While I concur in the practical result which will follow the adoption of the opinion written by the learned chief judge, I desire to record my dissent from the principal reason assigned in support of his conclusion. Although I agree with him as to the limitations upon our jurisdiction to review the determination of boards of civil service commissioners in the classification of positions in the civil service, I take issue with him as to the remedy which should be invoked when such a review is sought. The question upon which we differ, stated in its most concrete form, is whether mandamus or certiorari is the proper writ in such a *Page 102 case as the one at bar. The learned chief judge asserts that mandamus is the appropriate remedy, while I maintain, and this court has decided in People ex rel. Sims v. Collier (175 N.Y. 196), that certiorari is the legal and logical channel of review. I base this view upon the following considerations:
1. There is one, and only one, reference to the writ of mandamus in the Civil Service Law, and that is found in section 21 which relates to the unauthorized removal from appointive positions of honorably discharged soldiers, sailors and marines, and certain designated volunteer firemen. This mention of the writ in these specific instances is significant of the legislative intent. If the writ of mandamus had been intended for use in the review of all determinations of boards of civil service commissioners, why was it prescribed only in the cases set forth in section 21 of the statute? Expressio unius estexclusio alterius.
2. The office of the writ of mandamus is to compel specified action only in the exercise of purely ministerial functions. When the performance of an official act involves discretion and judgment, the courts, although clothed with power to command action, have no right to decide that it shall be pursued in a particular way or for the accomplishment of a stated result. Unqualified and unhampered action is all that may be commanded in such a case (People ex rel. Harris v. Commissioners, 149 N.Y. 26;People ex rel. Francis v. Common Council of Troy, 78 N.Y. 33;People ex rel. Myers v. Barnes, 114 N.Y. 317; People exrel. Grannis v. Roberts, 163 N.Y. 70.) There are but few instances in which proceedings instituted by writ of mandamus would be broad enough in their scope to review the action of boards of civil service commissioners, and if proceedings instituted by writ of certiorari are to be denied in such cases, it is equivalent to saying that there is no right of review whatever.
3. The writ of certiorari furnishes the appropriate remedy in such a proceeding. The article of the Code of Civil Procedure entitled "The writ of certiorari, to review the determination of an inferior tribunal" (Ch. 16, tit. 2, art. 7) expressly *Page 103 includes a public "body or officer" as among the inferior tribunals whose determinations may be thus reviewed, and section 2140 of that article enumerates the various subjects comprehended within the limits of judicial review. By that section the courts are given power, among other things, to decide (1) "Whether the body or officer had jurisdiction of the subject-matter of the determination under review; (2) whether the authority, conferred upon the body or officer, in relation to that subject-matter, has been pursued in the mode required by law, in order to authorize it or him to make the determination; and (3) whether, in making the determination, any rule of law, affecting the rights of the parties thereto, has been violated, to the prejudice of the relator." There are two other subdivisions of this section which give the courts power to decide still other questions, but they are not germane to this discussion. I have quoted the foregoing subdivisions for the purpose of showing that upon a review of certiorari proceedings this court has the same power as in mandamus proceedings, to limit and control the questions that it will decide in reviewing the determination of a public officer or body. The learned chief judge says: "If the position is clearly one properly subject to competitive examination, the commissioners may be compelled (by mandamus) to so classify it." I argue that this cannot be done by mandamus without violating the principle that the writ cannot issue to compel a particular kind of action for a stated result in a case involving the exercise of discretion and judgment; and that certiorari is the precise remedy to fit such a case. We could have no better illustration than the proceeding at bar. Upon facts which are undisputed, the legal question is presented whether, under the statute, the board of civil service commissioners acted within its jurisdiction as to the subject-matter; whether the authority conferred was pursued in the manner required by law; and whether, in making its determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator. In deciding these questions against *Page 104 a relator, his right to a further review may properly be denied, upon the ground that the courts have no power to review the determination of a public board or officer, when it or he has proceeded within its or his jurisdiction, and in substantial compliance with the prescribed forms of law. That, as I understand it, is precisely what must be decided at the threshold of every review of a mandamus proceeding, and it is just what courts are daily called upon to decide in appeals from determinations of police commissioners, of commissioners to assess damages or compensation in condemnation proceedings, or for the opening of streets, and other kindred proceedings in which the decision of the tribunal of first instance is conclusive unless tainted with legal error.
I agree that there is nothing sacred or inflexible in the meaning of the terms "judicial" or "quasi-judicial" functions as applied to proceedings of this character. In their generally understood and accepted meaning they do not ascribe to lay public officers or bodies the judicial functions of courts of justice, but for want of more accurate terms they simply distinguish acts which are presumed to be the product of judgment based upon evidence, either oral or visual or both, as distinguished from those purely ministerial duties which can only be properly performed in one particular way.
The argument that the assumption by this court of jurisdiction in such proceedings as this will add greatly to the present judicial burdens is cogent but not conclusive. The underlying and controlling question is whether the right of review in such a proceeding as this is one which can properly be exercised within the same limitations as inhere in the review of mandamus proceedings. I think not only that it can be, but that there is no other appropriate proceeding by which the same result can be accomplished. Whenever it appears in a given case that the act sought to be reviewed presents no legal or judicial question, the writ of certiorari should be denied (People ex rel. Kennedy v.Brady, 166 N.Y. 44; People ex rel. North v.Featherstonhaugh, 172 N.Y. 112), but when, as in People exrel. Steward v. Board *Page 105 of R.R. Comrs. (160 N.Y. 202), the act or decision partakes of the judicial quality, and the question arises as to jurisdiction or legality of procedure, the writ will lie. (People ex rel.Copcutt v. Board of Health, 140 N.Y. 1; People ex rel.Trustees of Jamaica v. Board of Supervisors, Queens Co.,131 N.Y. 468; People ex rel. Second Avenue R.R. Co. v. Board ofPark Commissioners, 97 N.Y. 37.)
Whether the act of a public body or officer falls within one or the other of these rules depends upon the facts of each given case and can usually be decided without much difficulty. In the case at bar the duty of classification imposed upon the board of civil service commissioners was one involving the exercise of judgment and discretion. It was exercised, however, by virtue of jurisdiction expressly conferred by the statute, and in substantial conformity to the then existing statutory regulations. For these reasons I think the writ should have been denied. But I entertain the view that if it had been made to appear that the board had acted without jurisdiction, or in contravention of the directions of the statute, a question of law would have been presented that would be properly reviewable in certiorari proceedings, and that could not be adequately dealt with in mandamus proceedings. Quite apart from the foregoing considerations, the writ herein should not have been issued because it was not granted and served within four calendar months after the determination of the board of civil service commissioners. (Code Civ. Pro. sec. 2125.)
For these reasons I concur in the conclusion reached by Chief Judge CULLEN without giving my assent to the reasoning by which it is supported.
O'BRIEN, HAIGHT, VANN and WILLARD BARTLETT, JJ., concur with CULLEN, Ch. J.; WERNER, J., reads dissenting opinion; HISCOCK, J., not sitting.
Order reversed, etc. *Page 106