(dissenting): Section 9 of article 5 of the Constitution of the State of ¡New 1 York provides:
“ Appointments and promotions in the civil service of the State and of all the civil divisions thereof, including cities and villages, 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 ; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States 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. Laws shall be made to provide for the enforcement of this section.”
The Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1900, chap. 195) provides for the appointment of civil service commissioners, regulates their powers and duties, and contains legislation for the purpose of carrying into effect the constitutional provision.
Section 1 of the Civil Service Law provides: “ ¡NV officer or officers having the power of appointment or employment shall select or appoint any person for appointment, employment, promotion or reinstatement except in accordance with the provisions of this act and the rules and regulations prescribed thereunder.”
The act further divides the civil service of the State and of each of its civil divisions and cities into the classified and unclassified . service. The unclassified service .comprises all elective offices; all offices filled by electron or appointment by the Legislature on joint ballot, and other positions named in the statute, which does not include the office in question here.
The classified service comprises all positions not included in the unclassified service. It further provides for the selection’ of municipal civil service commissioners, who are authorized to prescribe, *187amend and enforce rules for the classification of the offices, places and employments in the classified service in the city not inconsistent with the Constitution and the provisions of the Civil Service Law (§§ 8-10, as amd. by Laws of 1900, chap. 675, and Laws of 1902, chap. 270).
Section 11 of the act arranges the offices and positions in the classified service of the State or of any city or civil division thereof in four classes, namely, the exempt class, the competitive class, the non-competitive class and, in cities, the labor class.
By section 12 positions included in the exempt class are the deputies of principal executive officers authorized by law to act generally for and in place of their principals; one secretary of each officer, board and commission authorized by law to appoint a secretary; one clerk and one deputy clerk, if authorized by law, of each court;. one clerk of each elective judicial officer, and in the State servicé all unskilled laborers and such skilled laborers as are not included in the competitive class or the non-competive class; “and in addition thereto there may be included in the exempt class all other subordinate offices for the filling of which competitive or non-competitive examination may be found to be not practicable.” And it further provides: “ But no office or position shall be deemed to be in the exempt class unless it is specifically named in such class in the rules, and the reasons for each such exemption shall be stated separately in the annual reports of the commission. * .* • * Appointments to positions in the exempt class may be made without examination.”
Section 13 of the act defines the competitive class to 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.” The act further provides for promotion, transfer, reinstatement and reduction in the civil service.
Section 15 provides: “Vacancies in positions in the competitive class shall be filled, so far as practicable, by promotion from among persons holding positions in a lower, grade in the department, office *188or institution in which the vacancy exists. Promotions shall be based upon merit and competition and upon the superior qualifications of the person promoted as shown by his previous service, due weight being given to seniority. * "*
Section 16 provides: “ The non-competitive class shall include such positions as aré not in the exempt class or the labor class- and which it is impracticable to include in the competitive class. Appointments to positions in the non-competitive class shall be made after such nonrcompetitive examination as is prescribed by the rules.”
This furnishes a complete. scheme for the carrying out of the mandate of section 9 of article 5 of the Constitution, and if legisla^ tian was necessary for the enforcement of this constitutional provision, it has been provided by the act in question. .
The relator in order to obtain the relief asked for here must show that he is in the exempt class; for whether he be in the competitive- or the non-competitive class, he has not been subjected to such examination as is prescribed by the rules and regulations under the Civil Service Law; and at the outset we are met with the proposition that the action of the Civil Service Commissioners in placing the position of battalion chief in the competitive list was such an unwarrantable and unreasonable exercise of power that it should bé reviewed and reversed by this court.
- One of the functions of the Civil Service Commissioners under the act of the Legislature above quoted, is to prescribe, amend and enforce suitable rules and regulations for the purpose of carrying-into effect the provisions of the act and of the Constitution. This .necessarily implies the exercise of judgment and discretion, not arbitrary, perhaps, but it calls for the exercise of judgment based upon an investigation of the particular circumstances and a knowledge of particular situations. Whether the judgment exércised is-of a judicial nature or purely administrative for the purposes of this case is not of great moment. The Legislature has lodged with the Civil Service. Commissioners the duty in the first instance of prescribing necessary forms of procedure and the regulation of appointments to the civil service. In the exercise of that discretion they have undertaken to say that the position of battalion chief in the fire department of Buffalo is of such a náture that it should be in *189ilie competitive class, and in accordance therewith they have' pre-scribed roles and regulations to govern the appointment to that position in compliance with the requirement of section 9 of article 5 of the Constitution that all “ appointments and promotions in the civil .service * * "x" 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.” They have determined that this position shall be included in the competitive class. This may be based upon their knowledge of the situation which may be peculiar to the city- of Buffalo; it may be based upon their personal knowledge and experience in the conduct of the department, or it may be based upon their observation and information acquired from other sources ; but whatever forms the basis of their judgment, unless it appears to us that it is an unreasonable or unwarrantable exercise of power, we •ought not to interfere with it.
Now, what is the exact situation? We have the return of the State Civil Service Commissioners that in the city of New York a number of persons took the competitive examination for the position of battalion chief; that a number were placed upon the eligible list, and that nineteen appointments were m'ade from such list, and the persons so appointed are now in the service as such battalion chiefs. That in the city of Rochester a competitive examination was held for the position of battalion chief; that fifteen persons took the examination, ten passed and one appointment was made, and the person so appointed is serving as battalion chief in the city of Rochester; and that the duties of battalion chief ■ in the cities of Rochester and New York are identical with those in the city of Buffalo. This being a fact it would seem to conclusively destroy . the contention of the relator that it is impracticable to select Buffalo chiefs from a competitive list.
But it is said that because he may be called upon in the discharge of his duty to perform the duties of his chief he is, therefore, a deputy, and within the provision of section 12 of the Civil Service Law excluding the deputies of principal executive officers authorized by law to act generally for and in place of their principals.
The statute clearly applies to deputies known as such, 'and is limited to those who act generally for their chiefs; but a battalion chief is a separate and distinct position from that of a chief of a *190department, and the battalion chief does not act generally for and in place of his principal, but is only permitted to act within, the limits of his battalion within the territory- assigned to him, and is not acting generally for his chief, but is acting in the discharge of the duties of his. own position, acting for himself, and within the ^ lines defined by law for his action, and can act in no other way-He is not a deputy within the meaning of section 12 of the Civil Service Law. Nor is lie in such confidential relations to his chief as. to warrant his exemption. There is nothing to indicate any confidential position, nor do we think the question of the confidential character has any bearing upon this case. It is simply a question as to whether it is practicablé to obtain efficient battalion chiefs by competitive examination. As we. have seen, it has been found to-be practicable in other instances, and no reason is assigned why it is not practicable within the limits of the city of -Buffalo.
We'think the statute gave the power to the-commission to adopt the rules which they did adopt; that they were acting Within their jurisdiction, and we ought not to interfere with their determination,
" Another consideration is presented, namely, that, so far as practicable, promotions are to be made from the lower grades Of the service. It is quite apparent that the efficiency of the service will be greatly/advanced by-the promotion from one grade, to another. If the contention of the relator is to obtain this promotion becomes impossible, for promotions may be made entirely from outsiders, ánd no promotion may be expected as a matter of right, whatever the efficiency may be of the -incumbent of the lower grade-.. í Another objection is urged, namely, that the proceedings should have been commenced within four months from -the time -the'classification was made.
Section 2127 of the Code of Civil Procedure gives the remedy of certiorari to a person who may be aggrieved by the action -complained of; not to' any person who may at any time thereafter become aggrieved by reason of the existence Of the act. The remedy provided is somewhat summary in its nature and intended to provide a more efficient remedy than the slower action at law, but it is not intended that proceedings of this character, even where subject to review, should be held open indefinitely or that any person aggrieved at any time by reason of their existence might avail hi-rn*191self of the provisions of the law. The statute names not only the persons who may take! advantage of it, namely, the persons aggrieved, but limits even those who may be aggrieved to the enforcement of their remedy within four months after the doing of the act. (Code Civ. Proc. § 2125.) If the relator at the time the act complained of was accomplished had no interest in it, then he was not aggrieved by it arid could not by any subsequent action review the action of the tribunal. If he was aggrieved at that time he was bound to avail himself of the statutory remedy within the. limit. Having failed to do so he cannot now be heard.
The relator has been illegally appointed to the position. There is no claim that he has in any way complied with the rules and the civil service regulations, and this illegal act gave him no greater rights than he formerly had.
"We think the determination of the civil service commissioners was right, and the writ should be dismissed.
Williams, J., concurred.
Writ of certiorari sustained and the proceedings of the defendants in placing the position of battalion chief in the competitive class of the civil service reversed and annulled, with fifty dollars costs and disbursements, without prejudice, however, to the right to classify the said position in the non-competitive class.