Opinion by
Mr. Justice Jones,John Fedorka, a police officer of the Borough of Sayre (Borough), resigned. Thereafter, on March 24, 1961, at the request of the borough council, the civil service commission offered a written examination to applicants for the position of police officer. Upon such examination the following applicants received the following grades: Andrew Bobick, Jr. (Bobick), 74; Emil Kozemko (Kozemko), 82; Richard Sheridan, 72%. After adjustment of these scores to meet the *590provisions of the veterans’ preference Act of 1945,1 Bobick, a veteran,2 received a grade of 84, the highest grade of the three applicants.
The commission certified the names of Bobick, Kozemko and Sheridan to the borough council as eligible persons qualified for appointment and the police committee of the borough council, after interviewing the three applicants, recommended Bobick for appointment.
The borough council, on April 17, 1961, appointed Kozemko as police officer but, because the legality of such appointment was questioned, such appointment was made subject to the approval of the court. On May 1, 1961, the matter was reconsidered and the council reaffirmed the appointment of Kozemko.
Bobick filed an action in mandamus3 in the Court of Common Pleas of Bradford County averring that Kozemko’s appointment was illegal and that, as the only qualified person under the 1945 Act, supra, Bobick should have been appointed. The prayer of the complaint in mandamus is that the members of the borough council be commanded to appoint Bobick as a police officer of the Borough. The Borough and members of council did not deny the maternal allegations of the complaint.
Certain undisputed facts appear of record: (a) that, in view of the 1945 Act, Bobick’s grade was the highest on the civil service examinations; (b) that, in view of the 1945 Act, Bobick was the only applicant entitled to appointment to the police force; (c) that the appointment of Kozemko, rather than Bobick, violated the 1945 Act; (d) that, at the time of Kozemko’s ap*591pointment and until the time of hearing, the vacancy on the police force had not been filled.
In view of the concessions of record, we need not consider the mandatory requirements of the 1945 Act. Two things are clear: (1) the appointment of Kozemko is contrary to law and (2) if any person is to be appointed, Bobiek must be appointed.
The sole issue is whether a court, under the circumstances, has the power to direct the Borough to appoint Bobiek.
The power to appoint a police officer in a borough arises under the authority of The Borough Code :4 “Borough councils may, subject to the civil service provisions of this act, . . ., appoint . . . one or more suitable persons, citizens of this Commonwealth, as borough policemen, . . . .”
In Bragdon v. Ries, 346 Pa. 10, 12, 29 A. 2d 40, it was argued that the Act of 19415 which established a civil service system for borough police had the effect of amending the power of appointment of police officers given to the borough council under The Borough Code. We held that “the power of council to appoint [police officers] . . . remain[ed] but with the prescribed limitations that appointment can be made only from a list furnished by the civil service commission.......the Act of 1941 does not deprive council of the power to appoint . . ., but merely prescribes and limits the conditions under which these powers may be exercised . . . .”
It is settled beyond question (a) that mandamus, an extraordinary writ, is not granted as a matter of right but as a matter within the sound discretion of the court (Lhormer v. Bowen, 410 Pa. 508, 513, 514, 188 A. 2d 747; Carver v. Upper Darby Civil Service *592Commission, 399 Pa. 498, 501, 502, 161 A. 2d 374) and (b) mandamus should issue only “when the complaining person has a clear, legal right in the premises and the defendant has a clear, legal duty which he has refused to perform” (Zaccagnini v. Vandergrift Borough, 395 Pa. 285, 289, 150 A. 2d 538).
What Bobick seeks is a court order to direct the borough council to appoint Bobick as a police officer and argues, in effect, that, when the borough council did appoint Kozemko, it “lost its power of appointment” and, since Bobick is the only person qualified for appointment, Bobick must be appointed.
- The legislature has seen fit to place the power of appointment of policemen in a borough in the council-manic body subject only to the limitation that the person or persons to be appointed must be qualified under the civil service statute and that the eouncilmanic body grant to any such qualified person or persons any preference to which such person or persons is or are entitled under the Veterans’ Preference Act, supra. It is-within the discretion of the borough council to determine if and when police officers are to be appointed and, if such police are to be appointed, which person or persons is or are to be appointed subject to the statutorily imposed limitations on such power.
It is not for the court to determine whether any police officer or officers are to be appointed and the fact that the borough council did attempt to appoint Kozemko does not deprive borough council of its power to determine whether the vacancy in the police force must now be filled. Such a determination is not a judicial but a eouncilmanic function statutorily imposed. What Bobick now seeks is beyond the judicial power to grant.
If the borough council, in the exercise of its discretion, determines to appoint a police officer then, under the instant factual situation, the borough coun*593cil must appoint Bobiek. We cannot, however, direct and command the borough council to make an appointment; such would amount to an improper usurpation of a power imposed by the legislature on the council-manic body of the Borough.
Judgment affirmed.
Act of May 22, 1945, P. L. 837, §3, 51 P.S. §492.3.
Neither Kozemko or Sheridan were entitled to the benefits of the 1945 Act.
The briefs term this an amicable mandamus action.
Act of May 4, 1927, P. t. 519, §1125, as amended, 53 P.S. §46125.
Act of June 5, 1941, P. L. 84, §1, 53 P.S. §53251.