We respectfully dissent because we believe that Civil Service Law § 58 (4) (c), as written, violates article V, § 6 of the New York Constitution. Whether an examination is practicable is usually determined by the examining authority subject to judicial review (see, e.g., Matter of Berkowitz v New York State Civ. Serv. Commn., 150 AD2d 978, lv denied 74 NY2d 610). Likewise, the State Legislature has the right to make that determination, which is also subject to judicial scrutiny (see, e.g., Sanger v Greene, 269 NY 33, rearg denied 269 NY 613; Birkeland v State of New York, 98 AD2d 395, affd 64 NY2d 663). Neither of those procedures was followed in this instance.
Civil Service Law § 58 (4) (c) does not state that the Legislature determined that testing was impracticable. The statute as written, therefore, is facially unconstitutional because, absent a finding of impracticability, it violates the mandate of New York Constitution, article V, § 6 that, unless impracticable, promotion must be by competitive examination. There is nothing in the record to support the majority’s conclusion that the Legislature found that promotion by competitive examination was impracticable. Rather, the history of the legislation supports the conclusion that the motivating reason for its enactment was equality of compensation, not impracticability of examination. By using the word "appoint”, however, without a finding of impracticability of testing, the Legislature created a right to the job title without promotional examination and negated the constitutional mandate. That is the position taken by the Department of Civil Service in its letter to the Governor’s Counsel, wherein it stated:
*1028"We understand that the intent of this bill is to ensure that those serving as detectives receive the wages normally associated with such an assignment. However, the bill also provides that after eighteen months assignment as a detective, a police officer must be 'appointed’ to that title.
"We suspect that the drafters of this measure intended it to apply where service as a detective is an assignment. In situations where 'detective’ is a distinct title, tested for on a competitive basis, no individual can be appointed permanently unless he or she passes the required tests and becomes reachable on an eligible list, as required by Article V, Section 6 of the State Constitution.” (Bill Jacket, L 1990, ch 29.)
Indeed, implicit in the letter of the Department of Civil Service is that, where "detective” is a distinctive title, it has been and presently is being tested for by the Department on a competitive basis. Thus, testing for that title cannot be considered impracticable and appointment based on any alternative to testing is unconstitutional. Because the order appealed from orders "appointment” of petitioner to a new job title of investigator (detective), it is in error.
The majority’s conclusion that a police officer’s capacity and fitness to be a detective can better be assessed by on-the-job performance as opposed to competitive examination would apply equally to all civil service positions and, if accepted, would negate the necessity of taking examinations, thereby destroying the civil service system. Thus, we would reverse and dismiss the petition. (Appeal from Judgment of Supreme Court, Monroe County, Calvaruso, J.—Article 78.) Present— Green, J. P., Balio, Lawton, Fallon and Davis, JJ.