Chapter IV
CLASSIFICATION

I. BASES OF CLASSIFICATION

Classification is a term that is used to describe three different proce-
dures. In the first place, it may refer to the process of dividing the whole
administrative service into those offices and positions that are to be sub-
ject to the merit system as defined in a civil service law and those that
are not to be subject to it. In the second place, and somewhat more com-
monly, the term refers to the division of the civil service into the class
that is to be affected by competitive examination and that which is not
to be so affected. In the third place, classification refers to the listing of
the positions already decided upon as belonging to the competitive group,
along with their titles, characteristic duties, and salaries.

The distinction between the second and third of these usages and the
significance of the distinction is* well stated in Story v. Craig, a leading
New York case i 1

"The plaintiff, a taxpayer, complains that positions in the civil service
have been illegally filled, and that the incumbents, being there without
title, are paid without right. The judgment under review upholds the
complaint and adjudges the intrusion. Payment of salaries and certifica-
tion of pay rolls have accordingly been restrained as acts of threatened
waste.

"The charter of the city of New York (Laws 1901, c. 466, sec. 123)
empowers the municipal civil service commission, within the limit of ap-
propriations, to appoint a secretary, examiners, 'and such other subordi-
nates as may be necessary.' In 1904 the commission, acting under the
authority of that section, created a new position which was to be known
as assistant chief examiner. Under section 56 of the charter, the board of
aldermen, acting upon the recommendation of the board of estimate
and apportionment, approved the resolution of the commission, and
fixed the salary to be paid. In 1909, with like approval, the number of
the positions was increased. In 1913 there was established yet another
position known as first assistant chief examiner. Resolutions of the board
of aldermen upon proper recommendation prescribed in successive years

the rate of compensation, and appropriated, in successive years the neces-
sary moneys. No attack is made upon the regularity of the proceedings
in these preliminary stages. The existence of positions, with moneys ade-
quate for payment, is undisputed and indisputable.

"(i) With the field of controversy thus narrowed, we reach the ques-
tion to be determined. The rules of the municipal commission incor-
porate a schedule of title, offices, and positions arranged in grades and
classes. When the new positions were created, the schedule included in
its enumeration the positions of chief examiner and examiners. It did not
speak of assistant chief examiners or first assistant chief, for such places
did not then exist. The plaintiff insists that there could be no lawful
examination, and hence no lawful appointment, until by amendment
of the rules the titles of the new positions were included in the schedule.
The commission held promotion examinations as vacancies occurred.
It gave public notice of these examinations as prescribed by law and
usage. It gave opportunity for promotion to all the examiners then in
the service who desired to compete. No complaint is made that the tests
were unfair, or the candidates unjustly rated. Mr. Murray, one of the
defendants, an examiner since March, 1904, was promoted to be assistant
chief examiner in July, 1909, the examination giving him first place on
the eligible list, and he was again promoted, this time to be first assistant
chief, in July, 1913. Miss Upshaw, another defendant, who became ex-
aminer in 1902 was promoted to be assistant chief in April, 1913. During
all the years that followed until the plaintiff launched his challenge there
was no suggestion, either by public officer or taxpayer, of irregularity or
flaw. In the meanwhile the schedule had been amended (December 7,
1917) so as to incorporate in its enumeration the titles of the new posi-
tions. Then in September, 1918, there came the present action. Public
servants who were promoted after competitive examination, and who
have rendered years of service on the faith of such promotion, must be
ousted, it is said, because the commission which created their positions,
and examined and appointed them, failed before the examinations to
incorporate their titles in the columns of a schedule.

"We find nothing in rule or statute that constrains to such inequity.
People ex rel. Fowler v. Moskowitz, 220 N. Y. 669, 116 N. E. 1067, leaves
the question open. We held there that all examiners must be admitted
to examinations without discrimination when there was to be an ap-
pointment of a chief. We did not attempt to determine whether past
examinations had been so conducted as to affect the status or the tenure
of those who claimed to be assistant chiefs. The answer to that question
requires us to consider the function of classification in the administration
of the civil service. Classification in that service will be found to have

two meanings, one primary and the other secondary. The primary mean-
ing is that indicated in the Civil Service Law (Consol. Laws, c. 7), and
imports a division of offices and employments into those where competi-
tive examination is necessary or practicable, and those where it is not.
There shall be 'four classes, to be designated as the exempt class, the
competitive class, the noncompetitive class and, in cities, the labor class.'
Civil Service Law, sec. 12. The requirement that there shall be classifica-
tion in this sense is fundamental and substantial, since such division is
the basis for the administration of the system. People ex rel. Sims v.
Collier, 175 N. Y. 196, 200, 67 N. E. 309. The secondary meaning of classi-
fication is the mere arrangement or enumeration in a schedule of the
titles of positions whose quality, as competitive or the opposite, has al-
ready been determined. This requirement is a creature, not of the statute,
but of local rules, and is formal, and not substantial. No schedule so
minute or definite exists under the rules of the state civil service com-
mission. Rule 7, State Civil Service Rules. All that we find there is a
statement of general groups and subdivisions, coupled with a provision
that any position not designated shall be assigned to the group and sub-
division most appropriate to its functions. The preparation, under the
rules of this municipal commission, of a schedule more minute and defi-
nite, is a regulation of convenience.

"The plaintiff makes no complaint that there has been any failure on
the part of the commission to give to these positions a place in one of the
four statutory classes. The complaint, if made, would be untenable. The
positions have been put by the commission in the competitive class, and
so in practice they have been treated. They have been put there by the
general statement of the rules (declaratory, indeed, of provisions of the
statute, sections 14 and 16) that everything shall be in the competitive
class unless expressly included elsewhere. Classification has thus been ef-
fected in the only sense prescribed by statute. Classification has been
effected in the only sense essential to determine merit and fitness by com-
petitive examination. Classification has been effected in the only sense
that would be necessary if the positions were in the state service rather
than in the service of the city. The only question then is whether the
rules of the local commission have made a condition precedent of some-
thing which in its nature is a mere dictate of convenience or a mere re-
quirement of form.

"We think the imputation of such a purpose is forbidden by the rules
themselves. They provide, following the direction of the statute that the
classified service shall be arranged in four general classes, which shall be
known, respectively, as the exempt, the competitive, the noncompetitive,
and the labor class. Rule 4, subd. i. They then provide that 'the positions

in each of the aforesaid classes shall be those specifically designated, un-
der the head of each, in the appended classification; except that all posi-
tions, whether now existing or hereafter created, of whatever functions,
designations or compensation, the titles of which are not so designated,
shall be deemed to be in the competitive class.' Rule 4, subd, 2. The clos-
ing words are significant. A classification is appended, but any position
not mentioned in it is to be regarded as competitive. The implication is
inevitable that the list is understood to be neither exhaustive nor exclu-
sive. Omissions are expected. Their effect is weighed and determined.
Directions how to deal with them are given so that confusion may be
avoided if they shall afterwards develop. Enumeration in a schedule is
not a condition precedent, which, unfulfilled, will defeat the title to office
or position. It is a form to be recommended, a device to be preferred, in
furtherance of method and order, and simplicity and system.

"We find nothing in other rules that is sufficient to neutralize the
effect of a disclosure of purpose so direct and unequivocal. Rule 6, sub-
division 6, and rule 15, subdivision 4, do not mean that examinations
shall never be conducted at all unless the title of a position is designated
in the schedule. They mean that, when a title is designated, that shall be
the title under which the examination shall proceed, unless for special
reasons to be stated in the minutes. Whether candidates would be af-
fected even then by an omission from the minutes of which they had no
notice we need not now consider. The suggestive thing for us is that the
title, even when designated, may sometimes be abandoned, and that no-
where is designation indicated to be an indispensable condition.

"(2) Enumeration in the schedule, therefore, is rather a counsel than
a command. The rules, taken as a whole, point unerringly to that con-
clusion. Doubt, however, if it might otherwise exist, is dispelled by a
practical construction that is continuous and uniform. Grimmer v. Tene-
ment House Dept., 205 N. Y. 549, 550, 98 N. E. 332; Wintersteen v. City
of New York, 220 N. Y. 57, 115 N. E. 17; City of New York v. N. Y.
City Ry. Co,, 193 N. Y. 543, 86 N. E. 565. The commission presumably
knew its own rules, and understood them. Yet succesive boards, year
after year, examined and promoted applicants, and certified pay rolls,
without suggestion or suspicion that omission from the schedule had
nullified their action. That would be significant though the positions
now in controversy were the only ones affected. The significance is
heightened when we learn that there are many others. The record states
without contradiction that a host of officers and employees in all or
nearly all the departments of the city government have been appointed
and promoted to positions not enumerated in schedules. We do not
readily overturn the settled practice of the years.

"In reaching this conclusion, we are not forgetful of the public inter-
ests. They weigh heavily at all times in the solution of these problems.
Public policy does, indeed, demand that there shall be compliance with
whatever is of substance in statute and rule for the formation of the civil
service. We shall not willingly ignore anything of such an order, any-
thing that makes for efficiency or fairness. On the other hand, public
policy forbids that members of the civil service, complying in good faith
with the tests of competitive examination, shall hold their places by a
tenure made unattractive and precarious by technicality and formalism."

Positions and offices may be classified and/or persons holding them
may be classified; it is of some legal significance whether the one or both
are involved, as appeared in the discussion of covering in at the inception
of the merit system.

Ordinarily classification in the more fundamental and broader sense,
as discussed in the opinion just quoted, is statutory, and the legislature
may use its own discretion as to the bases upon which it is to be predi-
cated, subject only to those constitutional provisions which relate to the
structure of government and the offices or positions therein and to the
constitutional mandates for filling them. This is true in the national as
well as in the state governments.: Classification in the narrower sense
may be by statute, and sometimes is, but more commonly it is left to
administrative officers, usually those of a personnel agency, such as a
civil service commission. 8

Where the state constitution includes express provisions on civil serv-
ice, the discretion of the legislature to classify positions may be somewhat
restricted. Thus, under a provision such as that in New York, that "ap-
pointments and promotions in the civil service of the state . . . shall be
made according to merit and fitness, to be ascertained, so far as is prac-
ticable by examination, which so far as practicable, shall be competi-
tive . . ." what at first glance may seem a legislative discretion to place
a position in the competitive class may turn out instead to be a duty to
place it there. This, of course, does not mean that no discretion exists as
to whether a position should be placed inside or outside the competitive
class, but it is clear that the judicial bases for interference are much
greater under a provision of this type than under a constitution not con-
taining such a statement. 4

The question whether a statute does classify any given group of offi-
cers or employees is one of construction and depends upon many factors.

Even deputies may be placed in the classified service by statute, 6 although,
of course, they are often not included. There is some tendency to rule that
persons or positions come within the classified service unless the statute
or rule clearly excludes them. 7

As has been pointed out elsewhere, most of the classification in the
national system is by presidential order. As used in this connection, the
term requires explanation. 8 It is common, in the national government,
to speak of the classified service, but in many respects the phrase is only
synonymous with the phrase civil service. With some exceptions, to be
in the classified service is to be in the civil service, in the sense that those
outside of the classified service are usually not in the civil service. The
president is authorized to "classify" employees, that is, to bring them
within the classified service. This usually means that he brings them into
what is thought of as the merit system. The president ordinarily does not
perform the task of classifying those within the classified service in the
sense of listing them. The act of classification performed by the president
is determining whether a group should be placed within that portion
of the service which is subject to administrative classification. This the
president does by virtue of authority of statute. In addition, he may,
under his constitutional powers to appoint and to see that the laws are
faithfully executed, impose the procedures of merit selection upon groups
outside the competitive service; but he cannot give them that status or
protection which congressional statute alone can give.

As suggested earlier, the arrangement within the classified service
may be by positions rather than by persons. 9 Considerable significance
may attach to the fact that it is the position rather than the person that
is classified. This is illustrated by the question whether temporary em-
ployees for certain classified positions in the national Department of
Agriculture must be selected in accordance with certain classification
acts; it was held that since the positions were classified, all those who
were to hold them must follow the rules applicable thereto. Classification
of positions at times involves certain complications in the adjustment of
salaries that apply to the positions and to part-time help. 10 It is important
that statutes or rules on classification be drafted with care in order to
accomplish no more than is really intended. It should be borne in mind
that when the position is classified, no particular protection attaches to
the person holding the position unless the statute expressly affords that
protection to the holder of the position. In the section dealing with re-

moval it will become clear that "persons in the classified service" and
"persons holding classified positions" are not identical phrases so far as
legal consequences are concerned. 11

In the next few pages some of the problems involved in administrative
classification, or listing of positions, will be discussed. The two most
common bases of classification are the duties of the position and the
compensation attaching to it. Sometimes, as in the national government,
classification is primarily related to salary standardization. 12 The com-
pensation that is attached to a position presumably has some relation to
its duties, but it may not. A position that pays five thousand dollars may
fall in a different class from a position that pays thirty-three hundred
dollars, even though the duties are identical.

The duties and responsibilities of the positions may be, and commonly
are, made the bases of classification. The usual inclination to classify po-
sitions with respect to duties receives a good deal of support from the
common requirement that examinations be practical in nature. 13 The
differences in the responsibilities of two positions may be used as the
basis for a distinction in class that may reflect a difference in compensa-
tion. 14

It has been held that a specific command that classification into grades
shall be based on compensation does not override a general statement
that classes are to be based on the nature of the duties. 15

A classification act may specify that the "existing compensation" be
used as a basis for computing the initial salary under the act; this means
the compensation of the position actually held by the employee on the
date fixed in the law, whether held temporarily or permanently. 16 There
is a tendency to interpret a salary statute so as not to raise the salary of a
person to a higher classification if the salary to which he is to be advanced
is that for which a promotional examination would otherwise be neces-
sary. 17

Salaries that have been fixed by classification cannot be increased in
effect by the addition of allowances for travel when by law no allowance
is provided for. 18 Nor can the restrictions of compensation be evaded by
giving a higher rate of pay on the per diem basis. 19 Employment by the

day is not permissible when the statute fixes compensation only by the
hour or by the year. Another check on evasions of the compensation
classification acts is provided by the office that approves payrolls, it being
within the function of that office to ask for the necessary data on new
positions or expansions of staff. 20 The comptroller general has ruled that
the certificate of service of a person working by the hour should show
the number of days on which service was actually rendered on the hourly
basis, as well as the total number of hours, exclusive of the number of
days taken for annual leave or sick leave. 21

When it is necessary to detail someone to perform the duties of a posi-
tion before it is classified, that person is entitled to the compensation of
the position from which he is detailed rather than of the position to
which he goes. 22 The fixing of salary does not operate retrospectively in
such a case. When a dispute over the proper allocation of the position
which is to be reclassified is in progress, the incumbent receives the com-
pensation formerly attached to the position. 23 If a position is classified
properly, the person who performs the duties attached to the position is
entitled to the compensation as of the proper class, despite an adminis-
trative error in giving the position a lower status. 24

While the work of classifying positions is proceeding and examina-
tions are being prepared, the old appointing rules may be applied. 25 The
date at which a classification becomes effective is governed by statute if
any provision is to be found in the law; if not provided for expressly, it
is effective when promulgated. Once the date is announced, the admin-
istrative officers must adhere to it. 26 Under statutes which require the
approval of an administrative officer before the allocation of any position
becomes effective, his consent may be express or tacit. 27 It has been held
that even though the initiative was taken by the wrong party, the allo-
cation becomes effective and valid if he who should have taken the ini-
tiative accepts the allocation and acts in reliance on it.

II. POWER TO CLASSIFY

The power to classify positions in the service does not carry with it
the power to abolish positions, nor does it imply the power to remove in-

dividuals from their places in the service; 28 the power is only to arrange,
with respect to fixed bases, the positions that have been created by the
proper laws and authorities in the government. The power to classify
or reclassify must be exercised in the manner set forth in the statute, and
though the discretion granted may be broad, it must rest upon some
substantial basis. 29

[The power to classify in the administrative sense can be exercised only
by the officer or body to whom the power has been given. Customarily
this agency is the civil service commission or commissioners. If by law
the power to classify has been given to a municipal civil service com-
mission, the municipal council cannot exercise it, and an attempt by the
council to declare a position in the classified service would be ineffec-

recent case illustrating the principle that the power to classify must
be exercised by those to whom it is given is Birdsall v. Sanders, 31 a Colo-
rado case. The city charter provided that the civil service commission
"shall provide for the classification of employments in the department
of public safety" (the department that was affected), in addition to pro-
viding for examinations, eligible lists, etc. The city manager might re-
move employees, "but all appointments and removals to be subject to the
civil service provisions of the charter." The municipal council then en-
acted an ordinance directing the city manager to classify employees
on the basis of efficiency ratings. One of the employees who had been
given a low standing because of his efficiency ratings was dismissed and
brought a petition for mandamus to obtain his reinstatement. The court
decided in his favor. The civil service commission, according to the court,
had authority to fix the bases for classification, and it was not for the
council to specify them. The fact that no rules on this subject had been
adopted by the commission did not justify the council and manager in
proceeding in the absence of such rules.

Classification may be carried on by an administrative officer within
the regular administration rather than by a civil service agency; at times
this has been the arrangement in the national administration. A separate
classification board may be established to which questions involving
the classification of certain positions may be referred; such a body was
established in the national government under the title of the Personnel
Classification Board. But the board's powers could be brought into play

only upon the action of an administrative officer having the power to
allocate positions or upon the request of the affected employee, the board
having no power to act on its own initiative. 82 A distinction has been
drawn between a request by the administrative officer that the board take
action and a notice by the officer of action that he has taken in allocating
the office or employment. 33 Once the board is asked to enter into the
question, it may use its discretion in either raising or lowering the allo-
cation of the position. 84

A statute which requires that newly created positions be submitted to
the classification office for allocation does not mean that additional per-
sons employed in one of the established types of positions already classi-
fied need to be referred to the classification office. Such a statute does not
apply to the expansion of an established force. 35 A distinction is also
made between allocating new positions and reallocating old ones. 36

A personnel classification board of the type that was used in the na-
tional government is of limited power, and while administrators may as
a matter of courtesy notify it of vacancies, appointments to fill vacancies,
or promotions, it has been held by the comptroller general that they are
not required by law to do these things. 87

The power to fix salaries is not the equivalent of the power to classify
in and of itself; a board of education can have the power to fix salaries
and the civil service commission the power to classify, so that in order to
obtain the higher salary attached to a position in a higher class an em-
ployee must take a promotional examination. 88 On the same general
theory, it has been decided in the national government that when the
president has placed a group of employments under the classified service,
it is for the civil service commission rather than for the treasury to de-
termine whether a specific position comes within the terms of the classi-
fication. 89

When the approval of a civil service commission is required before a
classification or allocation of positions by an administrative officer be-
comes effective, and an allocation is made without such approval, the
courts deal with the position so as to take it out of the competitive service
and put it into the noncompetitive service; the incumbent is removed as

a result of the new allocation as though he had been removed legally
from his position in the competitive service. 40

Qjicident to the power to classify, a civil service commission possesses
the power to make such surveys of the work of the administration to be
classified as are necessary to the execution of the classifying power . 4 \

III. DUTY TO CLASSIFY

The duty to classify must be distinguished from questioning a classi-
fication once it has been made. For one reason or another, the classifying
body may fail to classify positions or persons, although it is under a legal
duty to do so. What can be done to obtain the classification contemplated
by the statute?

If the duty to classify is clearly stated in the law, and if the officers who
are empowered to make the classification fail to do so, mandamus will
issue to compel them to proceed to make a classification. 42 They may be
compelled to classify certain specified positions. 43 But, of course, this
cannot be done if the duty is discretionary, because mandamus will not
lie to control discretion. 44

Nor will mandamus lie to compel a city council to appropriate money
to defray the expenses of classification. 45 The civil service commission
cannot be compelled to classify if its present staff is not adequate to the
task and no money has been made available for its use in carrying on the
work of classification. 46

Mandamus is the proper remedy for obtaining a reclassification as
well as an original classification. 47 But, of course, in both an original
classification and a reclassification it is necessary to join all the officers
or agencies that participate in the process because mandamus would be
ineffective to obtain complete relief if issued to only one of two parties in
such a case. 48

IV. JUDICIAL REVIEW OF CLASSIFICATION

Whether a certain position comes within one or another schedule in
the classification is a question of law and will be determined by the

courts. 49 However, the courts are loath to interfere with an allocation
that has been made by the classifying officer and will do so only if they
think that the action was arbitrary or clearly illegal. 50

The work of classification is administrative work and involves a large
amount of discretion. The fact that it involves discretion, or what is
sometimes called "judgment," does not give to the allocations the char-
acter of a judgment in the judicial sense; nor is the work legislative in
nature. It is administrative, though involving some of the characteris-
tics that otherwise are associated with executive, legislative, and judicial
work. Because it is not judicial the courts will not review it by the writ
of certiorari. 51 Taxpayers' actions may be authorized to test evasions of a
civil service law; and when they lie, they, and not certiorari, are proper
for raising questions of classification. 52

Mandamus to reclassify the positions will lie if it is clear that the posi-
tions are to be classified and have not been classified, as was pointed out
above, or if they are to fall in one class and have been placed in another. 58
If, for example, a question of classification is involved in a removal case,
the writ must be against the classifying officer. It will be of no avail to
proceed against the administrative officer unless he has the authority to
correct the error in classification.

Sometimes the writ of mandamus is used to compel the commission
to rescind its action in giving a certain status to a person or a certain al-
location to a position. When this is done, care must be taken that all
those officers who are to share in the making or approving of the classi-
fication have acted. 54 Otherwise the issuance of the writ will be only par-
tially effective. The order may be to strike a position from a certain grade
or list. But in any event, whatever the form of the order, the writ of
mandamus will not issue if a discretion has been lodged in the officer
whose action is questioned, and that discretion has not been abused so
clearly that the usual rule in mandamus concerning discretion is waived. 55
The same rules that generally govern the joining of parties in mandamus
apply to its use here. 56

A taxpayer may not ordinarily assail a classification, because it in-
volves no expenditure of money. It is conceivable that he might prevent
a classification from being made if the law did not authorize it, but clear
authorization is usually present in civil service law. The question whether
a classification has been made correctly is not a question that involves
the expenditure of tax money. 57 This fact, of course, would not prevent
a taxpayer from bringing suit to test the classification if the statute au-
thorized him to do so irrespective of monetary interest. The usual tax-
payer's action is not of this type, however.

Claim for salary due an employee because he has been paid at a rate
proper for a lower classification but lower than the rate attaching to the
schedule in which his position lies is governed by the usual rules govern-
ing judicial review of classification. If the employee can show that he
was entitled to the higher rate, he is entitled to it. But he must assert his
claim within a reasonable period, and the doctrine of laches rather than
that of the statute of limitations governs the appropriateness of any par-
ticular delay that is involved. 58

V. CLASSES

In this section the problems to be dealt with concern the scope of the
civil service and legislative classification in the more fundamental sense.

A. THE EXEMPT CLASS

An allegation that a person took and passed a competitive examination
does not show that his position is in the competitive class, nor does the
lack of examination place him in the exempt class. Normally, examina-
tion is not the basis of classification, nor is it proof of it. 59

A good deal of confusion is to be found in both statutes and descrip-
tive writing as to use of the phrase "the exempt class." Sometimes this
phrase refers to a group of persons or positions not included in the civil
service at all. In other instances, the phrase refers to a group within the
civil service but not subject to examination; because its members are not
subject to the requirements of the civil service law with respect to selec-
tion, promotion, transfer, and other aspects of personnel management,
they are not accorded the protections against removal accorded those
who do come under these personnel provisions. According to this latter
use of the phrase, the exempt class is within the civil service but outside
that class within the service affected by most of those principles that go
to make up the merit system. The payroll certification provisions of the
statute and the veterans' preference provisions may apply to both, but


the removal and the selective provisions may not apply to them alike.
The use that is made of the phrase can be determined only by a study
of the statute and the context of civil service regulations and judicial de-
cisions. 60

An interesting case that really deals with the scope of the civil service
rather than with its classes is Ottinger v. Civil Service Commission. 61
The question was raised as to the power of the legislature to authorize
the attorney general of the state to appoint deputies, officers, and other
persons whom he deemed necessary to the execution of certain statutory
duties imposed upon him by law. The court held that under the New
York constitutional provision requiring appointments in the state service
to be made in accordance with merit and fitness, so far as practicable to
be ascertained by examination, this authorization to the attorney general
was too sweeping. The law might provide for a system different from
civil service for determining merit and fitness, but some satisfactory
system would have to be used. This case does not mean that any state
which has a constitutional provision relating to the civil service is pro-
hibited from having an exempt class, in the sense of having a class not
subject to formal examination on a competitive basis. The Ohio court
has quite properly decided that the provision in the constitution of that
state on the merit system does not prevent the creation of an exempt
class.