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Charter, section 125. The Commission has held two such investigations; one covering one day and the other three days and has ordered a third investigation to be held.

For your further information we herewith append statistical tables showing in detail the transactions of the Commission during the past year, as shown by the index preceding the report.

Respectfully submitted,

WILLIS L. OGDEN, President.

WILLIAM N. DYKMAN,

ALEXANDER T. MASON,

THEODORE M. BANTA,

WILLIAM A. PERRINE,

NELSON S. SPENCER,

CORNELIUS VANDERBILT,

Commissioners.

January 15, 1903.

S. WILLIAM BRISCOE, Secretary.

LAW DEPARTMENT,

OFFICE OF THE CORPORATION COUNSEL,
NEW YORK, December 18, 1902.

Municipal Civil Service Commission:

SIRS-I am in due receipt of a communication bearing date 24 November, sent through your Secretary, Mr. S. William Briscoe, which is in part as follows:

"In August last, the Municipal Civil Service Commission received a communication from the Board of Rapid Transit Commissioners giving notice of the action of the Board in increasing the salaries of a number of Assistant Engineers in its employ. In view of the fact that the persons so increased were carried beyond the limits of their respective grades, as fixed by Civil Service Rule 37, established May 10, 1902, the Board was notified that the increases could not be recognized unless the Engineers passed an examination for promotion, in which examination all other Assistants who had

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served in lower grades for the required length of time would be eligible to compete.

"A number of committees representing the persons whose increases were not recognized subsequently called at this office and stated that in their opinion it was unnecessary for them to take any further examination for the reason that the examination which they originally passed, as a result of which they were appointed, was for what was known as the fifth grade in the rules in force at that time and prior to May 10, 1902, as follows:

"Assistant Engineer. Annual compensation of more than $1,800, but not more than $3,000.'"

A number of papers accompanied this communication, which have all been carefully perused, and it is only necessary to refer to them generally at this time.

The situation disclosed by these papers is as follows:

Various persons, whose names appear in the papers mentioned, passed the examination for Assistant Engineer at times not specified in the papers in question, but before May 10, 1902, when the amendment of the rules went into effect.

Before the amendment of the rules mentioned, Rule 37 provided for a grading according to the fixed limit of compensation as follows, among other things:

"Group 3-For all architectural, civil or mechanical engineering positions, as follows:

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"Fifth Grade-Chief Draughtsman. Annual compensation of more than $1,800, but not more than $2,000. Assistant Engineer. Annual compensation of more than $1,800, but not more than $3,000.

"Sixth Grade-Principal Assistant Engineer. Annual compensation of more than $3,000."

The persons in question passed the examination under this rule and classification, and therefore each became entitled to fill a position of Assistant Engineer at a compensation of "more than $1,800, but not more than $3,000."

By the amendment of the rules, May 10, 1902, the grading was entirely changed by the classification thereunder established, and a person having a position for which the annual compensation was $1,800, would have to pass through eight other grades before he reached Grade 16, the highest grade, having a compensation of $3,000, or over.

Promotions that were sought to be made by the Board of Rapid Transit Commissoners were of certain Senior Assistant Engineers, from $2,220 to $2,700 per annum; of Assistant Engineers, Department of Designs, from $2,200 to $2,700 per annum, and Assistant Engineers, Grade C, from $1,800 to $2,100 per annum.

If the present rules and classification control these promotions they are, of course, clearly irregular.

The question therefore to be considered is whether or not the Municipal Civil Service Commission has power by a change of rules or classification to take from a candidate who has successfully passed an examination for a specified position at a salary fixed at the time of such examination, his right to appointment to that position and at that salary.

In my opinion, the Commission has not such right.

I do not think it can take from the various candidates who have passed the examination for Assistant Engineer at a salary of from $1,800 to $3,000 per annum, the right of appointment to a position as Assistant Engineer within these limits of salary.

If by a change of rules these candidates could be required to be reexamined for a much lower position than the grade which carries a salary of $3,000, it is very apparent that they would, through no fault of their own, lose very valuable rights.

Not only would they have to be examined for a lower grade than that to which they had become entitled, but they would be placed in competition with persons who had never been examined for a $3,000 grade and whose rights were in every respect junior.

Under the general scheme of the Civil Service Law it was the intention of the Legislature that when a candidate had successfully passed an examination and been placed upon an eligible list, his rights could not be affected by a change of rules and classification. If the law were otherwise, the Board,

without any fault of his, might relegate him to a much lower position and deprive him of valuable rights of appointment or promotion.

I think also that it cannot be the intention of the Civil Service Law that a candidate should be compelled to pass two examinations for the same position, when the first examination was perfectly valid at the time it was taken and carried with it a right to appointment or promotion.

I note the suggestion in one of the papers accompanying your communication that such a ruling as this would throw the entire Civil Service into confusion, because as the different candidates had passed their examinations at different times, under different rules, it would be impossible to administer the system with any uniformity.

I do not think that this result would necessarily follow. The only question which need be considered by your Board is whether or not a candidate did pass a legal and valid examination and was thereby placed upon an eligible list for a certain position, either by appointment or promotion. If he did so pass an examination, he has acquired a right to appointment or promotion as the case may be, and that is all that need concern your Board.

What were the other provisions of the then existing rules need not, I think, enter into the determination of the question suggested.

I believe the foregoing answers the question discussed in your letter.
Respectfully yours,

(Signed) G. L. RIVES, Corporation Counsel.

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2-Chronological order of examinations held.

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4-Comparison of candidates examined from 1898 to 1902.

5-Examinations for original appointment for positions in the

Competitive Class held and rated during 1902, and appointments made as the result of such examinations.

Number of persons notified, 14,268; absent, 4,478; examined,

9,423; failed, 6,620; passed, 2,803; withdrew, 367; ap

pointed, 906.

Table No. 6-Competitive examinations held for original appointment during 1902, now in process of being rated. Number

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of candidates examined, 1,453.

Competitive examinations held for promotion during 1902,

now in process of being rated. Number of candidates
examined, 19.

Physical examinations held in 1902 for Fireman, not yet rated
Number of candidates examined, 87.

7-Examinations held for original appointment in 1901 and
rated during 1902, and appointments made as the result
of such examinations.

Number of persons notified, 4,083; absent, 1,951; examined, 1,918; failed, 1,192; passed, 726; withdrew, 114; ap pointed, 105.

8-Appointments made during 1902 from competitive eligible lists prepared prior to January 1, 1902. Total number of appointments made, 890.

9-Promotion examinations held and rated during 1902, and

appointments made from eligible lists formed as the result of such examinations.

Number of persons notified, 2,703; absent, 34; examined, 2,615; failed, 2,031; passed, 584; withdrew, 54; appointed, 279.

10-Promotion examinations held in 1901 and rated during 1902,

and appointments made from the eligible lists formed

as the result of such examinations.

Notified, 260; absent, o; examined, 258; failed, 122; passed, 136; withdrew, 2; appointed, 28.

II-Promotions made during 1902 from lists formed prior to 1902. Total number of promotions, 71.

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