Chapter V
EXAMINATION, ELIGIBLE LISTS, AND CERTIFICATION

I. EXAMINATION
A. PRELIMINARIES TO EXAMINATION

When the service has been classified and the agencies for administra-
tion of the civil service law have been organized, examinations can be
given for positions that fall vacant or that have been newly created. But
before an examination can be given, several preliminary steps must be
taken and a number of questions settled: the examination must be pre-
pared; the qualifications to be imposed upon those seeking to take the
examinations must be fixed; the notices of examination must be given.
Upon such preliminary matters a number of disputes have arisen; some
of them have come to the courts for decision, though of course the greater
number of rulings on details such as these are made by the law officers
and by the personnel agencies themselves.

1. Notice of Examination. The civil service laws usually require
that public notice be given of examinations for positions that are to be
filled on the basis of merit and fitness, as ascertained by examination. Ap-
parently, the important things about notices of examination are that
they be given in the proper form, at the proper times and places, and
that they contain an accurate description of the duties attached to the
position and the qualifications required of the candidates for it. It is
customary to state the salary ranges for the position, but it seems that
unless the statement of salary in the notice is such that it might affect
the type and quality of persons taking the examination, the particular
figures set forth in the notice have no legal significance. The statement
of the figures presumably establishes no contractual relation that binds
the government, nor does it create any obligation upon the applicant
to accept the position even if his name is placed upon the eligible list. It
has been held that a notice reciting a salary of twenty-five hundred dol-
lars for a position was not invalid merely because the body having au-
thority to fix the salary for the position had fixed it at five thousand
dollars. The court thought that there was no evidence that the recitation
had affected the type of applicant taking the examination.

they contain concerning applications, but in general the tendency is to
leave the details of application to the personnel agency. This body usually
works out a form blank containing certain conventional questions to be
answered by the applicant. The civil service commission is usually per-
mitted a fairly broad discretion as to the contents and form of the ap-
plication blank. Occasionally the power of the commission to require
certain types of information from the applicant has been challenged, and
the procedures whereby such information is to be given have been ques-
tioned.

In Johnson v. United States, 2 a person was convicted of perjury under
federal law because he had answered under oath that he had never been
discharged from the civil service of the United States when it seemed
that he had been so discharged. The Civil Service Act of 1883, providing
for the United States Civil Service Commission, says that "every appli-
cation for an examination shall contain, among other things, a statement
under oath setting forth his or her actual bona fide residence at the time
of making the application." The civil service rules, promulgated by the
president, had required that an oath be sworn covering the answers to all
questions in the application, not only to the question of residence. Did
the president have power to require that the answers to all questions be
covered by oath ? The court decided that the rule was valid, and being
authorized by statute, was a law of the United States. Therefore, swear-
ing falsely to that which was required of the applicant by a law of the
United States conformed to the statutory definition of perjury. The court
did not settle the question of whether the rule that required information
upon the subject of discharge was valid.

In 1912 a statute was enacted by Congress providing that the members
of the United States Civil Service Commission could "administer oaths
to witnesses in any matter depending before the Civil Service Commis-
sion" and also empowered its representatives to do the same. Did this
statute cover a case in which a person falsely answered a question in an
application blank ? The court held that it did, and that the word "wit-
ness" did not confine the statute to formal hearings, but that it included
as well declarations made under oath for some legal purpose. 3

Criminal prosecution is not the only type of disciplinary action avail-
able in cases of false answers in applications. Sometimes the applicant
is already holding a position in the government; if so, there are various
penalties that may be attached to different kinds of misconduct. If the
applicant is removed from his position as the result of his act, one of these
penalties may be a forfeiture of any salary that is due him at the time

of his discharge. Whether this or any other penalty will apply depends
upon whether the offense is of such a nature that it falls within the rule
of law prescribing the forfeiture. 4

It is no fraud for an applicant to fail to furnish information not re-
quested in the questions put to him. 5 Apparently it is within the power
of the personnel agency to obtain information, but not the duty of the
applicant to go out of his way to give information not required of him.

When a civil service commission has power to investigate the "en-
forcement of this article and of the rules and the action of the examiners
herein provided for and when the statute provides that false answers
to questions constitute good grounds for barring the applicant from ex-
amination, for excluding him from the eligibility list if he passed, or for
discharging him from his position if he had been appointed, the commis-
sion has power to conduct an investigation into alleged fraudulent state-
ments and this power is not any the less to be exercised merely because
the statements were immaterial." The court refused to enjoin the com-
mission from proceeding with its investigation. 6

3. Qualifications. Qualifications for taking examinations may be re-
quired of applicants. The statutes themselves often require some quali-
fications such as age or residence or citizenship, and civil service rules
often specify others. It seems that the personnel agency, by virtue of its
power to formulate rules to make the civil service law effective, may
make such additional requirements if they are reasonable and have a
substantial bearing upon merit or fitness to perform the duties of the
positions that are to be filled. The courts will examine into the question
of whether any particular qualification imposed is reasonable and within
the legal power of the commission to require. 7

A civil service commission must adhere to the rules it has prescribed
for admission to examinations, and if changes are to be made in the re-
quirements laid down in the rules, those changes must be made in the
proper manner. 8

a. Education, Experience, Physical and Moral Fitness. An example
of the type of requirement commonly found in civil service regulations is
that of a high school education. This requirement is usually valid, but
both the phraseology of the statute and the nature of the position to be
filled will affect its validity in a particular instance. A city charter pro-
vided that "no one shall become a member of the police department un-

less he shall be able to read and write the English l;mjuayc." Provision
was made for free, open, and competitive examinations, the charter stat-
ing that "such examinations shall be for the purpose of determining the
qualifications of applicants for positions, and shall be practical and shall
fairly test the fitness of the persons examined to discharge the duties of
the positions to which they seek to be appointed." The civil service sec-
tion also empowered the board to make rules to carry out its purposes
and referred specifically to examinations, appointments, and promotions.
The commission then adopted a rule which required that applicants for
examination must have completed a twelfth-grade education. The court
sustained the claim of a person to take the examination even though he
had not completed the twelve grades of the school system. The ability to
read and write required in the charter was not the equivalent of a high
school education, and to require the latter was beyond the power of the
civil service commission. 9 It has been held that a requirement of gradua-
tion from a senior high school is reasonable when applied to a group
seeking admission to an examination for positions in the general clerical
force of a city. 10

Practical experience is sometimes required; when it is, considerable
discretion is left to the commission. A requirement of five years of prac-
tical experience for a mechanic does not mean that the candidate must
have spent all that time in the actual handling of tools. 11

Physical fitness is often important, and the courts permit the personnel
agency a broad discretion in determining this fitness also. The board may
decide that it is irrelevant that a person is blind; if so, the court will not
overturn this determination lightly, if at all. 12

The question whether a person shall be barred from an examination
because he has previously committed a crime is one that is common to
the law of examinations generally. The chief difficulty arises because not
all criminal acts are of equal antisocial significance. A New York regu-
lation recited that "the commission may refuse to examine an appli-
cant . . . who has been guilty of a crime . . ." The court said of this
that it was not a mandatory prohibition, but rather that it endowed "the
commission with discretion to be exercised in the light of all available
information bearing upon the applicant's fitness for employment. Prior
criminal guilt is but one cause, among others mentioned in the rule
which 'may' prompt the commission as an administrative board to refuse
to examine an applicant. It is fair to assume that such an applicant would

be refused only in the event his moral qualities at the time of his appli-
cation, when considered in their relation to the employment he seeks,
would warrant such refusal. To interpret the rule otherwise would dis-
qualify for civil service every applicant who has been guilty of a crime,
regardless of the duties of the position to be filled or the nature of the
crime previously committed; it would disregard both the possibility and
the hope of moral reformation." 12a

b. Citizenship. Citizenship is another one of the qualifications fre-
quently required of applicants. The case law on this subject is not ex-
tensive. The general rules of citizenship furnish the applicable rules for
most of those cases which do exist, the problem of determining citizen-
ship in this connection differing in no material respect from the same
problem in connection with other subjects. Likewise the statutes requir-
ing citizenship are construed in accordance with the rules governing
statutory construction in general. 13 It is doubtful that this requirement
could be imposed in the absence of statute.

c. Age. Age limitations, both minimum and maximum, can be im-
posed by administrative regulation, providing they are reasonable and
have a close connection with the qualities that are deemed essential to
effective performance of the duties of the positions involved. For ex-
ample, an age range from twenty-five to thirty-five years is valid for traf-
fic patrol officers because of the nature of the work to be performed and
the relation that age bears to the performance of the work. 14 Likewise
a minimum age of twenty-five years is thought to be reasonable for em-
ployees in a fire prevention bureau. 15

The commission must be careful not to provide for any preferences
or requirements, other than the age requirement, that may reveal a belief
on the part of the commission that the age fixed is not really related to
the duties of the position for which the examination is being conducted.
It is unreasonable, for example, to say that one group of applicants who
have had a certain type of experience need be only eighteen years, and at
the same time to say that another group without that experience must be
twenty-five years to qualify for admission to the examination. 16

Sometimes those for whose benefit veterans' preference legislation is
enacted feel that the power to fix age ranges may be used to disqualify
veterans of wars that terminated several years ago. In order to prevent
this, some statutes have been enacted which make the age restrictions
inapplicable to veterans. "Persons thus preferred shall not be disqualified

from holding any position in the civil service on account of their age,
nor by reason of disability, provided such age or disability does not ren-
der them incompetent to perform the duties of the position applied for." 17
A statute of this type makes it impossible to set up an age qualification
that will disqualify veterans, and means that a veteran can be disqualified
only upon a showing that his own particular age has unfitted him for
the duties of the particular position for which he is applying. It makes
personal that which otherwise affects a class.

The age restriction is not always imposed as a qualification for taking
the examination, but may be phrased in such a manner as to be rather
a restriction upon the placing of names on the eligible list. In that event,
the fact that a candidate has taken and passed the examination while still
within the age limit does not render him eligible if before the eligible
list is made up, he attains the age that renders him ineligible to be a
candidate for the position. 18

If a person over the age permitted for appointment nevertheless re-
ceives the appointment, he may be removed from the position without
reference to the civil service act as to causes and procedures in removal.
It is not material for this purpose whether his appointment was a pure
mistake or whether it was wilful on the applicant's part, although in
many types of situations this factor would probably be a material one. 19

d. Residence. Residence is closely related to citizenship as a quali-
fication for taking an examination, although not all statutes and charters
require both. In the national government the requirement of residence
has been imposed by statute in some instances; when so imposed, the
commission may not make regulations that apply the rule in a manner
different from that intended by the statute. So, when a statute provided
for "bona fide" residence, the commission was not at liberty to make an
additional requirement of actual residence. 20

The meaning of the term residence is usually undefined by statute;
its definition has been filled in largely by administrative and judicial
decision. Since civil service law as such provides no rules for determining
the meaning of residence, resort must be had to the general law of citi-
zenship and residence. There is no simple and single rule for determin-
ing whether a person has been a bona fide resident of a state, let us say,
for six months preceding the date of the examination. The exercise of his
right to vote is one factor that is considered; the place where he actually
lived in a physical sense, if he did live in any one place, is another con-


sideration; the repeated return to a place from travels to distant parts
may be given weight; the place he announced and acted upon as his
home may also be taken into account; but no one of these factors will be
conclusive when taken alone. In the last instance, the court tries to find
out what the person intended as to his place of residence, looking at such
factors as those enumerated, and many additional ones, as evidences of
that intention. 21 Sometimes the statute requires actual domicile. When
this is the nature of the requirement, the problem may not be exactly
the same, but for most practical purposes domicile is the same as resi-
dence, It has been held that a minor is presumed to have adopted the
domicile of his parent, 22 The fact that a person has been away from home
while in the employ of the government does not in and of itself consti-
tute a conclusive fact against his actual domicile in the place which he
considered was his home and to which he always intended to return. 23
A temporary sojourn abroad need not carry with it an intention to aban-
don residence in the state from which departure was taken, and actual
domicile may be maintained therein even though the trip abroad has
taken a relatively long time. 24

The persons to whom a residence requirement may apply are usually
specified in rather broad terms. A congressional statute which required it
of applicants for positions "in the departmental service" in the District
of Columbia, but went on to state that "this provision shall not apply to
persons who may be in the service and seek promotion or appointment
in any other branches of the government/' was interpreted as applying
to the classified service; the exception applied to those outside the Dis-
trict of Columbia service. 25 Transfer to another department was said
not to be covered.

As stated before, statutory regulations on residence must be carefully
considered by the civil service commission. An example of a state statute
requiring residence as a qualification for public office follows: "No per-
son shall be capable of holding a civil office who shall not at the time he
is chosen ... be ... a resident of the state, and, if it be a local office,
a resident of the political subdivision or municipal corporation of the
state for which he shall be chosen, . . ." Under this provision an officer
in the classified service is subject to the residence requirement, whether
the civil service law expressly requires it or not. 20 Under the familiar rule

that distinguishes between officers and employees a statute requiring
residence as a qualification for office might be interpreted as not applying
to employees. 27

When a statute requires residence in a state, the civil service commis-
sion may not dispense with it unless expressly authorized to do so under
conditions specified by the statute itself. While professional administra-
tive opinion tends to run against the residence rule, the courts enforce it
when cases involving it are brought before them. 28 Residence and citi-
zenship in a state are not always synonymous terms, although in some
instances they may be.

A civil service commission may not subdivide a city for administrative
purposes and require special eligible lists for each subdivision, with resi-
dence in the subdivision as the basis of assignment to the lists, even
though the subdivisions are those used for general purposes of municipal
government. 29 The civil service law might require that this be done,
but unless the civil service commission has been thus empowered by law,
it is illegal for it to do so.

4. Place of Examination. The places at which examinations are to
be given are usually designated by civil service rules rather than in detail
by statute. In the national service the requirement of apportionment in
appointments has influenced the practice with respect to the places of
examination, which is understandable in view of the widely separated
areas involved in some instances. The Census Act of 1909 contained a
provision that "all examinations of applicants for positions in the gov-
ernment service, from any state or territory, shall be had in the state or
territory in which such applicant resides, . . ." Some confusion arose in
the administration over the scope of the act, and the attorney general was
asked to decide whether this act applied to the apportioned service. He
finally ruled that it applied to the apportioned service in the District of
Columbia only. 80 It was held that an employee or officer in one branch
of the apportioned service who wished to take an examination for a posi-
tion in another branch of that same service was not required to return
to the state of his domicile to take the examination. 31 A later opinion
distinguishes between assembled and nonassembled examinations, sug-
gesting that only the former were covered by the act. 32

Occasionally it happens that a person Jias taken the examination in
the District of Columbia when he should have taken it in the state of

domicile. The mistake may not be discovered until after the papers have
been graded, the name placed upon the eligible list, and the person ap-
pointed in reliance upon a certification made from the list. What should
be done? The attorney general ruled that in the absence of fraud and
bad faith, and in view of the lapse of time, the mistake had been cured,
especially since there was some doubt as to the applicant's domicile. 33

B. EXAMINATIONS

Not all the positions in the civil service are filled by examination, nor
are all those for which examination is required filled by competitive ex-
amination. But this does not mean that the appointment or employment
is free from conditions of a qualifying or formal nature. Registration
may be required instead of examination. Where such a requirement is
imposed, the personnel agency must see to it that the employee is in-
formed of it. If he is employed, knowing nothing of the requirement,
he may avail himself of such rules and benefits as the civil service law
affords to those in his class, assuming, of course, that he acted in good
faith. 34

The problems that arise because of various exceptions to the general
rule that examinations of some type are required for most positions in
the civil service are illustrated in People v. Knox. sr> This case held that
when a statute allows a person who originally entered the service by
examination to be reinstated without examination after separation from
service without fault, if he seeks reinstatement within one year from the
date of separation, a person who originally entered the service without
examination could not procure reinstatement under the statute, but
would have to take the examination to regain his old position.

Statutes, ordinances, and charters usually permit the civil service com-
mission considerable discretion in making use of the necessary aid for
conducting examinations and grading papers or other types of tests. In
the national service, and in many state governments, some departmental
examining boards were in existence prior to the enactment of the Civil
Service Act of 1883. Such boards may be limited either to departments
or to divisions within departments. Their status is not always expressly
dealt with by the general civil service act, and must therefore be deter-
mined in accordance with the usual rules of statutory interpretation. If
the new act covers the whole field and contemplates new procedures,
the old boards are superseded even though the statute makes no express
mention of their status.
Unless the provisions are carefully drafted, some difficulty may be
experienced in recruiting and financing examiners or examining boards,
whether departmental or directly under the civil service agency itself.
The national statutes recognized the necessity for detailing certain mem-
bers of the departmental service for duty in this work, but in some in-
stances made no provision for proper clerical help for such boards. The
treasury ruled in 1904 that a department could not out of its own appro-
priations employ a person whose sole duty was to act as clerk to the
examining board. 37 When compensation is based even in part upon the
performance of duties of a designated kind, a vexing problem may occur
when it comes to compensating the employee for his service on an exam-
ining board. It may be necessary to resort to provisions on travel, or those
on special duty by order of the office, to work out a theory of compensa-
tion that will satisfy the disbursing officer. 38

The question whether an outsider may be brought in to conduct an
examination is sometimes raised. The answer will be determined by
statutory provisions if there are any. There seems to be a tendency for
the courts to construe a doubtful statute so as to permit the commission
the greatest possible amount of discretion in this matter. 89

Once the question of who shall give the examination is settled, the
question of whether or not an examination is practicable must likewise
be settled. The relationship of practicability to classification has been
considered elsewhere, 40 but it should be repeated here that whether or
not an examination is practicable is a question of law, to be determined
in the final instance by the courts. 41 If a doubt exists the courts tend to
uphold the decision of the personnel agency. A person may not ask for
a competitive examination and later seek appointment on the theory that
an examination was not practicable. 42 But once it is decided that ex-
amination is not practicable, the door is opened for substituting other
requirements, such as fixed periods of experience in specified types of
positions. 43

The practicability of examination must not be confused with the prac-
tical nature of the examination; the two problems are quite distinct. It
is a usual recital in civil service laws in this country that the examinations
are to be practical or that they are to test the candidates on their ability
to perform the duties of the position they seek to fill. "Civil service ex-
aminations shall be practical in their character, and shall relate to the
duties of the position." It is not strange that under this provision the
courts encourage the commission in its tendency to examine and classify
on the basis of particular duties rather than on the basis of general quali-
fications. 44

A good deal of discretion is ordinarily left to the commission as to
the content of the examination. The mere fact that some of the questions
bear only incidentally upon the particular duties of the position is not
fatal; nor is the fact that the questions may seem somewhat vague and
.nr.l)i^i:i MIX Some basis of reasonableness is, of course, required, but given
this, the courts permit the examiners a pretty free hand. 45

The law may require other examinations in addition to the regular
ones of the usual competitive character. These may test for special skill
or knowledge, such as knowledge of the highly specialized branch of the
law of real property known as title abstracts. 46 In the case cited the court
held that what on the face of it seemed like a special test for examiners
of titles really was intended as an addition to the regular civil service
examination. A physical examination is required for some types of work;
when required, the examination must be conducted in accordance with
the valid rules prescribed for it. 47

The requirement so commonly found in civil service laws that ap-
pointment and promotion shall be based on "merit and fitness" raises
the question whether merit and fitness are to be separated or whether
they refer to the same thing for purposes of examination. It seems that
they may be separated, but that in some instances they may be consoli-
dated. 48

With respect to the conduct and contents of examinations, two cases
are of sufficient importance to require special mention. The first is Pratt
v. Rosenthal. 49 In this case the city charter provided for practical ex-
aminations to "relate to those matters only which will fairly test the
capacity ... to discharge the duties of the positions to which they seek
to be appointed." The board of health was given power to fix salaries
and prescribe the duties of those who carried on the work of the health
department. In announcing an examination for meat and market in-
spectors under the board of health, the civil service commission required

that the candidates be graduates of a veterinary college, and have three
years of experience; for a second group, to consist of laymen, provisions
were made for experience, with varying credits for the varying types and
amounts of experience. The commission said that pamphlets containing
a description of the duties to be performed and copies of old examina-
tions would be distributed to those who requested them as long as the
supply lasted. It should be added that the charter contained a provision
which forbade giving secret information concerning examinations. The
examination was assailed in a taxpayer's action on the grounds that the
examination was not practical and that the allotments of credits were
invalid.

The injunction was denied. After a preliminary statement that it was
the province of the commission and not of the board of health to pre-
scribe the tests that were to be used, the court said that to give applicants
who were veterinary graduates credit without experience and to give
laymen credit only if they had experience was a reasonable exercise of
the discretion vested in the commission. In case of doubt, the court said,
the presumption is in favor of the legality of the commission's action.
For the commission to give out the pamphlets was likewise permissible
since they contained no confidential information. The materials that
were contained in them could be obtained by consulting public docu-
ments and records which the applicants could demand to see as of right.
The court also held that in giving credit for experience it was permis-
sible for the commission to grade the different types of experience and
to give more credit for one type than for another. That is, to differentiate
between the various types of experience was held proper.

The second case is Fink v. Finegan, 50 decided in New York in 1936.
In an examination for a medical officer the subjects and weights were as
follows: "Experience, 3.70 per cent required; technical 5.75 per cent re-
quired; oral 2.70 per cent required; and 70 per cent general average
required." The candidate passed the written test and correctly answered
oral questions of a technical character. He was told that he had failed
to pass the oral examination. "The reasons given for this failure were
that in the opinion of the examiners, ,ilihoi:^h he was pleasant in manner
and bearing and in comprehension fairly quick, he lacked force and ex-
ecutive ability, and was altogether too mild. The examiners were unani-
mous in ivm, irking 'we do not believe he would make an acceptable
police surgeon and medical officer.' " He asked for a rerating of the ex-
amination. The examination had been conducted by three eminent sur-
geons nominated by the Academy of Medicine, each of whom rated the
petitioner independently. On mandamus to rerate the examination, the

court of appeals decided that an alternative writ should have been granted
and sent the case back for further consideration, but in doing so laid
down the general limits of the types of tests to be used and the conditions
under which they might be used. The opinion should be set forth at
length.

"The State Constitution requires that appointments and promotions
in the civil service 'shall be made according to merit and fitness to be
ascertained, so far as practicable, by examinations, which, so far as prac-
ticable, shall be competitive/ N. Y. Const, art. 5, sec. 6. This mandate
has been rendered effective by appropriate legislation.

"The keynote of civil service is merit and fitness, comprising not only
efficiency, but character and loyalty to duty. This must be ascertained, as
far as practicable, by examinations which, as far as practicable, shall be
competitive.

"The constitutional provision for civil service has not left the mandat-
ing to implication, but expressly provides that: 'Laws shall be made to
provide for the enforcement of this section.' Const, art. 5, sec. 6. In ac-
cordance therewith, the Legislature has enacted the Civil Service Law
(Consol. Laws, c. 7) and the amendments thereto. The Civil Service
Law divides the civil service into the classified and the unclassified serv-
ice (section 9), and subdivides the classified service into four divisions:
the exempt class; the competitive class; the noncompetitive class; and, in
the cities, the labor class (section 12). The positions of police surgeon,
medical officer, and medical examiner have been classified by the New
York City municipal civil service commission as competitive. Rules of
Commission, rule X, part XII.