In this proceeding the action of the Civil Service Commission in fixing minimum qualifications for admission to an examination to the position of unemployment insurance referee and in formulating rules in respect to the rating of applicants upon the examination is challenged as illegal and invalid. With much contained in the majority opinion I am in accord. To provide, as the Commission has done, that a relative weight of forty per cent only is to be given to the written examination while sixty per cent is given to experience and general qualification is in conflict, as the majority opinion points out, with the constitutional provision that an examination *Page 240 to determine merit and fitness so far as practicable shall be competitive. (Matter of Scahill v. Drzewucki, 269 N.Y. 343.) I am also in accord with the view that the requirement that attorneys and counselors at law admitted to the examination must be graduates from a recognized school of law is unreasonable. There is no rational basis for the distinction between attorneys who qualify for admission to the Bar in this State by presenting a certificate of graduation from a recognized law school and those who qualify themselves by other study under the rules of the Court of Appeals for admission of attorneys and counselors at law. No such single requirement for admission to the Bar as a law school graduation is imposed by the rules of this court, and I do not perceive how additional merit or fitness can depend on professional graduation as against an adequate substitute such as is provided in the Court of Appeals rules.
When, however, it comes to the qualifications with respect to experience I am in disagreement with the majority. Broad powers are granted to administrative boards. Action of such boards within the scope of the powers conferred upon them can only be invalidated when the action is arbitrary or unreasonable, palpably illegal. The Commission need not show the reasonableness of its determination. It is only where the administrative board errs as matter of law by arbitrary, capricious or unreasonable action that the courts may intervene. The qualifications of experience may be useful even if not indispensable in securing the type of professional man best fitted for the positions to be filled. The determination rests with the Commission, not with the courts. (People ex rel. Moriarty v. Creelman, 206 N.Y. 570;People ex rel. Schau v. McWilliams, 185 N.Y. 92; Matter ofGrade Crossings [N.Y.C.R.R. Co.], 255 N.Y. 320; Matter ofNiagara Falls Power Co. v. Water P. C. Comm., 267 N.Y. 265.)
The order, in my opinion, should be modified so as to remit the matter to the Commission to make new regulations as to the weight to be given to the written examination *Page 241 and to experience in accordance with the constitutional provisions and as to minimum qualifications for attorney applicants in accordance with the foregoing.
LOUGHRAN, RIPPEY and CONWAY, JJ., concur with LEWIS, J.; SEARS, J., dissents in part in opinion, in which LEHMAN, Ch. J., and FINCH, J., concur.
Ordered accordingly.