
    The People of the State of New York ex rel. Charles F. Murphy, Appellant, v. John E. Kraft, President, and Others, Commissioners, Constituting the Civil Service Commission of the State of New York, Respondents.
    Third Department,
    March 5, 1913.
    Civil service — placing position in exempt class — determination that examination is impracticable is prerequisite — mandamus — demurrer to alternative writ.
    By virtue of the State Constitution and the Civil Service Law the Civil Service Commissioners cannot classify the position of transfer tax appraiser as exempt unless it shall be found impracticable to place such position in the competitive or non-competitive class.
    The Civil Service Commissioners cannot arbitrarily exempt such position upon the request of the Comptroller and a decision so made is invalid. They must in good faith ascertain and determine that it is impracticable to place the position in the competitive or non-competitive class.
    A demurrer to an alternative writ of mandamus which alleges in substance that such positions were exempted by the Civil Service Commissioners solely upon the request of the Comptroller and in bad faith and without a determination as to whether a competitive examination was practicable, etc., should be overruled and the respondents should be permitted to file a return if they so desired so that the issues may be determined upon the merits.
    Appeal by the relator, Charles F. Murphy, from an order of the Supreme. Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 23d day of March, 1912, sustaining a demurrer to an an alternative writ of mandamus and quashing said writ as a matter of law.
    
      Albert de Roode, for the appellant.
    
      Thomas Carmody, Attorney-General [Franklin Kennedy of counsel], for the respondents.
   Lyon, J.:

The appellant, who is a transfer tax appraiser in the office of the State Comptroller, to which position he was appointed in July, 1909, obtained ex parte in February, 1912, an alternative writ of mandamus requiring the respondents, who constituted the Civil Service Commission of the State, to rescind the resolution passed by them in April, 1911, classifying as exempt twenty-two positions of transfer tax appraisers in the office of the State Comptroller, the classification of which had been changed in December, 1909, from the exempt to the competí-' tive class, or to show cause why the command of the writ should not be obeyed. The respondents demurred to the writ upon the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and from the order quashing the writ this appeal has been taken.

The statements contained in the writ, so far as material to be considered at this time, are that the respondents in exempting the position of transfer tax appraisers did not inquire into the character of the examination nor of the qualifications of the persons on the eligible list to ascertain whether such examination was practicable and calculated to procure and had resulted in procuring persons qualified for such positions, nor had considered the fact that since the passage of said resolution of April, 1911, the State Comptroller had appointed and retained beyond the probationary period a transfer tax appraiser selected from the eligible list, but that the respondents had based their determination that the position of transfer tax appraiser should be exempt solely upon the representation and request of the Comptroller, ignoring the question of whether a competitive examination was practicable to fill the position, and that such action of the respondents was taken arbitrarily and in bad faith, and for the purpose of enabling the State Comptroller to appoint persons of his own selection to the positions named rather than for the purpose of carrying out the provisions of the Civil Service Law and of the rules thereunder. The respondents by demurring to the writ have admitted all the allegations thereof to be true.

Section 9 of article 5 of the State Constitution, provided that “Appointments and promotions in the civil service of the State * * * 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.” The Civil Service Law (Consol. Laws, chap. 7 [Laws of 1909, chap. IS], § 13), after designating certain positions, of which transfer tax appraiser is not one, as included in the exempt class, provided: “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.” Thus the Constitution, as well as the Civil Service Law, did not permit the respondents to classify the position of transfer tax appraiser in the exempt class unless it should be found to be not practicable to place the same in the competitive or non-competitive class. This meant that the respondents before placing the position in the exempt class should in good faith ascertain and determine that it was impracticable to place the position in the competitive .or non-competitive class. As stated in Hale v. Worstell (185 N. Y. 247, 252): “ The Constitution cleaxiy contemplates that all appointments and all promotions shall be made according to merit and fitness to be ascertained by competitive examination unless it is in good faith found that it is impracticable so to determine the relative merit and fitness of persons for a particular position or employment.”

In view of these provisions of the Constitution and of the Civil Service Law the respondents could not arbitrarily, upon the request of the Comptroller, and ignoring the question of whether a competitive examination was practicable to fill the position, transfer the appointment from the competitive class to the exempt class. A decision so made would be invalid. From the brief of the respondents it appears that the respondents claim that the office of transfer tax appraiser has been classified as exempt through the various State administrations since the year 1900 with' the exception of the period of sixteen months hereinbefore referred to, and that such change of classification was made by the respondents in good faith, after full investigation, and for the reason that it was found to be impracticable to determine by competitive examination as to the merit and fitness of persons for such position. But these allegations of the respondent are no part of. the record and cannot be considered by the court upon this appeal.

In view of the admission by demurring of the truthfulness of the allegations of the writ we think the Special Term was in error in sustaining the demurrer and quashing the writ, and that the demurrer should have been overruled, but with permission to the respondents to file a return, should they so desire, in which they could set up the facts claimed by them, and the questions at issue be determined upon the merits.

The order appealed from should be reversed and demurrer overruled, with permission to respondents to withdraw demurrer and file a return within twenty days after the service of a copy of the order of reversal.

All concurred.

Order reversed, with costs, and demurrer overruled, with costs to relator, with leave to respondents to withdraw demurrer and file return within twenty days, upon payment of costs in this court and at the Special Term.  