"No one questions that in all the tests given the petitioner, except
perhaps the oral one, there was competition. Nor is the oral test ques-
tioned in so far as it tested technical ability. The examiners, however, in
giving the oral test also attempted to test the personalities of the candi-
dates. They have eliminated the petitioner on the ground that he is lack-
ing in force and executive ability. The test or measure of executive ability
nowhere appears. All that the record shows is the conclusion that the
candidate lacks these qualities.

"A test or examination, to be competitive, must employ an objective
standard or measure. Where the standard or measure is wholly subjec-
tive to the examiners, it differs in effect in no respect from an uncon-
trolled opinion of the examiners and cannot be termed competitive. Cf .
Barthelmess v. Cukor, 231 N. Y. 435, 132 N. E. 140, 16 A. L. R. 1404;
Barlow v. Berry, 245 N. Y. 500, 157 N. E. 834.

"This does not mean that competitive examinations must be limited
to tests of knowledge and physical ability. Objective tests have been de-

vised and are being developed which measure many qualities and char-
acteristics. For example, tests of intelligence such as the army Alpha
test and the Binet-Simon tests have been generally accepted. Mental
alertness tests and special ability and aptitude tests of many kinds are
widely recognized.

"The oral test serves its purpose in a competitive examination. Obvi-
ously it may be employed as a test of knowledge. In addition, it may be
used to test other qualities. For example, in the selection of teachers it
may be necessary to appraise their voices for carrying power, distinctness,
and absence of speech defects. Such tests are necessary, particularly where
the pupils are young and prone to learn through imitation. A teacher
who answers all the technical questions correctly may not be acceptable
or may be given a lower rating because he stutters or has so feeble a voice
as to preclude his being heard throughout a large classroom.

"The above qualities may be tested objectively, albeit orally. A definite
standard may be formulated. In the case at bar, no standard appears. An
examination cannot be classed as competitive unless it conforms to meas-
ures or standards which are sufficiently objective to be capable of being
challenged and reviewed, when necessary by other examiners of equal
ability and experience.

"Some positions in the civil service may require that the person who
fills them have certain qualities which cannot be measured by existing
objective tests. This fact should not make it necessary to place the posi-
tion wholly in the noncompetitive class. The Constitution requires that
the examination be competitive as far as practicable. Thus, for such posi-
tions, the examination should be competitive except for the testing of the
qualities not measurable by objective tests. Cf. People ex rel. Sweet v.
Lyman, 157 N. Y. 368, 52 N. E. 132. However, before a noncompetitive
test is made part of an examination for a competitive position it should
be found that the quality to be tested is essential for the position and that
no objective standard or measure is available. That industry examines
for these qualities by noncompetitive examination, relying upon the
subjective reactions of the examiners, should not be conclusive. The
employer in industry generally has a self-interest in the selection of
capable and efficient employees which is not so strong in the case of civil
service examiners. Noncompetitive examinations may readily be manip-
ulated by the unscrupulous with little likelihood of detection. Politics,
passion, and friendship may play their part. Even the most scrupulous
examiner may be influenced in his determination by unconscious preju-
dice and bias. For these reasons, the noncompetitive test should not be
employed unless the need is imperative.

"The determination of the necessity for such a test is a discretionary
one to be made by the municipal civil service commission subject to re-
view by the state commission, and, if the discretion is abused, by the
courts. In the case at bar, however, there has been no finding that execu-
tive ability and force are qualities necessary for the position, nor did the
announcement of the examination reveal that these qualities would be
tested. There has been no finding that these qualities cannot be measured
objectively. Upon the face of the record before us, these examiners, with-
out warning or notice, and without a finding by the commission that the
qualities of force and executive ability are necessary for the positions and
cannot be measured objectively, have employed what amounts in effect
to a noncompetitive test of these qualities, and have eliminated the peti-
tioner on the ground that he lacks these qualities. From all appearances,
this is not an exercise of discretion in accordance with the Constitution
and the Civil Service Law.

"The Civil Service Law and rules would seem to require that the
commission prepare lists of preliminary requirements and subjects of ex-
amination and publish them with the notice of examination. Civil Serv-
ice Law, sec. 14; Rules of Municipal Civil Service Commission, rule V.
sec.II(i),sec.IV(8-b).

"Unless the commission can show that the test of force and executive
ability was objective or that it properly exercised its discretion and de-
termined that a noncompetitive test was necessary and gave notice there-
of, the examination of the petitioner should be rerated or the examination
set aside and a new official list established.

"The orders should be reversed, and the motion for an alternative
order of mandamus granted, with costs to abide the event."

[The civil service commission usually has power to investigate the con-
duct of examinations as part of its general power to investigate the
operation of the civil service law. As an aid to the power to investigate,
the statutes may give the power to obtain such papers and materials as
may be necessary and relevant to the inquiry. The person who is re-
quested to furnish materials, in the investigation of an examination, for
example, must plead the right of refusal to give the material on the
ground that it will tend to incriminate him if he is to receive the benefit
of tlje right; he cannot sit silently by and later raise the defense^ 1

[As a disciplinary matter, the civil service commission may discharge
one of its own employees for failing to handle the papers and grades
properly ^)In one case a person who was in charge of the computing room
took with him, and carried in his pocket, a memorandum of the grades
of various candidates. At the time rumors were rife that various indi-

viduals knew what they had received on the examination. The employee
was under no duty to check these rumors. The court sustained the power
of the commission to remove the employee, 52 stating that had he wished
merely to check the reports against the ratings, he might have looked at
the ratings in the computing room, but that it looked odd for him to
be taking the ratings with him when he left that room.

Civil service rules or statutes sometimes provide for a review of ex-
amination papers by the commission. An example of such a provision
follows: "A competitor may inspect his examination papers, and upon
a definite written showing of errors in marking or of errors in computing
the results thereof, received by the commission within thirty days of the
notice of the examination results, the commission may review the points
in question and make proper correction. In no other case will the result
of an examination once completed be changed." The court held that
under this rule the commission could not proceed to review an examina-
tion paper unless a request was filed with it by the complaining com-
petitor. 53

The courts are sometimes asked to review the work of the commis-
sion or its staff in the grading of papers or in the rating of candidates. 54
Their attitude in general is well expressed by the following quotation
from the California case of Mitchell v. McKevitt. 55 "To have the courts
review by their necessarily slow process the questions and answers of
every person who voluntarily submitted himself for examination as to
his qualifications and who thereafter had a competitive test that was
devoid of prejudice, caprice and arbitrary action, practical in its charac-
ter, given and determined in good faith by persons of a high degree of
proficiency, but who (examinee) was dissatisfied would be a burden
upon the courts and the taxpayers who maintain them."

A regrading of the papers of some does not necessarily give all those
who took the examination a right to have their papers regraded. 56

The writ of certiorari will not lie to review the grading of papers be-
cause such grading is an administrative and not a judicial act, certiorari
lying only to review judicial or semi-judicial acts. 57 An attempt to in-
quire into the correctness of the grading of examination papers of a
person who had been in the service for some time and was now being

removed was unavailing. The removal did not give rise to any question
of his grade or rank, the court said. 58

The question of reopening an examination is one that has come up
occasionally, but on which there have not been many formal rulings.
In the national government the question of the power of the civil service
commission to reopen an examination to veterans, who had been ex-
cluded but who were now eligible by virtue of a statute enacted just
after the examination had been given, was submitted to the attorney
general. His opinion was that if the commission found it in the interests
of good administration to reopen the examination to only that group, it
could be done; but that if the interests of good administration did not
demand it, then if reopened at all, it must be reopened to everyone who
wished to take it and who qualified for it. This decision was based on
the recitals in the statute that the presidential rules were to be enforced
in the interests of good administration. The statute, of course, was to be
enforced in any event. 59

If during a probationary period a person voluntarily takes an ex-
amination he is under no duty to take, that does not have the effect of
postponing the date upon which the probation terminates and ripens
into permanent appointment. 60 It sometimes happens that a person be-
gins work on a voluntary basis as a method of becoming familiar with
the duties of the position, in the hope that thereby he may later take an
examination and pass it successfully. Suppose that he takes the examina-
tion and fails to pass it. Would he then be entitled to compensation for
the period during which he worked ? It has been decided in the national
government that if there was an agreement that he was to be appointed
and compensated if he passed the examination, he could not be paid for
the period that he actually worked if he failed that examination. He was
a volunteer, subject to the rules that govern services rendered upon that
basis. 61

Penalties for violation of civil service acts are provided for in general
terms in most instances; this is also true of perjury or conspiracy to de-
fraud the government and those other crimes that arise from the great
variety of specific statutes affecting relationships between the government
and private individuals. In the national government the question came
up whether an indictment for conspiring to defraud the government "in
any manner or for any purpose" was supported by an agreement to im-
personate another at a civil service examination. The court held that the

indictment was good, and that obtaining a position to which one was
not legally entitled constituted a fraud on the government and an agree-
ment to do so a conspiracy to defraud. 82

II. ELIGIBLE LISTS

Once the examination has been given, the papers graded, and the
candidates ranked, their names are placed upon an eligible list from
which names are certified to the appointing officer at his request.

Usually the eligible lists are expressly referred to in the statutes, but
if they are not expressly authorized, the personnel agency has the power
to formulate rules concerning the creation and administration of such
lists as part of its general authority to make rules for the effective enforce-
ment of the act. Not only is it a power of the commission to establish
such lists, but it is its duty to do so. Mandamus will lie to compel the
preparation of such lists if the civil service commission refuses to estab-
lish them. 88 The administrative head of a department within the civil
service can be compelled to prepare a statement of the number of posi-
tions that are vacant on a particular schedule. This having been done,
the civil service commission is under a duty to prepare an eligible list
from which certifications can be made to the appointing officer.

Sometimes the name of a successful examinee is left off the list by
clerical error. The one whose name has been omitted from the list may
obtain mandamus to compel the proper authority to add it. 64 The rule
has been enunciated by one court that his rights may even extend to certi-
fication if his standing was such that he would have been certified had
his name been on the list. If others had priority over him, so that his
name would not have been certified for the particular vacancy, then his
remedy is mandamus to have his name placed upon the list. 65

Those whose names have been placed upon the list are entitled to re-
tain their positions upon it during the legal life of the list. The term of
that legal life may be fixed by statute or by commission regulation, but
whatever the term, he who is at the head of the list by legal right retains
his position and cannot be displaced by a new examination given before
the list expires. Those who take a new examination under such condi-
tions cannot be placed above him. To adopt a rule to the contrary has
been held not to be within a statutory authorization to the commission
to make "reasonable rules and regulations" concerning the duration of
a list. 66 But the rule as stated in this paragraph may be changed by law,
and in some instances has been changed, to permit later examinees to
displace those on the list. 67 The law may also permit a transfer into the
position for which certification otherwise might be made, with the result
that those on the eligible list are excluded from certification. 68

The civil service commission may be vested with power to strike
names from the list after a fixed time. "There is, of course, nothing objec-
tionable in such a power of removal vested in the commission." 69 The
laws sometimes provide for striking names of persons who have been
certified and who have been appointed. 70 In Mann v. Tracy 71 the civil
service commission, which was authorized to make rules for the enforce-
ment of the civil service act, had inserted in the notice of examination
that the eligible list would cease in three years after the determination
of the list, and that the commission could strike names from the list after
two years. The court held that to terminate a list within three years was
reasonable on the theory that the examination might not be a test of fit-
ness for a longer period than that. The insertion of the announcement
in the notice of examination constituted an exercise of the rule-making
power. Finally, the court decided that it was not necessary actually to
draw a red line through the names on the list after it had expired; it was
sufficient that there was a rule terminating the list. "It is immaterial
that they were not actually stricken out with red ink; they were auto-
matically expunged."

The San Francisco charter contained a provision that empowered the
civil service commission to strike names from the register of eligibles
"after they have remained thereon more than two years." A plaintiff
who had been an eligible for two years claimed that he had not been on
the register continuously for that period, as he had been appointed to
do seasonal work, and that therefore he could be removed from the list
only in accordance with the provisions governing removal from office.
Furthermore, a civil service rule gave preference in employment to per-
sons who had six months of seasonal service in one or more departments.
Could the plaintiff's name be stricken from the register at the end of two
years even though he was employed for a portion of the time ? The court
upheld the power of the civil service commission thus to remove his
name. 72 The removal provisions of the civil service law did not apply,
because when he was laid oflf seasonal work he was an "unemployed
eligible" and not a permanent employee. His appointment to do seasonal
work did not remove his name from the list of eligibles so as to interrupt
the two-year period. When the charter says that the commission may
strike the names of "candidates," that also includes names of those tem-
porarily employed. It was not necessary that his name remain on the list
for two years. The court passed by, though >:;i.':.:v * !:.:. the question of
the power of the commission to strike his name while he was engaged
on his temporary employment.

When an inferior court order to strike names is appealed, the com-
mission should not strike the names but should await the outcome of
the appeal. 73

In New York a person applied for examination, passed it, and com-
plied with all the formalities for having his name placed upon the eligible
list, including certificates of physical fitness from a physician and of
general character from three citizens. The commission did not prescribe
any special physical examination under its own supervision. Later his
name was stricken from the list on the ground that he was physically
incompetent. No notice was given him by the commission. The court
held that the action of the civil service commission was wrongful and
ordered his name restored to the list. 74 The opinion said that the service
was safeguarded against physical incompetency inasmuch as provision
had been made for a probationary period, during which incompetency
would be discovered. Even if the candidate's name had been placed upon
the list by error, or without examination, notice and an opportunity to be
heard would be required.

A person on the eligible list has no property right in that place, but
this does not mean that he has no rights that will be recognized by the
law. Removal provisions are doubtless not intended to apply to removal
from a list, but the elements of removal procedure, such as notice and
explanation, seem reasonable requirements whether or not provided for
by statute. A distinction should be drawn between terminating a list
entirely and striking the name of some particular individual from the
list. In the first case, general principles of law would seem not to require
notice to each and every person whose name is on the list. But when the
name of an individual is stricken from the list, it should be done only
after notice of an intention to strike and after an explanation and, if the
facts warrant it, after a hearing. Civil service statutes should provide for
such a procedure or should require the commission to make regulations
ensuring it. A position on the eligible list is valuable even though it may
never result in certification or appointment. The point of significance is
that the chances of its doing so are sufficiently great to justify the drafts-
men and the courts in recognizing their worth. The law recognizes even
more tenuous advantages than the superiority of one who is on the list
over those who are not on it.

The principle that should be applied to termination of an eligible list,
of course, is that those on the list be given general notice of the duration
of the list, either through prior announcement or by reason of some gen-
eral statutory provision or administrative regulation. This conforms to
rules governing notice in other fields of the law. But when the rights of
an individual are specially concerned, differently from those of the rest
of the class, a different situation arises.

In People ex rel. Keisler v. Moscowitz 75 the relator had passed the
examination and his name had been placed on the list of eligibles. There-
after the civil service commission ordered his name removed from the
list. The commission in examining into the relator's past, had uncovered
certain facts concerning business affairs which it considered unsavory
and which it believed were related to his fitness. The relator failed in
his attempt at restoration to the list by mandamus. The court held that
the commission had the power to investigate the fitness of the relator,
including the right to investigate his past record, and that in the light of
the facts found, the action of the commission was not arbitrary.

The vacation of an eligible list affects only those who are on the list
at the time of the vacation. Termination of the list does not affect the
status of those who have been certified from the list, even though they
have not been appointed to office. No withdrawal of the certified group
is effected through termination of the entire list itself. 76

A rule fixing the term of a list at one year and until "a new list is
established under the same title . . ." is valid under a statute that pro-
vided that "the term of eligibility shall be fixed for each eligible list at
not less than one nor more than four years." 77

The civil service commission may wish to extend an eligible list in-
stead of terminating it; this gives rise to opposition from those who are
anxious to take a new examination for the positions for which certifica-
tion is to be made from the list. Whether the civil service commission
may extend the period is, of course, a question of statute. Whether the
IccM.Uiiir may extend it by law is a question of constitutional power in
some states.

that an examination was given provided that no eligible list should last
more than three years. A person took the examination, passed it, and re-
ceived a rank on the list. A subsequent statute extended the term of the
list to four years, and a still later one by four more years. The court de-
cided that since it had been found "practicable" to give competitive
examinations for the positions involved, that finding having been made
by the legislature when it authorized the use of competitive examination
for these positions, it was unconstitutional under the provision on civil
service to confer eligibility for appointment by legislative extension of the
list. To render the persons on the list eligible after it had expired was the
same as placing them on the list without examination.

In Ciaccia v. Board of Education 79 an injunction was denied in the
lower court to prevent the appointing officer from appointing a person
certified from an old eligible list that had been revived by the 1. ,/ !, : /
after its term had expired under the old law. The court of appeals thought
that the injunction should have been granted. For the legislature to ex-
tend the old list for more than a limited and reasonable time was thought
to violate the New York constitutional provision requiring appointments
to be made in accordance with merit and fitness. The court used the argu-
ment that with the passage of time.a prior examination loses its reliability
in the choice of the most jit persons. New candidates may now be avail-
able who possess a greater degree of merit and fitness.

A civil service rule provided that "all eligible lists resulting from orig-
inal examinations shall be effective for two years . . . from the date
of enrollment, provided that the commission may, before the expiration
of the two year period, extend for not more than one year and only until
a new list is obtained from examination." A list was made up on Febru-
ary i, 1929, and was extended for one year from February i, 1931. It was
extended for another year from February i, 1932. The court seemed to
think that the action of the commission was valid. 80

May a civil service commission cancel an entire list before the period
specified for its duration has expired ? It is one thing to remove the name
of a person from a list or to terminate a list upon the expiration of the
period for which it is to be effective legally. It is quite a different matter
to cancel the entire list because c f , . , 1 " \ in the examination and in
the steps preliminary to the establishment of the list. In one case the civil
service commission canceled the list and ordered that a new examination
should be held. The court decided that the commission could not set
aside the list unless there had been some serious irregularity in the ex-
amination or in the ratings given as a result of it. The fact that waivers

had been obtained from those who stood higher on the list in favor of
some who stood lower was not fatal to the list, but affected procedures
subsequent to the establishment of the list itself. "The clear legal duty
of the commission, having once established the list, was to continue it in
existence as a single list for the period fixed by law, or by rule having
the force of law." 80a

The remarks of the Ohio court upon the relationship of a position on
the eligibility list to the right of certification are interesting. A civil serv-
ice rule required that "in positions where the nature of the public service
requires the joint employment of persons related by blood or marriage
. . . both such persons must be eligible in order that either be certified.
In such cases, standing on the eligible register will be determined by the
average grade of both." The husband had taken and passed the examina-
tion. His wife was unable to pass it. He was appointed, apparently in re-
liance on a statute that empowered the employing officer to employ a
"matron and such labor from time to time, at a rate of wages to be fixed
by the county commissioners." The appointment was treated by the court
as a provisional appointment, and not as one coming under the classified
service. The husband was removed and claimed the right to reinstate-
ment under the civil service act. He failed to obtain reinstatement. In
the course of its opinion the court said that the receipt of a notice by the
husband that he was number one on the eligible list did not amount to
a certification of his name. Neither did the fact that his name was on the
list mean that he was eligible for certification. That could be assumed
only after the commission had certified him as eligible. His remedy was
mandamus to compel certification. He had no recourse against being
removed from a provisional status. 81

Statutes and rules are sometimes phrased so as to give veterans a pre-
ferred status at the head of the eligibility list. When this is the case, the
certification preference is assured.

The statutes not infrequently state that certification is to be from the
"most nearly appropriate eligible list" if it happens that no list is avail-
able which has been specifically established for the particular position to
which appointment is to be made. A statutory requirement of this type
is not met by reducing an existing list by means of a new examination.
To reduce a list in this manner is deemed to be the establishment of a
new list, and the statutory requirement is that if there is an existing
appropriate list, it is to be used. 82


III. CERTIFICATION

Only the more general aspects of certification are dealt with in most
statutes, charters, and ordinances. Details of the procedure to be followed
in certifying eligibles for appointment are prescribed by rule. Since certi-
fication is an important step in the process of selection, it has been given
legal significance in a number of different situations. For example, it
has been suggested by one court that inasmuch as an appointment was
not made through the certifying procedure, it was to be treated as not
having been made under the civil service law. Not having been made
under that law, it was not governed by it, and the person who had been
appointed was not entitled to protection against removal. 83

The initiative in case of a vacancy is not to be taken by the civil service
commission. The appointing officer is to notify the civil service commis-
sion of the vacancy and to request the certification of eligibles for the po-
sition. Until the appointing officer acts there is nothing the commission
can do about filling the vacancy. It is for this reason that a court will not
issue a writ of mandamus to compel the civil service commission to
certify the name of one who claims to be eligible and entitled to certifica-
tion, even though he is on the list to be sent the officer if the latter so
requests. No duty rests upon the certifying authority to act until the ap-
pointing officer has first acted. 84

A person standing second on the list of eligibles, the highest of whom
is to be certified, cannot obtain mandamus to compel certification unless
he can show that the appointing officer offered the position to the person
above him and that person refused it. 85 Some authority seems to exist for
compelling action in appointing one or the other of two persons highest
on the list. 86

The fact that a candidate has passed the civil service examination and
is on the eligible list does not in and of itself entitle him to appointment
when a vacancy occurs. This is true even though only the one person who
is asking for appointment took the examination. An appointing officer
may not wish to fill a vacancy, and it is his privilege to refuse to do so.
For this reason a person whose name is at the top of the eligibility list is
not entitled to either certification or appointment in the absence of a re-
quest by the officer having the power to make the appointment. 87 Of
course, if the appointing officer takes action showing his intention to fill
the office, a different case is presented.

A refusal to certify the name of one who is entitled to certification
upon the request of an appointing officer would create a cause of action
on the part of the person whose name was withheld. Presumably it
would be necessary for the person to show that a specific vacancy ex-
isted, that a request had been made by the appointing power for certifi-
cation, and that he was in the position on the eligible list which would
entitle his name to certification. 88 The suit may be for salary lost through
the exclusion of his name from the list, according to some authority, 89

The question of eligibility is to be decided by the civil service commis-
sion. It is not within the power of the appointing officer to make that
decision. 90

Officers who are vested with the power to appoint quite naturally like
to have certification made to them from as full a list as possible. But
because of the nature of civil service requirements, the list eventually
shrinks to a point where the officer feels that he is not being given as com-
petent nor as large a group to select from as he prefers. It has been held
that when there are three names left on a list and one of the persons whose
name is among the three dies, it is permissible for the appointing officer
to appoint from the two whose names are certified to him. 91 A person
who took the examination alone and who was certified and appointed
under the rule of three, no other two being included, was entitled to the
position as against a holdover. 92

Sometimes the civil service law or the regulations made thereunder
provide for the contingency that may arise when less than three names
are left on the eligible list. "Whenever the eligible list certified contains
less than three names, the appointing officer in his discretion may make a
selection for appointment from such list or proceed as provided in section
four or section ten of this rule, subject, however, to the provisions of the
constitution giving preference in appointment to veterans." In one case
plaintiff and another were certified to the appointing officer. The other
was appointed but declined the appointment. The officer refused to ap-
point the plaintiff, who claimed that the refusal was based upon his color.
It appeared, however, that the plaintiff had previously been discharged
from a position in the noncompetitive service, and the court denied an
application for mandamus. It emphasized the power of the appointing
officer to "select" a person for the office, and insisted that inasmuch as
selection involved choice, the appointing officer could not be compelled

to appoint the only candidate left, since that would not be an exercise of
his power to make a choice. 98 When only one name is left on the list, the
commission cannot be compelled to certify it if the rule is that three are
to be certified. 94

The duties of a position as well as its title are to be considered by the
civil service commission when it certifies the names of eligibles. 95

A statute provided that "in case of any vacancy in the classified serv-
ice ... the commission shall certify in writing . . . names . . . not ex-
ceeding three in number . . ." The question of the number that should
be certified by the commission arose. The court decided that a certifica-
tion of two names would comply with the statute. The certification of
three could not be compelled, apparently, nor would a certification of one
fulfill the requirements of the statute. 96

The extent to which the commission may go in making notations for
the information of the appointing officer in the certification of names has
caused some difficulty. A statute provided: "The board of examiners
shall place all applicants examined for positions on the police force and
for positions on the fire department who have successfully passed the
examination ... on separate eligible lists, and shall certify the same to
the board of commissioners." The law continued : "The board of commis-
sioners . . . shall appoin^ the person having the highest general aver-
age" unless that person is morally or physically unfit. Certification of the
plaintiff's name was made, with "insubordination" written alongside it
under the heading of "physical condition." The court decided that this
was not valid. 97

Mistakes occur in certifying persons, and one who fails to be declared
eligible through a mistake may subsequently be certified as eligible. If
the person who passed an examination is not eligible for some other rea-
son, but nevertheless is certified as an eligible and appointed upon the
basis of the certification, the civil service commission may not withhold
the approval of his payroll item. 98 The court said that the appointing
officer could not go behind the certification and inquire into eligibility,
but left open the question of the commission's power to revise its own
judgment on the candidate's eligibility.

The civil service commission may revoke a certification after it has
been made and before it has been acted upon by the appointing officer.

The commission does not appoint by reason of its certification, so that
the withdrawal of a name because the person is found to be ineligible
is not a discharge, and is not to be governed by the procedure prescribed
for removals."

In the national government a list of four persons was certified for ap-
pointment when there should have been only three names on the list.
The appointing officer appointed the fourth man. There appeared to be
no fault on the part of the person who was appointed, and it was held
that he was entitled to retain his post. 100 In another instance of a mis-
taken certification, no dishonesty or fault being present, the appointee
was left undisturbed in his position. 101 In still another the attorney gen-
eral ruled that the appointing officer was justified in relying on the certi-
ficate of the commission in so far as questions of eligibility were con-
cerned. 102

Some courts differentiate between a mistake on the part of the civil
service commission in exercising its discretion in the certification of eli-
gibles and illegal acts of the commission. Honest mistakes are not dis-
turbed by the courts as a usual rule. "Much discretion in matters pertain-
ing to the civil service is conferred upon the commission. If the statute
was not followed strictly, under the facts and circumstances shown, its
violation was only in a mere technical sense, not amounting to an il-
legality within the meaning of that term as used in certiorari proceedings
in which it is made the ground for the issuance of the writ." 103 A New
York case says that reliance on certification will not be disturbed so long
as no misrepresentation of material facts prior to certification is in-
volved. 104 Other states have applied the same rule. The protection against
removal has been applied in favor of a person who was certified upon
the basis of a grade that was too low but who was not responsible for the
error.