I concur in the result. The only appointment "which the relator received was a probationary one of three months. As that expired by its own limitation, he was not removed from office, and, therefore, can not invoke chapter 821, Laws of 1896, which secures" him from arbitrary removal during the term for which he was appointed. All he can complain of is *358that he was not at the end of the probationary appointment absolutely appointed. Civil service rule 38 says that, to entitle him to such absolute appointment, his conduct and capacity “shall have been found satisfactory.” The relator has not shown that his conduct and capacity have been found satisfactory, but is confronted with the defendant’s finding the other way. The relator, therefore, has not shown his clear legal right to an absolute appointment. But I think it was for the appointing power to pass upon his conduct and capacity during the probationary period, for the reason that if the defendant had found them satisfactory, it was his duty to appoint him absolutely, and this power for the purpose of absolute appointment implies the power to find either way. Such finding was in its nature a judicial act, and can not be reviewed upon mandamus.