
    The People of the State of New York ex rel. John M. Schau, Relator, v. Joseph L. Whittet and Others, as Civil Service Commissioners, and Constituting the Municipal Civil Service Commission of the City of Buffalo, and Others, Respondents.
    
      Civil service — the position of a battalion chief in the Buffalo fire department should be put in the non-competitive class subject to a qualifying examination—a person promoted and illegally appointed to the position may review by certiorari the propriety of its having been made competitive—■ when the four months prescribed by section 2125 of the Code of Civil Procedure begins to run.
    
    Tlie practical officers of the fire department of the city of Buffalo are, in order of rank, a chief and assistant chief engineer, battalion chiefs, captains and lieutenants. Each of the battalion chiefs has charge of one" of the districts • into which the city is divided, subject to the general supervision and authority of his superiors, and in the absence of the latter, each battalion chief is in supreme command and control of his particular district. He is expected to' be on duty constantly, except for special causes calling or permitting him to go elsewhere, and to attend all fires at stations assigned to him. Unless or until a superior assumes command he takes command at fires, directing the movements of officers and men. He inspects all properties and apparatus situated within his district, and is responsible for the proper condition thereof. He has authority to detail men for special duty at theatres and places of amusement, and to see that all laws and ordinances for protection from fires are enforced. He also has the right to order the arrest of a!ny person who disobeys his orders or who becomes'disorderly at a fire. He has the right, when in command at a fire-, to direct, in concurrence with the mayor or a fire commissioner, a building, to be tom down, and also to enter premises for the purpose of ascertaining whether there is any violation of ordinances for the prevention of fire. -In the absence of the chief engineer and assistant chief engineer, it is obligatory upon the board of fire commissioners to designate a battalion chief to act as the chief executive officer of the department.
    , Upon a writ of certiorari to review the action of the municipal civil service commission in placing the position of battalion chief in the competitive class, it was
    
      Held, that in view of the nature of the duties attached to the position and of the fact that the municipal civil service commission had, without success, attempted to prepare a satisfactory competitive . examination for the position, it was improper to place such position in the competitive class, and that the determination placing it in that class should, therefore, be set aside;
    That the qualifications of a candidate ought to be furnished by experience and that the appointing power should have the right of freely using the knowledge and judgment derived therefrom;
    That such position should be placed in the non-competitive class and be made subject to a qualifying examination;
    That a person who had been promoted from the rank of captain to the rank of battalion chief without a competitive examination, while the rule placing the position in the competitive class was in force, was entitled, notwithstanding that his appointment was invalid, to institute certiorari proceedings to review the correctness of the determination placing the position in the competitive class;
    That it appearing that the rule placing the position in the competitive class had been in force since 1899, and that in 1904 the municipal civil service commission applied for permission to amend the rule so as to place the position in the non-competitive class and that, after the State Civil Service Commission had declined to approve the amendment, the municipal civil service commission, on July 11, 1904, adopted an amended rule reaffirming the former rule, a person who was a candidate for appointment to the position of battalion chief on the last-mentioned date, had, under section 2125 of the Code of Civil Procedure, four months thereafter within which to institute a certiorari proceeding to review the correctness of the determination placing the position in the competitive class.
    Stover and Williams, JJ., dissented.
    Certiorari issued out of the Supreme Court and attested on. the 15th day of August, 1904, directed to Joseph L. Whittet and others, as civil service commissioners, and constituting the municipal civil service commission of the city of Buffalo, and others, commanding them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings had in connection with placing the position of battalion chief of the fire department of the city of Buffalo in Schedule B or the competitive class of the civil service. '
    
      
      Edward R. O'Malley, for the relator.
    ■. Charles B. Wheeler and Charles L. Feldman, for the respondents Joseph L. Whittet and others, constituting the civil service commission of the city of Buffalo, and another.
    
      John Cunneen, Attorney-General, and Sanford T., Church, Deputy Attorney-General, for the respondents Cuthbert W. Pound and others, constituting the Civil Service Commission of the State of New York.
   Hiscock, J.:

The relator desires to be a battalion chief in the fire department of the city of Buffalo. There stands between him and an authorized appointment a provisión of the civil service regulations applicable to the city of Buffalo that such appointment shall be subject to competitive examination, and he is seeking by this proceeding to have such provision reviewed and declared invalid.

While there are other questions somewhat difficult of solution and especially involving the- right of relator to maintain this proceeding, the important, substantial one presented to us is whether the decision of the municipal civil service commission of the city of Buffalo, approved by the Civil Service Commission of vthe State, to place the position of battalion chief in the competitive class of' the civil service, is reasonable and right, or' whether it is so unreasonable, impracticable and improper that wfe ought to - reverse it1 and eliminate this requirement. .

A statement somewhat at length of the material and undisputed facts appearing to us,by the various -returns will be needful in order to afford an intelligent appreciation of the reasons which lead us to the conclusion that it is our duty to follow the latter course;

The department of fire in Buffalo is under the general supervision and control of the board of fire. commissioners which consists of three members appointed by the mayor. The practical officers of the department in. order of rank are a chief and assistant chief engineer, battalion chiefs, captains and lieutenants. At the time involved there was provision for eight battalion chiefs, each one of whom had charge of one of the eight districts into which the city was divided for fire purposes, subject, of course, to the general supervision and authority of his superiors, and in their absence each was in supreme command and control of his particular district. He was expected to be upon duty constantly, except for special causes calling or permitting him to go elsewhere, and to attend all fires at stations assigned to him. 'Unless and until a superior assumed it, he took command at a fire, directing the movements of officers and men. Upon him was devolved the duty of inspection over all companies and apparatus situated within his district, and he was responsible for the proper condition thereof. The responsibility was placed upon Mm to not unnecessarily jeopardize the lives of men under his command, and of enforcing proper discipline upon their part, He had authority to detail men for special duty at theatres and places of amusements, and to see that all laws and ordinances were enforced for protection from fires. He also had the right to order the arrest of any person who should disobey his orders, or who should become disorderly at a fire. He even had the right,, if in command at a fire, in concurrence with the mayor or a fire commissioner, to direct a building to be torn down, and also the right to enter premises for the purpose of ascertaining whether there was any violation of ordinances for the prevention of fire. In the absence of the chief engineer and the assistant chief engineer it was obligatory upon the board of fire commissioners to designate a battalion chief to act as the chief executive officer of the department, with full authority in the premises. There were, of course, very many minor duties and powers incidental to these larger ones which it is not necessary to mention.

Under the provisions of the Constitution (Art. 5, § 9) the Civil Service Law (Laws of 1899, chap. 370, § 11) has- defined four classes of positions and appomiments in the classified service of cities, namely, the exempt class, the competitive class, the noncompetitive class and the labor class in cities. . Manifestly the last does not include the position in question. (Civil Service Law, § 17.) Heither, we think, does the first one. (Id. § 12.) The relator contends that the position of battalion chief is that of a deputy, and also that it carries confidential and fiduciary relations so that for-these reasons it should be exempt from examination. This view, however, does not commend itself to our judgment. '

The. statute (§ 13) declares thatthe competitive class shall include all positions- for which it is practicable to determine the merit and fitness- of applicants by competitive examination and shall include all positions now existing or hereafter created, of whatever functions, designations or compensation,-in each and every branch of the classified service, except such positions as are in the exempt class, the non-competitive Class or the labor class.” Section 16 of the statute provides as, follows: “ The non-competitive class shall include such positions as aré not in the exempt class or the labor class and.which it is impracticable to include in the competitive class. Appointments to positions in the non-competitive class shall be made after such non-competitive examination as is prescribed by the rules.”

. Since 1899 it has been.the rule, in Buffalo that the position of battalion chief should be filled only upon and after a competitive examination. The position of chief and' assistant chief engineer have been:-exempt from such examination, but all of the other positions in the active service heretofore referred to and in addition the positions of first grade and second grade firemen have been subject thereto. In addition there has been adequate provision for promotion through the service,, the chief being promoted from assistant or battalion chief; the assistant chief from battalion chiefs and battalion chiefs from captains and so on through the list.

While this position has thus been subject to competitive examination, it does not appear that any vacancy has arisen within the period mentioned which has been filled by this method. Therefore, in deciding whether competitive examination is feasible as a means of selecting appointees, we cannot have for our guidance the benefit of actual éxperience. We must test the. element of jjracticability which by the. statute is made an essential condition to the imposition of competitive examinations, by the character-of the position and of the duties and obligations attached thereto.

The more carefully we do this the more insistently is forced upon our mind the conviction that high marks upon any examination which could be devised would be an unsatisfactory and uncertain way by which to decide who would be the best man to occupy one of these places. . It would he conceded by any reasonable person at once," of course, that a man about to be called upon to discharge the duties which we have enumerated ought not to be selected by reason of superiority in an examination upon merely scholastic attainments. But if another course should be pursued upon the examination, and one should be formulated which followed as nearly as might be the practical lines of work to be performed, we apprehend that surpassing excellence even then would not be a safe test for appointment. There cannot be any doubt that a safe and efficient battalion chief must possess industry, energy, endurance; vigilance and bravery, the power of commanding and controlling men, a high degree of executive ability and rapid and cool judgment under exciting and disturbing conditions.

These qualifications were carefully and forcibly summarized in the communication addressed by the Buffalo civil service commission to the State Civil Service Commission favoring the withdrawal of this position from the competitive class, as follows: “ He (a battalion chief) must have the power to command and to enforce discipline. He must possess good judgment of human nature, coupled with tact, to enable him to deal with men under him. He must possess a sense of justice and fairness so as to gain and retain the respect and confidence of his subordinates. He must have initiative ability, resource in emergency, quick judgment, courage and energy.”

If we should assume that the wisdom of an examining board could devise a series of questions calculated, so far as mere questions could, to disclose who of several candidates possessed in the highest degi'ee these and other kindred and essential attributes of mind and body, we should still feel that such result was not very valuable. It at least would be an even chance that in the quiet of an examination room a candidate might excel in a disquisition upon the proper manner of discharging these duties, who, when subjected to the test of actual practice in the midst of disquieting surroundings and under the strain of oppressive responsibility would utterly fail. "We do not believe that it is possible by a theoretical examination to adequately or accurately weigh or measure the larger possession by one candidate than another of the mental and physical characteristics which are manifestly indispensable to a successful discharge of the duties and powers devolved upon this position. Such traits seem too intangible to be gouged in such a manner. A more reliable demonstration of their possession by a candidate . ought to be furnished by experience, and the right should be reserved' to the appointing power of freely utilizing the laiówledge and judgment derived1 from study of such experience.'

Our judgment upon this subject is confirmed and sustained by the attitude of the. officials of" the city of Buffalo. After this position was put in the competitive class the civil service commission of the city endeavored to formulate and frame an examination through and by which to provide for the necessary competition. The members were unable to do so, and no satisfactory series of questions'and form of examination has.yet been prepared. The board of fire commissioners, chief of the department, the mayor, and a majority of the civil service commission itself, reached the conclusion that the requirement for a competitive examination should be removed, and llave attempted to secure this result, but the State Civil Service Commission has opposed their efforts. There is no suggestion that the former officials are lacking in desire for a fair and practical system of civil service, or that they have any wish but for an efficient fire department which shall be governed by promotion and merit father than by any extraneous or unworthy considerations, and the' views and action of such men seem to us to be a somewhat impressive practical argument against existing conditions.

It is true that we are cited by the learned counsel to cases of cities where positions similar to this one in fire departments are said to be filled upon competitive éxaminations. We are, however, not supplied with information as to the details of these appointments or of the conditions under which'they were made or of the success or. failure which has attended this method of making them. Under such circumstances, while certainly they may properly be called to our attention as an argument, we cannot regard them as authorities compelling us to an adjudication which we do not regard as wise Upon the facts appearing before us in this case.

It is also urged that if this position is exempted from competitive examination, that of captain may also be. We are, of course, neither called upon nor permitted .to pass upon that question at this time. It is sufficient to say that our decision upon the position of battalion chief does not necessarily carry with it a similar decision upon some other position. It very often happens that, in a line of cases involving some similar features but in differing degrees, part will be upon one side and part upon the other of a dividing principle. There is no position in the fire department of Buffalo which does not involve in some degree the requirements of mental and physical capacity which may not easily be made the subject of a competitive examination. In some of these position's, however, such elements may be of such a percentage that a satisfactory competitive examination may be devised which would not be of practical application to another position involving in a much higher degree such characteristics and abilities.

We have discussed the advisability and practicability of a competitive examination as applied to this class of positions and have reached a conclusion adverse to it. We see no reason, however, why such a position should not be made subject to a rigid qualifying examination and all of the desirable and commendable qualifications ■of promotion in the service be preserved. Nothing can be a more effective inducement to valuable service in such a department than the guaranty of promotion based upon merit, and we perceive no cause why the position of battalion chief should not be made upon promotion and also be placed in the non-competitive class and made subject to a qualifying examination which might be an aid in determining the comparative fitness of rival candidates.

We next pass to the decision of the questions already briefly suggested, whether, first, the relator has an interest in the subject-matter of this controversy sufficient to enable him to maintain this proceeding, and whether, second, if he has, liis proceedings have •been instituted within the time fixed by the statute. While, perhaps, the answer to these questions is not entirely clear, we nevertheless think that it may be given in favor of relator.

The relator for several years prior to July 11, 1904, was a member of the Buffalo fire department, having been promoted at that date through various positions to the rank of captain. Upon éaid date he was appointed to the position of battalion chief. The municipal civil service commission of the city of Buffalo ‘have refused to certify his pay as such officer upon .the ground that he had not taken a competitive examination and had his name placed upon the eligible list for the position of battalion chief and he is unable to collect his pay. It is urged that all of these facts give him no such legal interest in the question whether a competitive examination should be required as entitles him to seek a revocation of such requirement, but that the appointing power is the only party injured by such requirement if invalid and is the only one to bring this proceeding to review the same.

"We agree with the contention made in behalf of defendants that the appointment of relator as battalion chief was invalid.' It was in violation of the rules and regulations prescribed by the civil service commissions and then in force. It was not in accordance with the conclusiono reached by us now that, while said position was not properly classified in the competitive class, it still may be properly put in the non-competitive class. For the purposes of this proceeding and the consideration of the immediate question under discussion we shall treat the appointment as entirely invalid and the position as vacant. Doing this we have a vacancy in the position of battalion chief which under the rules must be filled by the promotion of one of the captains of the department. Relator, treating his promotion as invalid, is a captain and, therefore, one of the limited class eligible for appointment. He is in good faith a candidate for appointment. While the attempted appointment by the board of fire commissioners must be treated as ineffectual, it still may be regarded as indicating a desire and intention upon the part of the appointing power to appoint relator to the vacancy. There stands in his way as an un just and improper barrier the requirement for a competitive examination. It is true that if subjected to. that improper test he might succeed and if relieved from it he might still fail, nevertheless, we think that he has a practical interest which amounts to a legal right to have removed any extra and improper obstacle to his attempt to procure the • appointment in question, and for that reason has the right to maintain this proceeding to review the decision of the civil service commissioners in the respect indicated. (Chittenden v. Wurster, 152 N. Y. 345, 363.)

As bearing upon the second proposition, that these proceedings have not been instituted in time, section 2125 of the Code of Civil Procedure provides: “ Subject to the provisions of the next section, a writ of certiorari to review a determination must be granted and served, within four calendar months after the determination to be reviewed becomes final and binding upon the relator, or the person whom he represents, either in law or in fact.”

The position sought by relator was originally placed in the compétitive class in 1899, and thereafter remained therein. This writ was not issued until August 15, 1904. January 15, 1904, the fire commissioners of the city of Buffalo requested the municipal civil service commission to amend the rules and classification só as to place the position of battalion chief in the exempt class, and thereafter said civil service commission took up the subject with the State Civil Service Commission, recommending that said position be placed in the non-competitive class. In June, 1904, the State Civil Service Commission decided not to approve the recommendation, and thereafter and on July 11, 1904, the municipal civil service commission adopted certain amendments to the rule covering this subject, thereby, in effect, following the decision of the State Civil Service Commission and reaffirming the rule in question which provided for competitive examinations. Thereafter, as required by law (Civil Service Law, § 10, as amd. by Laws of 1900, chap. 675), the amended rule containing the provision for competitive examination was submitted to the mayor of the city of Buffalo for his approval, and the same was approved by him and thereafter submitted to the State Civil Service Commission for its approval, and was thereafter duly approved by it and returned to-the commission with the certificate of its approval duly attached, “ Whereby .(as stated in the return of the Buffalo Civil Service Commission in this proceeding) said amended rule and classification became and is of full force and effect.”

Relator was at this time a candidate for appointment and this determination became final and binding upon him as such candidate. We think that all of the proceedings which took place in connection with the proposed revision of this rule resulted in what was tantamount to a decision to continue the competitive examination and to a readoption of the rule relating thereto, and that relator, who, so far as it appears, at this time by reason of his candidacy first became interested in and bound by the decision, had a right within four months after July 11, 1904, to institute this proceeding. If this view is correct he has moved within the prescribed time.

The writ should be sustained and the proceedings of the defend-, ants placing the position of battalion chief in the competitive class of the civil service reversed and annulled, with costs, without prejudice, however, to the right to reclassify the said position in the noncompetitive class. . '

All concurred, except Stover, J., who dissented in an opinion in which Williams, J., concurred.

Stover, J.

(dissenting): Section 9 of article 5 of the Constitution of the State of ¡New 1 York provides:

“ Appointments and promotions in the civil service of the State and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive ; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this State, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.”

The Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1900, chap. 195) provides for the appointment of civil service commissioners, regulates their powers and duties, and contains legislation for the purpose of carrying into effect the constitutional provision.

Section 1 of the Civil Service Law provides: “ ¡NV officer or officers having the power of appointment or employment shall select or appoint any person for appointment, employment, promotion or reinstatement except in accordance with the provisions of this act and the rules and regulations prescribed thereunder.”

The act further divides the civil service of the State and of each of its civil divisions and cities into the classified and unclassified . service. The unclassified service .comprises all elective offices; all offices filled by electron or appointment by the Legislature on joint ballot, and other positions named in the statute, which does not include the office in question here.

The classified service comprises all positions not included in the unclassified service. It further provides for the selection’ of municipal civil service commissioners, who are authorized to prescribe, amend and enforce rules for the classification of the offices, places and employments in the classified service in the city not inconsistent with the Constitution and the provisions of the Civil Service Law (§§ 8-10, as amd. by Laws of 1900, chap. 675, and Laws of 1902, chap. 270).

Section 11 of the act arranges the offices and positions in the classified service of the State or of any city or civil division thereof in four classes, namely, the exempt class, the competitive class, the non-competitive class and, in cities, the labor class.

By section 12 positions included in the exempt class are the deputies of principal executive officers authorized by law to act generally for and in place of their principals; one secretary of each officer, board and commission authorized by law to appoint a secretary; one clerk and one deputy clerk, if authorized by law, of each court;. one clerk of each elective judicial officer, and in the State servicé all unskilled laborers and such skilled laborers as are not included in the competitive class or the non-competive class; “and in addition thereto there may be included in the exempt class all other subordinate offices for the filling of which competitive or non-competitive examination may be found to be not practicable.” And it further provides: “ But no office or position shall be deemed to be in the exempt class unless it is specifically named in such class in the rules, and the reasons for each such exemption shall be stated separately in the annual reports of the commission. * .* • * Appointments to positions in the exempt class may be made without examination.”

Section 13 of the act defines the competitive class to include “ all positions for which' it is practicable to determine the merit and fitness of applicants by competitive examination, and shall include all positions now existing, or hereafter created, of whatever functions, designations or compensation, in each and every branch of the classified service, except such positions as are in the exempt class, the non-competitive class or the labor class.” The act further provides for promotion, transfer, reinstatement and reduction in the civil service.

Section 15 provides: “Vacancies in positions in the competitive class shall be filled, so far as practicable, by promotion from among persons holding positions in a lower, grade in the department, office or institution in which the vacancy exists. Promotions shall be based upon merit and competition and upon the superior qualifications of the person promoted as shown by his previous service, due weight being given to seniority. * "*

Section 16 provides: “ The non-competitive class shall include such positions as aré not in the exempt class or the labor class- and which it is impracticable to include in the competitive class. Appointments to positions in the non-competitive class shall be made after such nonrcompetitive examination as is prescribed by the rules.”

This furnishes a complete. scheme for the carrying out of the mandate of section 9 of article 5 of the Constitution, and if legisla^ tian was necessary for the enforcement of this constitutional provision, it has been provided by the act in question. .

The relator in order to obtain the relief asked for here must show that he is in the exempt class; for whether he be in the competitive- or the non-competitive class, he has not been subjected to such examination as is prescribed by the rules and regulations under the Civil Service Law; and at the outset we are met with the proposition that the action of the Civil Service Commissioners in placing the position of battalion chief in the competitive list was such an unwarrantable and unreasonable exercise of power that it should bé reviewed and reversed by this court.

- One of the functions of the Civil Service Commissioners under the act of the Legislature above quoted, is to prescribe, amend and enforce suitable rules and regulations for the purpose of carrying-into effect the provisions of the act and of the Constitution. This .necessarily implies the exercise of judgment and discretion, not arbitrary, perhaps, but it calls for the exercise of judgment based upon an investigation of the particular circumstances and a knowledge of particular situations. Whether the judgment exércised is-of a judicial nature or purely administrative for the purposes of this case is not of great moment. The Legislature has lodged with the Civil Service. Commissioners the duty in the first instance of prescribing necessary forms of procedure and the regulation of appointments to the civil service. In the exercise of that discretion they have undertaken to say that the position of battalion chief in the fire department of Buffalo is of such a náture that it should be in ilie competitive class, and in accordance therewith they have' pre-scribed roles and regulations to govern the appointment to that position in compliance with the requirement of section 9 of article 5 of the Constitution that all “ appointments and promotions in the civil .service * * "x" shall be made according to merit and fitness to be .ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive.” They have determined that this position shall be included in the competitive class. This may be based upon their knowledge of the situation which may be peculiar to the city- of Buffalo; it may be based upon their personal knowledge and experience in the conduct of the department, or it may be based upon their observation and information acquired from other sources ; but whatever forms the basis of their judgment, unless it appears to us that it is an unreasonable or unwarrantable exercise of power, we •ought not to interfere with it.

Now, what is the exact situation? We have the return of the State Civil Service Commissioners that in the city of New York a number of persons took the competitive examination for the position of battalion chief; that a number were placed upon the eligible list, and that nineteen appointments were m'ade from such list, and the persons so appointed are now in the service as such battalion chiefs. That in the city of Rochester a competitive examination was held for the position of battalion chief; that fifteen persons took the examination, ten passed and one appointment was made, and the person so appointed is serving as battalion chief in the city of Rochester; and that the duties of battalion chief ■ in the cities of Rochester and New York are identical with those in the city of Buffalo. This being a fact it would seem to conclusively destroy . the contention of the relator that it is impracticable to select Buffalo chiefs from a competitive list.

But it is said that because he may be called upon in the discharge of his duty to perform the duties of his chief he is, therefore, a deputy, and within the provision of section 12 of the Civil Service Law excluding the deputies of principal executive officers authorized by law to act generally for and in place of their principals.

The statute clearly applies to deputies known as such, 'and is limited to those who act generally for their chiefs; but a battalion chief is a separate and distinct position from that of a chief of a department, and the battalion chief does not act generally for and in place of his principal, but is only permitted to act within, the limits of his battalion within the territory- assigned to him, and is not acting generally for his chief, but is acting in the discharge of the duties of his. own position, acting for himself, and within the ^ lines defined by law for his action, and can act in no other way-He is not a deputy within the meaning of section 12 of the Civil Service Law. Nor is lie in such confidential relations to his chief as. to warrant his exemption. There is nothing to indicate any confidential position, nor do we think the question of the confidential character has any bearing upon this case. It is simply a question as to whether it is practicablé to obtain efficient battalion chiefs by competitive examination. As we. have seen, it has been found to-be practicable in other instances, and no reason is assigned why it is not practicable within the limits of the city of -Buffalo.

We'think the statute gave the power to the-commission to adopt the rules which they did adopt; that they were acting Within their jurisdiction, and we ought not to interfere with their determination,

" Another consideration is presented, namely, that, so far as practicable, promotions are to be made from the lower grades Of the service. It is quite apparent that the efficiency of the service will be greatly/advanced by-the promotion from one grade, to another. If the contention of the relator is to obtain this promotion becomes impossible, for promotions may be made entirely from outsiders, ánd no promotion may be expected as a matter of right, whatever the efficiency may be of the -incumbent of the lower grade-.. í Another objection is urged, namely, that the proceedings should have been commenced within four months from -the time -the'classification was made.

Section 2127 of the Code of Civil Procedure gives the remedy of certiorari to a person who may be aggrieved by the action -complained of; not to' any person who may at any time thereafter become aggrieved by reason of the existence Of the act. The remedy provided is somewhat summary in its nature and intended to provide a more efficient remedy than the slower action at law, but it is not intended that proceedings of this character, even where subject to review, should be held open indefinitely or that any person aggrieved at any time by reason of their existence might avail hi-rnself of the provisions of the law. The statute names not only the persons who may take! advantage of it, namely, the persons aggrieved, but limits even those who may be aggrieved to the enforcement of their remedy within four months after the doing of the act. (Code Civ. Proc. § 2125.) If the relator at the time the act complained of was accomplished had no interest in it, then he was not aggrieved by it arid could not by any subsequent action review the action of the tribunal. If he was aggrieved at that time he was bound to avail himself of the statutory remedy within the. limit. Having failed to do so he cannot now be heard.

The relator has been illegally appointed to the position. There is no claim that he has in any way complied with the rules and the civil service regulations, and this illegal act gave him no greater rights than he formerly had.

"We think the determination of the civil service commissioners was right, and the writ should be dismissed.

Williams, J., concurred.

Writ of certiorari sustained and the proceedings of the defendants in placing the position of battalion chief in the competitive class of the civil service reversed and annulled, with fifty dollars costs and disbursements, without prejudice, however, to the right to classify the said position in the non-competitive class.  