(dissenting). It is true that the preferred appointments of veterans with a disability of less than 10%, termed a “ zero per cent disability ”, was improper. But that does not mean that a court is warranted in removing them upon the application of petitioners who sue, not as “ citizens and taxpayers ”, but as persons on an eligible list that had expired long before this proceeding was instituted. Indeed, this court held precisely that — that removal was not warranted — some years ago in a case indistinguishable from the present one. (See Matter of Phillips v. Kaplan, 266 N. Y. 514, affg. 242 App. Div. 815.) In Matter of Phillips v. Kaplan, the Civil Service Commission certified a number of disabled veterans of the First World War as being entitled to preferences, and such veterans, who stood lower on the eligible list than petitioners, were promoted between 1930. and 1932. Some time later, and yet prior to the expiration of the list, petitioners sought an order revoking the appointments upon the ground that the appointees had not been entitled to a preference. While the proceeding was pending, this court decided, in Matter of Potts v. Kaplan (264 N. Y. 110), that the preference had been illegally granted. Belying upon that decision, Special Term directed that the preferences be revoked *263that the appointments of the incumbents be cancelled and that petitioners be appointed in their place. The Appellate Division reversed and dismissed the petition; noting that the eligible list had expired since the commencement of the proceeding, it held not only that petitioners should not be appointed but that the previous certifications and appointments should not be revoked, and this court unanimously affirmed that disposition.
As I have indicated, petitioners do not attack the erroneous appointments as citizens or taxpayers. They seek a voiding of those 1947 appointments, not to regularize the civil service, but solely as individuals claiming that they themselves have a right to the positions thus rendered vacant. Phrased a bit differently, petitioners desire the discharge of incumbents only as an incident to procuring the appointments for themselves. Since the “ appointment of any of the petitioners after the expiration of the eligible list was a legal impossibility ” (opinion of Loughran, Ch. J., p. 261), the court goes beyond both the prayer for relief and the necessities of the case when it sanctions removal of the incumbents at the hands of such petitioners.
However, even if we were to regard the suit as one brought by citizens and taxpayers, I would still favor its dismissal.
In certifying and appointing veterans with a “ zero per cent disability ” rating, the Civil Service Commission and the State Tax Commission acted in utmost good faith and in reliance upon an honest and not unreasonable construction of the preference provisions of Constitution and statute. Until we decided the question in Matter of Carey v. Morton (297 N. Y. 361) — and by a four to three decision — there was a widespread belief that a “ zero per cent disability ” was a “ disability ” within the meaning of the Constitution. (See, e.g., Matter of Barry v. Chapman, 189 Misc. 928, revd. on stipulation by App. Div., 3d Dept., Oct. 22, 1948.) We should not ignore the difficulties that confronted administrative agencies in applying the veterans’ preference laws, and we should certainly not sanction nullification of action which those administrative agencies took prior to our decision in the Carey case (supra, 297 N. Y. 361). A course of administrative interpretation, honestly arrived at, culminating in numerous appointments long before our ruling, of necessity, has consequences. Those consequences *264‘ ‘ cannot justly be ignored. The past cannot always be erased by a new judicial declaration.” (See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374, per Hughes, Ch. J.)
We vindicate the mandate of the Constitution and we meet the necessities of the present case if we permit appointments previously made, concededly numerous and widespread, to remain in statu quo, the 0% veteran incumbents to be eliminated — because of their inability to establish a right to the prior preference — in the orderly course of events, upon future reclassification, promotion, elimination of positions or layoffs. Neither the public interest nor petitioners’ rights will suffer if the court’s pronouncement as to the impropriety of according a super-preference to 0% veterans, be declaratory in nature and prospective in application. (See Matter of Cornehl v. Kern, 285 N. Y. 777, affg. 260 App. Div. 35, 40; People ex rel. Joyce v. Schirmer, 277 N. Y. 676, affg. 253 App. Div. 845; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Phillips v. Kaplan, supra, 266 N. Y. 514, affg. 242 App. Div. 815; cf. Matter of Sunshine v. Marsh, 290 N. Y. 775, affg. 265 App Div. 927.) In the Andresen case (supra, 277 N. Y. 271), for instance, where appointments were made to the state police in entire disregard of the Constitution and of civil service requirements, this court, after holding that future appointments must be made “ from lists prepared after a competitive examination ” went on explicity to say that “ This decision does not affect or disturb the officers in the positions they are now holding ” (p. 282); in the Cornehl case (supra, 285 N. Y. 777, affg. 260 App. Div. 35), the court, while holding that appointments from city-wide promotion lists were violative of the Civil Service Law, refused to annul certifications and appointments theretofore made, even though petitioners who had brought the proceeding were then eligible for appointment; and, in the Joyce case (supra, 277 N. Y. 676), the court refused to oust incumbents even though it appeared that the list from which they had been appointed was illegal because part of the examination had been conducted by unauthorized persons.
The necessity of procuring compliance with the Constitution’s civil service requirements and of assuring regularity of certification and of appointment cannot be questioned. However, relief *265in the nature of mandamus is an extraordinary remedy, to be granted only to vindicate a clear legal right of petitioners. In my view, the present, with its most unusual circumstances, is not such a case. Here, neither petitioners — who were on an expired list — nor any others have any right whatsoever to appointment in place of the incumbents. Here, the 1947 appointments were made in good faith, in reliance upon an honest and not unreasonable interpretation, long before any court held it incorrect. Any fear that retention of incumbents may undermine the civil service system or point a way to circumvent its requirements is less than tenuous. In point of fact, the present decision, that incumbents must be discharged — “ unless ” their removal is so “ extensive ” as to “ disrupt and disorganize ” the staffs on which they serve (opinion of Loughran, Ch. J., p. 262) — at the instance of any one who chooses to institute a proceeding, no matter how many years after the appointments were made, and no matter for what sort of noncompliance with some civil service requirement (for every violation in the appointment process contravenes the Civil Service Article of the Constitution) endangers job security and tenure, both exceedingly vital elements in our civil service system. In a word, in a case such as the one before us, to jeopardize innumerable positions of long standing, to sanction the discharge of incumbents who for years have undoubtedly planned their lives upon civil service permanence and tenure, impresses me as wrong in principle and bad on balance.
I would affirm the order of the Appellate Division.
Lewis, Conway, Desmond, Dye and Froessel, JJ., concur with Loughran, Ch. J.; Fuld, J., dissents in opinion.
Orders reversed, etc.