which was introduced, (e) amending the civil service law by giving to municipal commissions in cities of the first and second class the power to conduct investigations. These bills encountered opposition from unexpected sources. Much time and effort were spent without avail in the endeavor to shape them into a form satisfactory to interested persons, but finally, late in the session, it was deemed inexpedient to attempt to pass the bills and they were abandoned.

A bill amending the civil service law by extending to veteran volunteer firemen the constitutional preference given to veterans of the late civil war for appointment in the civil service, passed both houses of the legislature and was in the hands of the Governor at the close of the session. The Commission called attention to the unconstitutionality (Matter of Keymer, 148 N. Y. 219) of any statute extending the exception to the rule of competition incorporated in the civil service clause of the Constitution (Art. V, § 9). The bill did not receive executive approval.

Litigations

A noteworthy decision of the Court of Appeals in the Kings county cases, reversing the orders of the trial court and the Appellate Division adverse to the Commission, has restored to the Commission its quasi judicial functions and has re-established the rational and just principle that its competitive classifications. must be respected by heads of departments and their appointees so long as such classifications remain unchanged. The full text of the opinion is herewith set forth:

Werner, J. The relators in these seven proceedings are appointees in the offices of the sheriff and register, respectively, of the county of Kings. The positions which they respectively hold and their respective duties therein are, briefly stated, as follows: Michael J. Sims is a keeper of the jail, being one of the

persons having charge of the prisoners confined therein, and is also a deputy sheriff appointed under section 182 of the County Law. Alexander J. Neal is an assistant deputy sheriff who receives papers to be executed by the sheriff and acts for him in performing such duties; he is also a deputy sheriff appointed under the County Law and acts sometimes as a keeper of the jail. William H. Wills is the driver of a prison van; he has charge of prisoners while they are in transit between the jail and the sev eral courts where they are to be tried, and between the several courts and the institutions to which they are sentenced; he is also a deputy sheriff under the County Law. John M. Harding is an accountant in the office of the sheriff, having charge of the accounts of the office and sometimes acts as chief clerk in receiving process; he is also a deputy sheriff under the County Law.

Felix Letts is a mailing clerk in the office of the register, having charge of the official seal and of legal documents before they are recorded; he affixes the seal to instruments after they have been compared and hands them over to the register for signature; he also has charge of postage stamps and of the mailing of documents to persons to whom they are to be returned. Gustave Nathan is a messenger in the register's office; he deposits money in bank, collects outstanding accounts and produces documents in court in response to subpoenas duces tecum. Frederick E. Besserer is a comparer in the register's office; he compares the records with the original instruments left for recording, and the register, relying upon his certificate as to their correctness, affixed his official signature to the certificate of record attached to such instruments.

Prior to January 1, 1902, these relators had been appointed to their respective positions and at that time chapters 705 and 706 of the Laws of 1901, making the offices of sheriff and register of the county of Kings salaried offices, had gone into effect.* Previous to the enactment of these statutes these two officers had received their compensation in the form of fees collectible in their respective offices and out of which they paid their employees, who were at that time not subject to civil service examinations.

In the months of January and February, 1902, the defendants, the State Civil Service Commission, passed resolutions the effect of which was to place the positions held by the relators in the competitive class of the civil service of the State. Thereafter these proceedings were commenced by the relators to have their positions placed in the exempt class of the civil service. The

So in the opinion. In fact, relators were appointed on or subsequent to January 1, 1902.

So in the opinion. In fact, these positions were classified as competitive prior to the appointment of relators.

moving papers allege that the Civil Service Commission had notified both the sheriff and register that the appointment of the relators without a civil service examination was illegal and that those officials would be responsible for the relators' salaries. It is further alleged "that this action will coerce" said officials "to remove" relators "unless the action of said Civil Service Commission as aforesaid may be speedily set aside."

The Special Term granted writs of peremptory mandamus directing the State Civil Service Commission to forthwith strike from the competitive class the respective positions held by the relators and to place such positions in the exempt class. The orders granting the writs were affirmed by the Appellate Division, and from the orders of affirmance appeals have been taken to this court.

Several interesting and important questions are presented by these appeals, but the only one we shall now discuss is whether the relators have invoked the proper remedy.

*

Article 5, section 9 of the Constitution provides that "appointments and promotions in the civil service of the state and of all the civil divisions thereof 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," and that "laws shall be made to provide for the enforcement of this section." Under this constitutional mandate the Civil Service Law (chap. 370, L. 1899) was enacted, and by its provisions it is the duty of the Civil Service Commission to "make rules for the classification of the offices, places and employments in the classified service of the state, and thereafter, from time to time, rules for the classification of the offices, places and employments in such other civil divisions thereof, except cities, as after due inquiry by the Commission shall be found practicable, and for appointments and promotions therein and examinations therefor, not inconsistent with the Constitution and the provisions of this act, and shall amend the same from time to time." (Section 9.) The positions here in question are in the classified service.

The act further provides: "The offices and positions in the classified service of the state or of any city or civil division thereof for which civil service rules shall be established pursuant to this act shall be arranged in four classes, to be designated as the exempt class, the competitive class, the non-competitive class and, in cities, the labor class." (Section 11.) Section 12 designates certain positions which shall be in the exempt class.

Section 13 provides: "The competitive class shall include all positions for which it is practicable to determine the merit and

fitness of applicants by competitive examination, and shall include all positions now existing, or hereafter created, of whatever functions, designations or compensation, in each and every branch of the classified service, except such positions as are in the exempt class, the non-competitive class or the labor class."

It will be observed that under the Civil Service Law as it now stands it is the positive duty of the State Civil Service Commission to divide the classified civil service of the state and its civil divisions, except cities, into four classes. It is also to be noted. that, subject to the general provisions of the Constitution and the Civil Service Law, the Civil Service Commissioners are to determine into which particular classes the positions in the classified service shall be placed.

In pursuance of the authority thus conferred upon them the Civil Service Commissioners have determined that an examination is practicable to test the merit and fitness of applicants for the positions held by the relators and they have placed such positions in the competitive class. The courts below have decided that these positions belong in the exempt class and have issued writs of mandamus peremptorily directing the defendants to place them in that class. Thus we have the question squarely presented whether mandamus is the proper remedy.

In determining this question we must be guided by the general rules applicable to proceedings in mandamus, for the Civil Service Law of 1899 makes provision for the issuance of this writ in only two cases. The first arises under section 19, where an "officer, clerk or other person entitled to be certified by Commission to the comptroller, treasurer or other fiscal or disbursing officer of the state or any city or civil division thereof, as having been appointed or employed in pursuance of law and of the rules made in pursuance of law, and refused such certificate." In such a case mandamus may issue " to compel such Commission to issue such certificate." The second arises under section 21, by virtue of which honorably discharged soldiers, sailors, marines and firemen may invoke the writ in cases of unlawful removal from their positions. These are the only cases in which the statute (chap. 370, L. 1899) provides in express terms for the issuance of writs of mandamus.

The general rule governing proceedings in mandamus is well stated in People ex rel. Harris v. Commissioners (149 N. Y. 26). There the relator applied to the commissioners of the land office for restitution of a sum of money which had been expended in the purchase of land from the state the title to which it was claimed had failed. The Revised Statutes, defining the "general powers and duties of the commissioners of the land office," provided:

"Whenever the title of the people of this state to lands granted under its statutory authority shall fail, and a legal claim for compensation on account of such failure shall be preferred by any person entitled thereto, it shall be the duty of the commissioners to direct the payment of the original purchase moneys which have been paid to the state by such person, with interest at the rate of six per cent." (1 R. S. 198, sec. 6.) The relator in that proceeding sought by mandamus to compel the commissioners to refund the purchase money. Upon appeal to this court it was held that mandamus was not the proper remedy. Judge Vann, writing for the court, said: "The primary object of the writ of mandamus is to compel action. It neither creates nor confers power to act, but only commands the exercise of powers already existing, when it is the duty of the person or body proceeded against to act without its agency. While it may require the performance of a purely ministerial duty in a particular manner, its command is never given to compel the discharge of a duty involving the exercise of judgment or discretion in any specified way, for that would substitute the judgment or discretion of the court issuing the writ for that of the person or persons against whom the writ was issued. In such cases the sole function is to set in motion without directing the manner of per formance. It is a universal rule that in the discharge

of all duties involving the exercise of official judgment or discretion the officer or tribunal must be left free to act and cannot be controlled in a particular direction. When the law requires a public officer to do a specified act in a specified way, upon a conceded state of facts, without regard to his own judgment as to the propriety of the act and with no power to exercise discretion, the duty is ministerial in character, and performance may be compelled by mandamus if there is no other remedy. When, however, the law requires a judicial determination to be made, such as the decision of a question of fact or the exercise of judgment whether the act should be done or not, the duty is regarded as judicial and mandamus will not lie to compel performance." To the same effect are People ex rel. Francis v. Common Council of Troy (78 N. Y. 33); People ex rel. Myers v. Barnes (114 Id. 317); People ex rel. Grannis v. Roberts (163 Id. 70).

The duty which the Civil Service Commissioners were called upon to perform in determining into which class of the civil service the positions occupied by the relators herein belonged was quasi judicial in its character and involved the exercise of judg ment. The statute simply directed them to classify. It did not attempt to specify the class into which the positions held by the relators should be placed. The duty was imposed upon the Com