Q. Because the law provides that political opinions and affiliations shall not be regarded in making appointments.

A. No question about political affiliations; simply a question of a man's right (York test., pp. 254-255).

Commissioner Abell testified that he knew the politics of the man whom he nominated for promotion (Abell test., p. 278).

Q. And do you agree with Commissioner York, when he testi fied that, other things being equal-or rather, do you differ from Commissioner York that, all things being equal, you would select a republican rather than a democrat?

A. I think I would, notwithstanding.

Q. As I understand him, he said, other things being equal, he would prefer appointing a democrat instead of a republican? A. Precisely, and you see just where we were in our proceedings.

Q. You would agree with him, except that you would reverse it?

A. Everything being equal, as a representative of a political party, I would as a commissioner, I would, if there were nothing unequal (Abell test., p. 283).

Commissioner Sexton was handed a clipping from the New York Sun of December 28, 1900, purporting to contain an interview with him, and asked to point out anything in that part of the article which professed to give his interview which was incorrect. After examining it he stated unequivocally that it was true (Sexton test., pp. 163, 164). That part of the article to the truth of which he bore witness read:

"At the conclusion of the meeting Commissioner Sexton gave out the names of the men whom he had recommended for promotion, and the names of the men who had recommended them to him. His men were Captains Cooney, Flood, Foody, Kear and Lantry. Captain Cooney was recommended to the commissioner by Matthew Donohue, deputy commissioner of sewers, and former Police Inspector Thomas McEvoy, who is the Tammany hall leader of the twenty-third assembly district.

"Captain Flood was recommended by President Haffen of the borough of the Bronx, who is Tammany leader of the thirty

fifth district, and by Park Commissioner Moebus of the Bronx, who is Tammany leader of the upper part of the thirty-fourth. Senator Bernard F. Martin, of the fifth district, recommended the promotion of Captain Foody. Former Police Justice Daniel F. McMahon, who is chairman of the Tammany hall executive committee, recommended Captain Kear, while Captain Lantry had the indorsement of his brother Francis, commissioner of correction. Commissioner Sexton made no bones about the political character of the recommendations of the men whose promotions he secured."

Commissioner Sexton was examined on the facts as stated in this interview and substantiated them in his testimony (Sexton test., pp. 159, 162, 165, 167).

He was asked directly the following question:

Q. And you "made no bones" about the political character of the recommendations of the men whose promotions you secured?

A. No (Sexton test., p. 162).

In addition to Commissioner Sexton's own testimony, George McAneny, secretary of the civil service reform association, testified to an interview he had with him at the Democratic club on the evening of December 28, 1900. Mr. McAneny was accompanied by a member of his office force, George F. Carter, who was present at the interview. Mr. McAneny testified that he presented the clipping from the New York Sun of December 28, 1900, and asked the commissioner if this was a correct report; that Commissioner Sexton said that it was correct; that the list of the political backers of his men was a correct list, and that he had seen it himself before the reporter had seen it, and that he gave it out to the reporter. Mr. McAneny further testified that he asked Commissioner Sexton how the police commission had been guided in making the divisions of appointments by which he had received more than any of the others, Mr. York four only and the others but one each; that Commissioner Sexton replied "that the commissioners had talked the matter over beforehand, and that this seemed to them the proper distribu

tion; that the political organization which he representedwhich I (McAneny) understood was Tammany hall-being the predominant element in local politics, was entitled to most of the appointments." As a further reason, Commissioner Sexton stated that when the present administration came into power seventy per cent of the captains then in the department were republican (McAneny test., pp. 324-326). Mr. McAneny's testimony was corroborated in all essential points by Mr. Carter (Carter test., pp. 339-342).

It has been shown by the testimony taken:

1 That the police board delayed the holding of a promotion examination from sergeant to captain under the civil service law for over two years, and that meanwhile the vacancies were filled arbitrarily by the assignment of favored sergeants as acting captains without any examination.

2 That the police board pretended to answer specifically the questions on the certificate of conduct and efficiency, but in fact did not do so, but having arbitrarily and without records or the reports of immediate superiors, and without inquiry as to the previous service of the great number of candidates who were not personally known by all the police commissioners, determined which of their acquaintance they would rate as "Excellent" and what general term they should apply to the others without giving any consideration to the various traits of character and various qualifications as to which specific inquiry was made by the questions, and used the same adjective to answer all the questions so far as any particular candidate was concerned without reference to the separate subjects covered. That this was a violation of rule LIV, in which the questions on the certificate are specified as separate subjects of examination, and contrary to the purpose of the commission in requiring this certificate, and with manifestly a false certificate. 3 That the police board, after informing the civil service commission that they should use a schedule of six adjectives, "Excellent," "Very good," "Good," "Fair," "Poor," "Not good," in rating the certificates, arbitrarily and without the knowledge of

the civil service commission, divided all the candidates into three classes only, "Excellent," "Fair" and "Poor." By this action the civil service commission was misled in their rating, and the final standing of a majority of the candidates was materially affected.

4 That although 173 sergeants applied for the competitive. examination required by law, only those personally known to the police commissioners, those whom they desired to promote, received the rating "Excellent," and those who were unknown were marked as "Fair," regardless of their actual merit, and without any effort to ascertain it, and that those whom the police board did not wish to promote under any circumstances-among them a number of veterans-were marked "Poor."

5 That although the answers to the questions were certified by the police board to be based "on records and reports," in fact they were based almost exclusively on the personal knowledge of the police board, and in many cases were in direct contradiction to the records.

6 That the municipal commission was in error in accepting certificates which were not answered in accordance with their instruction and in attaching fixed weights to the ratings of the police commissioners when from the records before them it was clear that the police board had falsely certified that they were based on records and reports. Further, that the civil service commission in their rating did not give "due weight" to seniority as is required by the law, and gave undue weight to the certifi cates and records as evidence of efficiency, character and conduct.

7 That the result of the foregoing actions of the police board and the civil service commission was that competition was set aside, and that the police board arbitrarily and at least substantially fixed the status of candidates upon the eligible list. That this was a violation of article V, section 9 of the constitution, which provides:

"Appointments and promotions in the civil service of the state. and of all the civil divisions thereof, including cities and vil lages, shall be made according to merit and fitness, to be ascer

tained, so far as practicable, by examination, which, so far as practicable, shall be competitive."

8 That the motive of the police commissioners in conducting an unfair and illegal examination is shown by the admissions of Commissioners Sexton and York that the promotions to be made were dictated by individual members in pursuance of a prearranged plan of division, and that this division was based on the political or other claims of individual members.

9 That the promotions made by the police board were based on political considerations, in violation of section 23 of the civil service law.

Inasmuch as by the statutes the sole power of the State Commission in these cases is to investigate and report, and inasmuch as the State Commission is given no power whatever to set aside an examination conducted by a municipal commission (no matter how tainted with fraud or how irregular it may be) and can not declare any appointment made to a municipal position invalid, even though resulting from such an examination, the State Commission respectfully recommends that a copy of this report, with the full testimony in the matter, be forwarded to the municipal civil service commission of the city of New York, with the statement that the State Commission desires them to take forthwith such steps as they are empowered or required to take by the statute or by the civil service rules of the state or of their own municipality.

The State Commission also believes that the rules of the municipal commission in relating to promotions should be amended substantially as follows:

That rule XXXVIII of the municipal civil service rules be amended by striking therefrom the entire fourth paragraph, and substituting in lieu thereof the following:

"The test of actual service being the main factor for fitness in promotions, there shall be kept in every office continuous and comparative records of the efficiency, punctuality, attention and general good conduct of all persons employed therein. Such records shall at all times be open to inspection to the municipal commission for the purpose of verification or otherwise, and if