ment being exercised in the first instance by administrative officers, we think the presumption should obtain that public officers, have done their duty, and that the burden is thrown upon whoever assails it to prove affirmatively that the action of the public officers has been illegal. Therefore, if the case presented is fairly debatable, and one as to which, in, the honest exercise of judgment, men may reasonably differ, we think the court should not reverse the determination of the public officers. But the difference of judgment must be, not as to the advantage or disadvantage of the civil service scheme generally, because the Constitution has settled that question, not only as to whether the particular appointment can properly be considered as subject to a competitive examination, and it must always be borne in mind that under the Constitution competitive examination is the rule, and "pass" examination and exemption from examination the exceptions.

Fifth. We are of opinion that the cases of none of these appointees fall within the debatable class, but were plainly susceptible of being filled by competitive examination. As to one of them it is proper we should make some qualification; that is, the position of warrant clerk to the comptroller. The duty of this officer is to present warrants to the comptroller for signature. It is possible that even a careful officer might be betrayed, by the fault of his clerk, into signing an improper warrant or a warrant for an improper amount. If there were a clerk whose principal duty it was to compare the warrants with the vouchers and guard the comptroller against falling, either by accident or the fraud of his subordinates, into error, we are not prepared to say that the comptroller might not properly have the discretion as to whom he should appoint; but it appears in this case that the comptroller has appointed a large number of warrant clerks. He cannot, by dividing a duty that is confidential, and possibly exempted from examination, among many clerks, obtain exemption for all and thus evade compliance with the Constitution and the Civil Service Statutes.

Judgment affirmed, without costs.

SIMEON B. CHITTENDEN ET AL., Respondents, v. FREDERICK W. WURSTER, AS MAYOR OF THE CITY OF BROOKLYN ET AL., Appellants.

1. CIVIL SERVICE CLAUSE OF THE CONSTITUTION.-The provision of the Constitution (Art. 5 $9) that appointments and promotions in the civil service of the state, and of all the civil divi-ions thereof, including cities and villages, shall be made according to merit and fitness," is mandatory; but the execution of the subsequent provision: "to be ascertained, so far as practicable, by examinatious, which so far as practicable, shall be competitive," is, as to the machinery necessary for the conducting of competitive examinations, dependent upon

the statute.

2. COUNTIES, TOWNS, AND VILLAGES -In the absence of legislation providing the machinery for conducting competitive examinations for the civil service of counties, towns and villages, the provision of the Constitution in reference to such examinations for those civil divisions of the state remains ineffectual.

3. STATE AND CITIES-CONSTITUTIONALITY OF CIVIL SERVICE LAW.-The existing Civil Service Law L. 1883, ch. 354, as amended), provides the necessary machinery for carrying into effect the provisions of the Constitution in the case of the state and cities, and, with the excep tion of certain provisions relating to veterans, appears to be in harmony with the Constitution.

4. PRACTICABILITY OF COMPETITIVE EXAMINATIONS.-The provisions of the Constitution and of the statute, requiring competitive examinations so far as practicable, contemplated the existence of positions for which a competitive examination is not practicable.

5. DETERMINATON OF PRACTICABILITY OF EXAMINATION.-In order to determine whether the examination of a candidate for an office is practicable, the conrt must first ascertain the nature and character of the duties of the position; and when that has been done, the question of exemption becomes one of law.

6 EXEMPTION OF CONFIDENTIAL POSITIONS. Within the meaning and intention of the Consti tution and of the statute, competitive examination is not practicable for positions of a confidential relation to the appointing officer.

7. DEFINITION OF CONFIDENTIAL POSITION.-Where the duties of the position are not merely clerical, and are such as especially devolve upon the head of the office, which by reason of his numerous duties, he is compelled to delegate to others, and the performance of which requires skill, judgment, trust and confidence, and involves the responsibility of the officer or the municipality which he represents, the position should be treated as confidential. 8. CONFIDENTIAL POSITION NOT NECESSARILY SECRET.-Positions included in the confidential class are not limited to those which are strictly secret.

9. STATUTORY EXEMPTIONS FROM EXAMINATIONS.-The provisions of the statute, exempting from examination officers elected by the people and the subordinates of any such officer for whom he is financially responsible, the heads of city departments, applicants for employment under the educational department of a city, and any subordinate officers having custody of public moneys or securities for the safekeeping of which the head of an office is under bonds. furnish a satisfactory rule as to the positions for which, in addition to confidential positions, competitive examination is not practicable.

10. CITIES EFFECT OF EXEMPT CLASSIFICATION BY MAYOR.-A classification of positions exempt from civil service examination Schedule A), made by the mayor of a city, presumably in the conscientious discharge of his duty under the statute, although it may be voidable is not void; and until judicially determined to be erroneous it is a protection to the subordinate beads of departments and employees acting thereunder, and, until the proper classification has been made, appointments made thereunder must be deemed valid. 11. REMEDY FOR IMPROPER CLASSIFICATION BY MAYOR If the mayor of a city refuses to do his duty in making classifications of civil service positions, or if he does it improperly, he may be compelled by direct proceeding, as by mandamus, or perhaps in some cases of certiorari, instituted by any resident citizen, to do it in accordance with the requirements of the Constitution and of the statute; bit a taxpayer's action to restrain the payment of salaries earned by appointees is not the appropriate remedy.

Chittenden v. Wurster, 14 App. Div. 483, reversed. (Argued March 23, 1897; decided April 20, 1897.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 26, 1897, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinions.

The revised Constitution,

Joseph A. Burr for appellants. which went into effect on the 1st day of January, 1895, has not repealed, modified or altered the provisions of the statute relative to Civil Service appointments in the State of New York (save only those portions of the statute which are in the nature of exceptions to the general provisions thereof, such as those respecting veterans). (L. 1883, ch. 354; L. 1884, ch. 410; Koch v. Mayor, etc., 152 N. Y. 72; Rathbone v. Wirth, 150 N. Y. 470; Cooley's Const. Lim. [6th ed.] 69, 75; In re Sweeley, 12 Misc. Rep. 174; 146 N. Y. 401; In re Keymer, 89 Hun, 292; 148 N. Y. 219; People ex rel. v Roberts, 13 Misc. Rep. 448; 91 Hun, 102; 148 N. Y. 360; People ex rel. v. Civil Service Board, 5 App. Div. 164; People ex rel. v. Tobey, 8 App. Div. 468.) In making the necessary classification of positions, the determination to which class a position shall be assigned and which method of appointment shall be adopted is both by the Constitution and the statute expressly made an administrative and not a judicial question. (L. 1883, ch. 354, § 6; Atty. Gen. v. Northampton, 143 Mass. 589.) The duty devolved upon the Governor to classify the positions in the State service, and the discretion conferred upon him to détermine as to the manner in which appointments to such positions shall be made, and the like duty devolved and discretion conferred upon the mayors of cities as to the municipal service, is not only not revoked by the Constitution, but is necessarily continued until some other method is prescribed by law. (Wiggin v. Mayor, etc., 9 Paige, 16; United States v. New Orleans, 31 Fed. Rep. 537; State v. Bonner, Busbee Law [N. C.], 257.) The power of determination conferred upon the Governor to classify

positions in the State Civil Service, and upon the mayors of cities to classify positions in the city service, if exercised honestly and in good faith, may not be reviewed at all by any court. (Cooley's Const. Lim. 52, 54; People ex rel. v. Rice, 135 N. Y. 473; In re Baird v. Supervisors, 138 N. Y. 95; 142 N. Y. 523; People ex rel. v. Commissioners, 149 N. Y. 26.) While a determination. arbitrarily and dishonestly exercised may be reviewed, it can only be reviewed in a proceeding brought directly for that purpose. either to correct an existing classification or to compel a new one. (Mills v. City of Brooklyn, 32 N. Y. 495.) The Civil Service provision of the Constitution, so far as the classification of positions and the method of making appointments is concerned, is not selfexecuting, but can only become operative through legislative provisions. (Cooley's Const. Lim. [6th ed.] 99; U. S. v. Reese, 92 U. S. 214; Const. N. Y. art. 8, § 14; People ex rel. v. Fallon, 4 App. Div. 82; In re Keymer, 148 N. Y. 219; Const. N. Y. art 3, § 18.) In any event and under any circumstances an action in the form in which this action is brought will not lie. (L. 1894, ch. 681; Talcott v. City of Buffalo, 125 N. Y. 280; Zeigler v. Chapin, 126 N. Y. 342; Adamson v. N. El. R. R. Co., 89 Hun, 261; Terrell v. Strong, 14 Misc. Rep. 258; Rathbone v. Wirth, 150 N. Y. 498; Curtin v. Barton, 139 N. Y. 505; Const. N. Y. art. 3 § 4; Rogers v. Com. Council of Buffalo, 123 N. Y. 173; Peck v. Belknap, 130 N. Y. 394.) The complaint should have been dismissed as to the defendants Newland and Perry, upon the ground that the proof did not conform to the allegations of the complain. (Southwick v. F. Nat. Bank, 84 N. Y. 420; Butler v. Farley, 17 N. Y. S. R. 109; Code Civ. Pro. § 723; Rome Exchange Bank v. Eames, 4 Abb. Ct. App. Dec. 83; Day v. Town of New Lots, 107 N. Y. 148; Kley v. Healy, 9 Misc. Rep. 93.) If the court had the power in this form of action to determine whether error was made by the several mayors in determining that it was not practicable to fill the positions under consideration after competitive examination, the evidence wholly fails to show that either of said officials erred in their judgment in assigning them to the schedule to which appointment might be made without examination. 1888, ch. 583; People ex rel. v. Palmer, 152 N. Y. 217.)

(L.

Henry Yonge, J. Warren Greene and Edward M. Shepard for respondents. The payment of salaries to officers appointed in violation of the Civil Service Laws may be restrained by taxpayers' suits. (Dolan v. Mayor, etc., 68 N. Y. 274; Rogers v. Com. Council of Buffalo, 123 N. Y. 173; Peck v. Belknap, 130 N. Y. 394; L. 1894, ch. 681; Demarest v. Mayor, etc. 74 N. Y. 161; 1 Dillon on Mun. Corp. 93; Code Civ. Pro. § 1925; Adamson v. N. El. R. R. Co., 89 Hun, 261; Talcott v. City of Buffalo, 125 N. Y. 280; Ziegler v. Chapin, 126 N. Y. 342.) If the Constitution meant what it said, that appointments must, where practicable, be made by competition, then these appointments were unconstitutional. (Rogers v. Com. Council of Buffalo, 123 N. Y. 177; People ex rel. v. Roberts, 148 N. Y. 366; Sturgis v. Spofford, 45 N. Y. 446; Rathbone v. Wirth, 150 N. Y. 468; People ex rel. v. Draper, 15 N. Y. 544; In re Keymer, 148 N. Y. 219; People ex rel. v. Wilson, 146 N. Y. 401.) The constitutional amendment operated as a limitation upon the power of appointment in whosoever hands the power of appointment should be reposed It was a limitation upon the legislative power itself, and a fortiori, upon the power of a mayor, who is himself a mere creature of legislative power, whose office can be abolished at legislative will. (Demarest v. Mayor, etc., 74 N. Y. 161; 1 Dillon on Mun. Corp. 93; People ex rel. v. Fallon, 4 App. Div. 87; Green v. Biddle, 8 Wheat. 1; Curran v. Arkansas, 15 How. [U. S.] 304; State v. Bank, 1 S. C. [N. S.] 63; Bowdoinham v. Richmond, 6 Me. 112; Barings v. Dabney, 19 Wall. 1; Davis v. Gray, 16 Wall. 203.) The constitutional amendment made no exception in case of confidential positions. There was no such limitation in the act of 1883; if there had been, it would have been abolished by the Constitution. (People ex rel. v. Palmer, 152 N. Y. 217.) The existence of a duty on the part of a public officer to ascertain a fact required by law before performing an official duty does not imply the power to determine the fact. (Miller v. Amsterdam, 149 N. Y. 288; Sharp v. Speir, 4 Hill, 76.) No evidence was admitted that did not fairly bear on the question of practicability. There is no proof of practicability superior to the proof of what