the eligible list. By the general law and by regulation 13, subdivision 2, of the mayor, one of those persons so certified must be appointed, and by the law and by regulation 26, of the mayor, the honorably discharged soldier "shall be preferred." It was made the duty of the board of examiners "to ascertain the fitness of candidates for the service of the city." If the Civil Service laws are to be of real value, the appointing board must appoint from the list and not have all these proceedings addressed to obtain a good officer go for nothing. Such would be the result if the appointing board could go outside of the list upon the ground that the law was insufficient to reach a good

If it

The

result. The design of the law was to get a better Civil Service. is faithfully executed a good result is reasonably certain. appointing board or officer must be strictly held to the provisions of the law because it is the law in any event. The respondents were bound to make the probationary appointment from the three names presented, and to give the soldier the preference, provided that "his qualifications and fitness shall have been ascertained, as provided under this act and the several acts hereby amended." (Chapter 29, Laws of 1886, section 4.)

The motion for a mandamus should, therefore, be granted without costs.

CIRCUIT COURT OF THE UNITED STATES-SOUTHERN DISTRICT OF NEW YORK.

1. Civil Service

July 20, 1882.

UNITED STATES v. CURTIS.

Political

Assessments Prohibitory Act Construed. 2. Same Government Officials-Power of Congress. 3. Same-Legislative Powers.

Under the act of Congress which prohibits "all executive officers or employés of the United States not appointed by the President, by and with the advice and consent of the Senate," from " requesting, giving to, or receiving from any other officer or employé of the government any money or property or other thing of value for political purposes," the person indicted can only be tried for doing the thing which the statute prohibits; and unless this of itself, isolated from all its concomitants, can be competently made a crime by Congress, the statute is nugatory.

Congress may lawfully prescribe all needful regulations for the discipline of government officials, and may declare what infractions of discipline shall be treated as criminal offenses, and it may prohibit cooperation between officials in the raising of funds for political purposes.

In executing its power to prohibit acts of officers or employés which are incompatible with the proper discharge of their duties, or which impair the efficacy or tend to demoralize the public service, Congress must exercise its judgment and discretion in determining what acts are or are not of such a pernicious character and tendency, and it is only when Congress has palpably transgressed the limits of its discretion that the judicial department will intervene. It is sufficient to justify the exercise of legislative discretion if the prohibited acts tend to introduce interests which disturb the just equipoise of official relations.