Upon the scoring of examination papers, before the identity of the aspirants was known, relator received a grade of 88.138. This grade ranked him in sixth place among those who passed the written test. He was notified of this result by the civil service commission on July 20, 1939. On September 15, 1939, after the identity of the aspirants became known, the civil service commission sent him the following notice:
"Re: Examinations for Police Sergeant "James J. Haley "1123 W. 65th "Seattle, Washington
"Dear Sir:
"It has been called to our attention that, through incorrect information furnished us, the following `true-false' statements in the recent examinations for Police Sergeant and Detective Sergeant were improperly scored:
"`In a misdemeanor, a police officer may break open a door of a building if refused admittance while in pursuit of a criminal.' — scored as false; should be credited only when marked true.
"`In criminal actions a physician can be excused from testifying against his patient on the grounds of confidential communication.' — scored as false; should be credited only when marked true.
"`Arrests for misdemeanors cannot be made at night, except when the offense is committed in the presence of the arresting officer.' — scored as true; should be credited only when markedfalse. *Page 540
"`M offers H, a witness in a court case, $10 to influence him in his testimony. M is guilty of bribery.' — scored as true; should be credited only when marked false.
"Also, the following `multiple-choice' question was improperly scored:
"`Which of the following streets does not bound the Civil Auditorium? 1 — Fourth Avenue North; 2 — Harrison St.; 3 — Republican St.; 4 — Mercer St.' — No. 2 was credited as the only correct answer; but either No. 2 or No. 3 should be credited as correct.
"Also, the following questions are found to be controversially worded and should be eliminated from consideration:
"`Persons arrested for counterfeiting may be tried by either the state or federal government.' (true-false)
"`The failure of a father to supply necessary food and clothing to a minor child is a gross misdemeanor.' (true-false)
"`Jones entered a building with the intention of taking certain valuable property which he believed was there, but found the building empty: 1 — the crime of burglary is complete; 2 — as he took nothing, he is innocent of any crime; 3 — as he used no force, he has done no harm; 4 — this is merely a case of trespass.' (multiple-choice)
"The Civil Service Commission, at its meeting of August 2nd, August 5th and August 23rd, 1939, ordered that the scoring of the first five questions listed above be revised to accord with correction information, and that the last three listed be eliminated from consideration for these examinations.
"As the result of such revision, your final average is 86.103, relative standing No. 17.
"Yours truly, "SEATTLE CIVIL SERVICE COMMISSION "Roy A. Palm "Chief Examiner Secretary."
If this procedure is tolerated, it will frustrate the fundamental purpose of the merit system: the elimination of favoritism and political considerations in the selection of municipal employees. Such a procedure *Page 541 was denounced in State ex rel. Hearty v. Mullin, 198 Wash. 99,87 P.2d 280, where the court said:
"The principal question is whether the commission, after the first grading and after the identity of the applicants had become known, had the right to subsequently regrade on a different basis and change the relative standing of Hearty, as well as others. ...
"The first and last provisions of this rule definitely show that the purpose was to have the examination conducted in such a manner that the identification of the applicants should not be known until their grades had been established, except where later parts of the examination required such identification. . . .
"The purpose of the rule, as well as the principle underlying civil service, is to make free and open the opportunity to enter the public service in accordance with certain tests as to qualification, and not to leave anything `to whim or caprice of the appointive power.' The commission, in this case, regrading the papers after they had approved, as the court found, the first grading and the identification of the applicants had become known, violated the provisions of the rule, above mentioned, as well as the principle of civil service. If the commission can do legally what it did in this case, civil service examinations would be subject to the whim or caprice of the commission."
That the commission, in this instance, changed the standard or basis upon which the papers were graded after the identity of the aspirants was known, seems to me too apparent for argument. I think not only the method of grading the papers was erroneous, but also the entire examination was so palpably unfair that it should be set aside and another one ordered.
I dissent.
MAIN, J., concurs with BLAKE, J. *Page 542