By article 12 of the Tax ■ Law (Consol. Laws, chap. 60 [Laws of 1909, ch. -62], § 210,.as amd. by Laws of 1910, chap. 38; Id. §§ 211, 212) it is provided that upon every sale or transfer of shares of stock in any domestic or foreign corporation there shall be paid to. the State a tax of two cents upon each $100 of Lace value or fraction thereof. -This tax is paid by affixing to the instrument of transfer, or in case there be no instrument of transfer, upon the books of the party making the transfer, adhesive stamps which are purchased from the Comptroller. For the making of such sale or transfer without the affixing of said stamps the party is deemed guilty of a misdemeanor and is punished by a fine of not less than $500 or more than $1,000, or imprisonment for not more than six months,. Or both such fine and imprisonment. By section 216 (as amd. by Laws of 1910, chap. 453) it is provided that the State Comptroller may inquire into and ascertain whether the tax imposed by the provisions of this article has been paid, and for this purpose he is given authority to examine certain books and papers of any person, firm or corporation whose memoranda of transfers shall be made accessible to him for that purpose, and a failure to disclose the books and memoranda showing such transfers by any person or corporation is made a misdemeanor, subjecting the. party to-heavy fine or imprisonment or both. In 1911 this law was amended so as to prohibit the sale of stamps hy private dealers, or by any one except an authorized agent of the Comptroller.
For the purpose, of making the examinations necessary to ascertain whether the stamps have been duly affixed and the tax paid, the Comptroller has in his office fourteen employees, called examiners of stock transfers. In 1905, when these examiners were first appointed at the request of the State *664Comptroller, they were classified by the Civil Service Commission as in the exempt class of the civil service. They so- continued in the exempt class until July I, 1910, when upon the recommendation of the Comptroller they were pnt in the competitive class. In February, 1911, the present Comptroller requested the Commission, to place the position of examiner of transfers of stock again in the exempt class, and in March of. that year the Commission passed a resolution restoring such position to the exempt class in the civil service, and it is this resolution, which is required to he rescinded by the order for the mandamus issued by. the Special Term from which this appeal is taken.
The requirement of the Constitution in section 9 of article 5 thereof is to the effect that appointments 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 practicable shall be competitive.” By this provision of the Constitution it is provided that laws should he enacted to provide for the enforcement thereof. In the enforcement of this fundamental law, to somebody must be assigned the duty-of determining in what cases it is practicable to ascertain the qualifications for the office by competitive examination. That duty is primarily placed upon the executive branch .of the government, and by statute has devolved upon the Civil Service Commission. ' It is true that its determination cannot be arbitrarily made, but is subject to review by the courts. There is no doubt, however, as to the rule by which such review should be determined. It is clearly stated in the opinion' of Chief Judge CtjlleN in People ex rel. Schau v. McWilliams (185 N. Y. 100) in this language: “It seems to me that the cases cited indicate the true extent to which the court should assume to supervise the action of the civil service commission. If the' classification of the commission clearly ■ violates the Constitution or the statute, mandamus should issue to correct the classification. If the action of the commission is not palpably illegal the court should not intervene.” In the same case the chief judge states:.“Where the position is one, as to the proper mode of filling which there is a fair and reasonable ground for difference .of opinion among *665intelligent and conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification.” If hy the determination of this Commission this office had been put in the competitive class of the civil service the able opinion of the learned judge at Special Term (Matter of Merritt v. Kraft, 71 Misc. Rep. 492) would furnish strong reason for approving such classification. It does not necessarily follow, however, when the Commission has determined that the ascertainment of the qualifications for this office hy competitive examination is not practicable, that its determination is “ palpably illegal.” For five years the position was classified as exempt, with the assumed approval of the different Comptrollers who were in office during that time. The request by Comptroller Williams that the offices he classified as competitive presents only his judgment as differing from those of the prior Comptrollers under whose incumbency the office was deemed properly exempt. These examiners. are in fact secret • service men. Their sole duties are of a detective nature, involving not only thorough knowledge of bookkeeping, hut a general commercial experience, which will enable them to. detect the many devices by which this law may be sought to be evaded.' Not only extensive business experience, but a keen acumen is a necessary qualification for the successful performance of duties which are unusually exacting. The competitive examinations provided for hy the Civil Service Law (Consol. ’Laws, chap. 7; Laws of 1909, chap. 15) are from the nature of the case made public by statute. To whatever conclusion the court would come, if invested with the primary duty of determining this question, in my judgment, in view of the exacting nature of the duties of the office and of the fact that for five years under different Comptrollers the position was deemed properly placed in the exempt class, it cannot be said that “intelligent and honest men might not differ” upon the question, or that the classification of the ■ Civil Service Commission was “palpably illegal.” In People ex rel. Sweet v. Lyman (157 N. Y. 368) it was held that a special agent in the Excise Department was as matter of law to be placed in the exempt class. The principal duties of these agents were detec*666tive duties, to ascertain whether the law had been violated, • • i) and while they were' given some further responsibilities which J apparently have not been given to these examiners, -nevérthé- y, \ less the decision throws light upon the question as to whether . \u.| it can be now held ¿s matter of law that the placing of these .\|j examiners in the exempt class,- with duties nearly analogous,..b u is a palpably erroneous classification by the. Commission. I -m recommend, therefore, that the order be reversed and motion denied, hut without costs. ...
All concurred, except‘Houghton, J., dissenting in opinion, in which Kellogg, J., concurred. .