(dissenting). The relator has applied for a writ of mandamus to compel the civil service commission to certify his compensation as an assistant deputy sheriff of Kings county under chapter 705, p. 1749, Laws 1901. The ground of respondent’s refusal is that the office of assistant deputy sheriff of Kings county is in the competitive class under the civil service; and, inasmuch as the appointment was not made from those certified by said commission, the said appointment was void, and the relator is not entitled to compensation.
By chapter 705, p. 1749, Laws 1901, the sheriff of Kings county was authorized to appoint eight deputy sheriffs and eight assistant deputy sheriffs. It is provided that each deputy sheriff shall receive a salary of $2,200 a year, and each of the assistant deputies a salary of $1,000. By chapter 370, p. 795, Laws 1899, providing for the civil service in the state, certain officers are made exempt as matter of law, and among those officers is “the deputy of a principal executive officer authorized by law to act generally for and in the place of their principals.” As to the officers not made exempt by statute, they are in the competitive class, and can only be appointed from lists made by the civil service commission, unless the civil service commission shall itself place them in the exempt class, which it has the right to do.
It seems to be conceded that the office of deputy sheriff in Kings county is within the statute an exempt office. The question here for determination is whether the office of assistant deputy sheriff is within the provision of the statute an exempt office, or whether it is subject to the provision of that law, leaving it with the commissioners to determine whether it may be in the exempt or in the competitive class. The civil service commissioners have determined that the office is in *554the competitive class, and their determination has been sustained by the Special Term.
The duties of the office of assistant deputy-sheriff are nowhere defined in the statute; nor, indeed, are the duties of the office of deputy sheriff. The duties of a deputy sheriff have been in a measure settled by long usage, so that they may well be said to be prescribed by the common law. See Gibson v. National Park Bank, 98 N. Y. 96. But this statute has provided that, as to the deputies and assistant deputies, the sheriff “shall prescribe and regulate their respective duties.” Section 6. If such regulation must be by a code of rules, then it would clearly be incumbent upon the sheriff to show that for such assistants he had prescribed rules authorizing them to act generally for him. But such requirement is neither within the practical working of the statute nor within its' letter. The deputy may be assigned to a certain class of work, or as cases arise a deputy may be directed to attend to them. While so engaged in respect of that work, whether deputy or assistant deputy, he has the discretionary power of the sheriff, and may act generally for him.
But the use of the word "assistant” in the classification made is claimed to make them inferior officers, and therefore within the right of the civil service commission to classify them in the competitive class. The right of the Legislature to give to the commission the power to classify the assistant deputies is undoubted. So has the Legislature the power to allow the commission to classify the deputies. There is here no question of power.- It is simply a question of construction of the statute. Neither a man’s honesty nor his fidelity can be tested and certified by a commission, however learned. And, where the duties of a subordinate involve both discretion and fidelity, and for the faithful performance of his duties the superior is personally responsible, the court will require the superior to select that subordinate from a certified list only upon the mandate of a statute given in clear and unmistakable language. It is contended that the sheriff may require of his .subordinate security for the faithful performance of his office. But this only half answers the argument. The sheriff may be made liable far in excess of any sum which might reasonably be anticipated, and for which security might reasonably be required. Further, it will be noted that the sheriff may prescribe precisely the same powers to the deputies.or assistant deputies. If the commission has the power to -classify the assistant deputies, it has the same power to classify the deputies. There is nothing in the statute to indicate an intent to create an inferior office for the purpose of authorizing the civil service commission to restrict its incumbency. The deputies are assistants of the sheriff. The classification of deputy and assistant deputy is not made in reference to their powers, but simply in reference to their salaries. A certain class of less important work may be assigned to cheaper men; and for this reason a class of assistant deputies, was created, to whom this work could be assigned. The assistant deputies, therefore, as to the matters intrusted to them have the full powers of the sheriff, and, *555as well as the deputies, are within the exempt class under the civil service statute.
The Special Term order should be reversed, and a writ of mandamus granted.
Order affirmed, with costs. All concur, except SMITH, P. J., and SEWELL, J., who dissent.