23 day of December thereafter. On the 8th day of April, 1897, he petitioned the court for a peremptory writ of mandamus directed to the defendant commanding him to reinstate him to the position of special agent, or for such other and further relief as may be just and proper. In his petition he alleged that he had the capacity required for the performance of the duties of a special agent, and that he was efficient in the discharge of his duties as such during his probationary term. The defendant opposed his application for the writ upon an affidavit filed by him asserting his inefficiency and incapacity for the discharge of the duty of the position. Upon the hearing of the motion before the court, the relator asked that an alternative writ issue in order that the question of his capacity and efficiency might be determined by the court. The court refused to issue an alternative writ and denied his motion for a mandamus, and this order was affirmed in the Appellate Division. Chapter 821 of the Laws of 1896 provides that: § 1. In every public department and upon all public works of the State of New York honorably discharged Union # * soldiers, sailors and marines shall be preferred for appointment, employment and promotion; provided they possess the * * * business capacity necessary to discharge the duties of the position involved. And no person holding a position by appointment or employment in the State of New York honorably discharged soldier, sailor or marine, # who is an 營 shall be removed from such position or employment except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made, and with the right to such employee or appointee to a review by writ of certiorari; a refusal to allow the preference provided for in this act to any honorably discharged Union soldier, sailor or marine, or a reduction of his compensation intended to bring about a resignation, shall be deemed a misdemeanor, and such honorably discharged soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for damages, and also a remedy by mandamus for righting the wrong. The burden of proving incompetency or misconduct shall be upon the party alleging the same. But the provisions of this act shall not be construed to apply to the position of private secretary or deputy of an official or department or to any other person holding a strictly confidential position." It may be that the provisions of this act casting the burden of proving incompetency upon an officer charged with the duty of making appointments to the civil service is unwise, and that the clause making him guilty of a misdemeanor, and liable personally in damages in case he fails to allow the preference provided for, is harsh and unreasonable. Possibly these provisions may operate to deter officers from exercising their judgment against applicants in considering their business capacity, and that, in consequence, incompetent persons may receive appointments to positions in the civil service, thereby prejudicing the public interests; but as to the wisdom and effect of these provisions we have nothing to do, and if they are unwise, harsh and unreasonable the remedy is with the Legislature. As long as they remain a part of our statutes it is the duty of the courts to faithfully execute them. The statute, as we understand it, as applied to the case under consideration, casts the burden of showing that the relator did not possess the business capacity necessary to discharge the duties of special agent upon the defendant. He appointed the relator for the probationary term of three months, provided by the statute and the rules promulgated by the governor. The commissioner thus had an opportunity to ascertain his competency and business capacity. At the end of the probationary term the relator, being an honorably discharged Union soldier, was entitled to his permanent appointment, provided he possessed the business capacity necessary to properly discharge the duties of the position. The commissioner, in the first instance, was charged with the duty of determining that question of fact. He found against the relator, but his finding is not conclusive. Under the provisions of the act the relator is given the right to have the correctness of the commissioner's determination ascertained by mandamus. This remedy he invoked, and it appears to us that, upon the papers presented, he was entitled to an alternative writ, to the end that the question raised with reference to his competency and business capacity might be tried and determined by the court in the usual way. It is now contended that the provisions of the Liquor Tax Law (Chap. 112, sec. 10, Laws of 1896) provide that the special agents "shall be deemed the confidential agents of the State commissioner," and that the provisions of the act which we have above considered do not apply to any "person holding a strictly confidential position." It will be observed that in the Liquor Tax Law the word "strictly" is omitted, but assuming that it was the intention of the Legislature to make the position of special agents a strictly confidential position, the question then arises as to whether it is in conflict with the civil service clause of the Constitution, which provides that "appointments and promotions in the civil service of the State shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations, which, so far as prac ticable, shall be competitive." In considering these provisions of the Constitution in the case of Chittenden v. Wurster (152 N. Y. 345), we held that competitive examinations were not practicable for positions which were strictly confidential to the appointing officer, and in that case and in the Crummey Case (152 N. Y. 217) we discussed to some extent the question as to what constituted a confidential position. Of course, great weight should be given to the determination of the Legislature as to the character of the position. It, however, cannot override the Constitution and by an enactment make a position confidential which, under a fair and reasonable construction of the Constitution, is not confidential. Whether a position is confidential or not depends largely upon the character of the duties of the position. We think, however, that we are relieved from the consideration of this question at this time for the reason that the commissioner of excise in this case has made no claim that the position was confidential or that he refused to appoint the relator for that reason. In his answer to the petition for the writ of mandamus he alleged two grounds, and two only for the opposing of the allowance of the writ. These grounds were, first, incompetency, and second, laches in instituting the proceedings. Those were the only questions brought to the attention of the court and are the only questions which we think can properly be here considered. The order of the Appellate Division and that of the Special Term should be reversed and an alternative writ issued, and for that purpose the proceeding should be remitted to the Special Term, with costs to abide the final award of costs. BARTLETT, J. (dissenting). I agree with Judge HAIGHT for reversal but place my vote on the grounds stated in his opinion and the additional ground based on the civil service provisions of the Constitution (Art. V, §9). The fundamental law commands that appointments and promotions in the civil service shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive. It then further commands that the honorably discharged soldiers and sailors in the late civil war, who are citizens and residents of this State, shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made. In my opinion, when the name of a veteran is duly reached on the eligible list, he is entitled, under the previsions of the Constitution and the law enacted to carry them out, to an absolute appointment, and thereafter can be removed only for incompetency or misconduct. (Ch. 821, Laws 1896.) The provisions for a probationary appointment of three months (Laws 1883, ch. 354, § 2, and rule 12 of the Civil Service Board) are contrary to the letter and spirit of the Constitution, and consequently void. The rule enacted by legislative authority, and as amended in 1896, provides: "At the end of such term, if the conduct, capacity and fitness of the probationer are satisfactory to the appointing officer, his retention in the service shall be equivalent to his absolute appointment; but if his conduct, capacity and fitness be not satisfactory, he may be discharged at any time." If this rule and the legislation upon which it is based can stand, it may be well asked what has become of that protection which the Constitution is supposed to afford the veteran after his merit and fitness have been ascertained by a competitive examination and his name entered on the eligible list? It comes to this, that he receives his absolute appointment only if his conduct, capacity and fitness are satisfactory to the appointing officer. To my mind, this amounts to a practical repeal of the constitutional provisions to which reference has been made. If the act of 1883 and the rule framed in pursuance of it stand, the Legislature can repeal the act of 1896 and all other acts standing in the way, and appointments will depend upon the whim, the caprice, of an appointing officer if he is disposed to abuse the power with which he is vested. It is no answer to say that the law presumes an officer will perform his duty properly. The civil service policy of the State, which was finally placed in the Constitution, seeks to do away with this abuse of power and patronage. I am not content to rest my vote solely on the act of 1896. MARTIN, J., reads for affirmance. PARKER, Ch. J., GRAY and VANN, JJ., concur. HAIGHT, J., concurs so far as it relates to the civil service provisions of the Constitution and statutes, but disgents as to the portion relating to the Veterans' Act upon the grounds specified in his opinion. HAIGHT and BARTLETT, JJ., read for reversal, and O'BRIEN, J., concurs. Order affirmed, with costs. Fourth Appellate Department, December, 1898. Reported. 35 App. Div. 227. HENRY H. LYMAN, as State Commissioner of Excise, Respondent, v. FRANK MATTY, Appellant. Intoxicating liquor-Place of trial of actions brought under section 42 of the Liquor Tax Law. In an action brought under section 42 of the Liquor Tax Law (Chap. 112, Laws of 1896, as amended by chap. 312, Laws of 1897), the defendant, when the venue is laid in a county adjoining that of his residence, can not move to have the place of trial changed to the county in which he resides; if the action is not brought in a county adjoining the county of his residence, he may move to have the place of trial changed to some one of the adjoining counties, but not to his own county. APPEAL by the defendant, Frank Matty, from an order of the Supreme Court, made at the Oswego Special Term and entered in the office of the clerk of the county of Oswego on the 10th day of January, 1898, denying his motion to change the place of trial of the action from Oswego county to Onondaga county. John W. Hogan, for the appellant. S. B. Mead, for the respondent. FOLLETT, J.: Lyman v. Gramercy Club (28 App. Div. 30) is not in point. That action was brought against sureties to recover for the breach of a bond given and prosecuted pursuant to section 18 of the Liquor Tax Law, and the only reference in the act to |