(dissenting):
I do not think Chief Judge Cullen in his opinion in People ex rel. Schau v. McWilliams (185 N. Y. 92) intended to lay down the inflexible-rule'that the courts could not interfere , in . any classification by the Civil Service Commission unless .its.. act was palpably illegal as that term , is ordinarily understood. - All that was decided in that case was that the court haid made ■ a mistake in People ex rel. Sims v. Collier (175 N. Y. 196) .in - holding that certiorari was the .proper remedy for review of. classification. . The language employed in -the opinion was by way of justification for permitting a review through a writ of mandamus.
The Constitution (Art. 5, § 9) provides that appointments in the civil service of thé State shall' be made according to merit, and fitness, to be ascertained, so far as practicable, by examinations which, if practicable, shall be competitive. -Whether. fitness can be ascertained by a competitive examination- or whether the. position is or is not a confidential one involves the exercise of judgment and discretion- on the part of the Commissioners.
■It certainly is a part of. the duty of courts to ascertain in judicial proceedings whether or'not the constitutional law is violated, and it would seem on review of classification by the Civil Service Commission that it is proper for the. court ■ to ascertain whether such discretion has been abused" or whether such judgment has been erroneously exercised, Of course, if the strict rules applicable to the writ of mandamus are to be *667applied, the courts by such a writ can correct only absolutely illegal acts; they cannot interfere with an abuse of discretion or an improper exercise of judgment. Unless the right of the court is to be enlarged beyond the ordinary scope of a mandamus I cannot imagine a practical instance in which a court can review.and correct an abuse of discretion or the exercise of' even a palpably erroneous judgment on the part of the Civil Service Commission in placing a position in the competitive or non-competitive class. If the courts have no power over this exercise of discretion and judgment there is nothing to prevent. the Civil Service Commission, each time its personnel is-changed from determining that all classes of all employees in all departments of the State should be exempt from competitive examination and thus nullifying not only the statute law but the Constitution of the State., Every employee of every department of the State has some duty to perform which with one excuse or another can. be called confidential or special for the purpose of making it more desirable that the new head of a department shall have the right to choose who shall perform’ the duty rather than that he should be compelled to keep in office the one he finds holding the position. If the discretion exercised by the Civil Service Commission be arbitrary its arbitrariness does not make it illegal, and if its judgment be wrongly given the fact that such judgment is wrong does not necessarily make it illegal. The Civil Service Commission may, therefore, whenever its personnel changes or at any other time, exercise the most arbitrary discretion and make the most erroneous decisions with respect to classification and still its acts will not be “palpably illegal.”
If its acts can be reviewed by mandamus only when palpably illegal, the practical outcome will be that no act of classification by the Commission, however arbitrary or however wrong, .can be corrected by the courts, and if the Civil Service Commission chooses to do so it can make the Civil Service Law a mere farce.
■ Assuming, as I do, that the rule is that courts may review the erroneous exercise of discretion and judgment of the Commission in classification under a writ of mandamus, 1 see no justification for the reclassification which the Commission has *668toade.. An examiner of stock transfers in the Comptroller’s office is in no sense a detective or a secret service agent and cannot be made such. The State Comptroller is authorized to inquire into and ascertain whether the tax imposed by the provisions of law has been paid, and in order to ascertain this fact he is given power to examine certain books and papers of any person, firm or corporation. He cannot do this personally and is given power to appoint examiners. The examiner mnst necessarily have some knowledge and some sense, bnt his powers and his. duties are limited to the examination of books and papers for' the purpose of ascertaining whether the stamps have been affixed to the transfer of stock. He cannot force books to be produced which are refused and, therefore, he need not be necessarily strong of limb. It is no part of the Comptroller’s duty or of the examiner’s duty to shadow a broker. The law provides a remedy to compel the production of books and provides a means of punishing the crime of not affixing stamps to the transfer of stock, through either the Attorney-G-eneral’s office, or the local district attorney’s office. The Comptroller is not responsible for the non-collection of any tax and there is no justification for putting the examiners in the exempt class because of his personal responsibility. Nor is it any justification for the change that for a considerable-period these examiners were in the exempt class and were only recently put in the competitive class. If it is wise, as I assume it is, to put the very large proportion of the civil service list of the State in the competitive- class for the purpose of ensuring stable and efficient service and to prevent change for political reasons, I see not the slightest justification for transferring examiners of stock transfers from the competitive to the exempt class. Sugh a reclassification is entirely contrary to the spirit. of the Civil Service Law and if permitted to stand opens the door to its complete destruction.
I, therefore, vote for an affirmance of the order of the Special Term.
Kellogg, J., concurred.
Order reversed, without costs, and motion denied, without costs. .