
    In the Matter of the Application of W. Holden Weeks, Respondent, v. John E. Kraft, President, and Walter C. Burton and Elek John Ludvigh, as Commissioners, Constituting the Civil Service Commission of the State of New York, Appellants.
    Third Department,
    November 15, 1911.
    Civil service — classification — transfer .tax appraiser — mandamus to control action of State Civil Service Commissioners denied.
    The court will not issue a peremptory writ of mandamus to the State Civil Service Commissioners commanding them to rescind their action in changing the position of transfer tax appraisers from the competitive class to the exempt class, where the resolution of the Commission has not been approved or disapproved by the Governor, approval being necessary to make the resolution operative.
    A transfer tax appraiser who is still holding office and has not been removed has no standing lio attack the action of the Civil Service Commission in classifying his position, or to interiore with the consideration of the matter by the Governor before whom the matter is pending for official action.
    Houghtost, J., dissented, with opinion.
    Appeal . by the defendants, John É. Kraft, President, and others, constituting the Civil Service Commission of the State of Hew York, 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 1st day of June,. 1911, directing that a peremptory writ of mandamus issue requiring defendants to rescind and revoke their action 'in. passing a resolution classifying the position of transfer tax appraiser, in the exempt class.
    
      Thomas Carmody, Attorney-General, and Franklin Kennedy, for the appellants.
    
      Julius M. Mayer and A. S. Gilbert, for the respondent.
   Betts, J.:

By chapter 483 of the Laws of 1885, An act to tax gifts, legacies and collateral inheritances in certain cases” was passed by the Legislature and approved by the Governor. Under this statute, the surrogate appointed appraisers whose duty it was to appraise the property of persons whose estate should be subject to the payment of said tax. These appraisers were not within the provisions of the civil service statute or in any classification at that time adopted by the commissioners. Later this statute was so amended that the tax was called the taxable transfer tax and in certain counties the . appraisers called the transfer tax appraisers were appointed by the State Comptroller. Such appointments commenced in about April, 1900. The State Civil Service Commission classified these transfer tax appraisers in the exempt class. During the time from 1900 to 1909 there were several different incumbents of the Civil’Service Commission and there were also several different Governors and Comptrollers of the State of New York. It did not occur to them to change the classification; in fact, it was shown by the action of both the Commissioners, the Governors and the Comptrollers that the positions were properly considered exempt and that it was not practicable to secure competent appraisers .by placing them in the competitive class. Some time in November, 1909, Clark Williams was appointed Comptroller of the State of New York by the Governor. He was not elected Comptroller. He took his office on or about November 12, 1909. Twenty days thereafter, December 2, 1909, the then Civil Service Commission changed the classification of the position from the exempt class, which classification it had been in from the time of the adoption of any classification by the Commission, with the approval of the Governors of the State, placing the same in the competitive class. This change was approved by the then Governor shortly thereafter. It appears from the affidavit of John E. Kraft, the President of the Civil Service Commission that this change, of classification was made merely or principally upon the opinion of the then Comptroller that examinations were practicable to test the merit and fitness of persons in such positions. Sometime thereafter an examination was held and an eligible list was prepared, but from it as yet no person has been appointed transfer tax appraiser. Thus it appears an entire change was made in the proposed method of appointment of - transfer tax appraisers upon the recommendation of a man who had been twenty days in office. On April 5, 1911, on the petition of the present Comptroller of the State, elected, received February 20, 1911, asking to have the Commission reconsider the resolution placing in the competitive class the position mf transfer tax appraisers, giving reasons therefor, the Commission passed a resolution changing the classification back to the exempt class. This resolution has not received the approval or disapproval of the Governor. Such classification is entirely inoperative and does not take effect until, approved by the Governor. (See Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 10, which says: “Such rules and any modifications thereof shall take effect when approved by the governor.”) Hence, as the law now stands, the position is in the competitive class, and if the change proposed in the classification by the Commissioners is not approved by the Governor it will remain in the competitive class.

With this situation existing, one W. Holden Weeks, who describes himself as a citizen of the United States and of the State of New York, a resident of the borough of Manhattan, city of New York, and a transfer tax appraiser, being appointed in January, 1909, from the exempt class, applied to the Special Term for a writ of mandamus against said State Civil Service Commission, commanding it to rescind and revoke its action in passing the resolution classifying the position of transfer tax appraiser in the exempt class of the classified civil service. The Comptroller’s petition was submitted about February 20, 1911, and dated that day; the resolution attacked was passed April 5, 1911, after hearing and consideration, and on April 27, 1911, Mr. Weeks verified his petition or affidavit asking for the writ herein. Return was made thereto by the State Civil Service Commission, and an affidavit was made by the Comptroller giving his reasons why. he thought the position should be in the exempt class, and by the President of the Civil Service Commission giving his reasons for the action taken and proposed to be taken. The matter came on before the Special Term, which granted a peremptory writ of mandamus, and the State Civil Service Commission has appealed' therefrom.

I think that the application was prematurely made. No change in classification has been effected, and until it has been done the-court should not be asked to interfere with one of - the Commissions of the State, which is proceeding in its own way to carry out the business of the State which has been intrusted to it by the Constitution and the statutes. The action of the Commission is a recommendation to the Governor, the executive-head’ of the State, which the Governor may or may not approve. Unless he does approve, no change will be' effected. The great State writ qf mandamus should not be granted' upon the application of a citizen who has no interest save that of any other citizen of the 'State to permit him to attack and direct this State Commission how it should perform its duties, and to reach up to and interfere with the dignified consideration of the Governor of this State of matters pending before him for official action. Mr. Weeks has no..direct interest in this proposition. The-Comptroller has the absolute power under the statute now of removing him at any time. No. attempt has been made to do so.

I think the application is uncalled for at this time and should not be granted. My attention has not been called to any case where the'writ of mandamus has directed the Commission how it should frame its resolutions and what questions it may or may not pass upon, but the aid of said writ has been invoked' to change a completed classification when some person thought there were proper reasons for so doing.

It was held in People ex rel. Schau v. McWilliams (185 N. Y. 92), decided in 1906, that the determination of a municipal civil service commission in classifying positions in the public service, although involving the exercise of judgment and discretion, is more of a legislative or executive character than judicial or quasi-judicial, and, therefore, is not reviewable by certiorari. In that case the classification was complete. The court, in the above case, also says: “It does not at all follow that the action of the civil service commission is not in any case subject to judicial control; but that such control is a limited and qualified one to be exercised by mandamus. If the position is clearly one properly subject to competitive examination, the commissioners may be compelled to so classify it. On the other hand, if the position be by statute or from its nature exempt from examination and the action of the commission be palpably illegal, the commission may be compelled to strike the position from the competitive or examination class, though in such case redress by mandamus would often be unnecessary, as a valid appointment could be made notwithstanding the classification. But where the position is one, as to the proper, mode of filling which there is fair and reasonable ground for difference of opinion among intelligent and'conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification. The present case is of this character. We ought not to interfei'e with the. determination of the commissioners that it should be filled by competition; and if they had decided that the position should be filled without competition, equally ought we to refrain from interference. The position lies in that field where the action of the commission should be final. * * * If the classification of the commission clearly violates the Constitution or the statute, mandamus should issue to correct the classification. If the action of the commission is-not palpably illegal the court should not intervene.”

As before stated, I think this application is prematurely made. The Governor may not approve. The Commission may reverse its. action taken. The courts should be and are usually called upon to decide real and not moot questions. . Their aid should not be invoked until some completed action is taken which results in a completed classification. In addition, upon the merits it would seem as though this case came fully within the rule laid down in People ex rel. Schau v. McWilliams (supra), that where the position is one, as to the proper mode of filling which there is fair and reasonable ground for difference of opinion among intelligent and conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification.” Here we have seen that a comparatively long line of Governors, many different Civil Service Commissioners and Commissions, and all the Comptrollers from the time that the statute was first enacted in 1885 down to 1909, until the arrival of Comptroller Williams, concluded that this position was properly classified as in the exempt class..

These respective classifications were adopted and continued long after the adoption of the Constitution of 1894, and later after the statutes suggested by the Constitution were passed in order to carry into effect the provisions of that Constitution.

To deny to the Civil Service Commission the power to change its rules and classifications after they have been once made, as is sought to be done in this case, after the lapse of a few months has convinced the Commission that its action in 1909 was wrong, and that the classification for the many years prior thereto is correct, would be to deny to a body of State officials the right to correct an error that had crept into their proceedings when fuller information and a more careful consideration had convinced them that such action was not for the best interest of the service. (See, also, People ex rel. Merritt v. Kraft, decided at the June term of tljis court and the opinion of Presiding Justice Smith therein, 145 )App. Div. 662; 130 N. Y. Supp. 363. See Matter of Simons, 130 N. Y. Supp. 306; 145 App. Div. 471, where it is held: “The classification of a given position under Civil Service Law * * * involves the exercise of judgment and discretion, though it is more of a legislative or executive character than judicial.” See Chittenden v. Wurster, 152 N. Y. 345, where it is held that such a classification made by the mayor of a city, presumably in the conscientious discharge of his duty under the statute, is valid until declared to he erroneous.)

The proceeding as. to whether a new classification shall be adopted or not is still pending before the State Civil Service Commission and the Governor. It is neither dignified, courteous nor proper in my opinion for the courts to interfere until some completed action is taken by them. When that is taken it may appear that no one has a grievance. If such grievance is later on shown it will then be proper for the court to act if a proper case is made for that purpose..

I think from what has "been shown that the order appealed from should be reversed and the writ quashed, with costs.

All concurred, Kellogg, J., in result, except Houghton, J., dissenting in opinion.

Houghton, J. (dissenting):

I do not think the application for a mandamus was prematurely made.

It is true that the order of the Commission transferring the position of transfer tax appraiser from the competitive to the exempt class may not be approved by the Governor. Nevertheless the Civil Service Commission did all that was in its power to do when it made the order, and so far as the Commission was concerned it was a final one. If such order was erroneous mandamus would lie to compel its correction before it was placed in the hands of the Governor for approval or disapproval. Indeed, it is quite proper if there be any question about the order that its validity be determined before the Governor should he called upon to act with respect to it. The Governor had not approved the order in People ex rel. Merritt v. Kraft (145 App. Div. 662), and the propriety of the order directing mandamus was passed upon without question as to its being prematurely made.

For the reasons stated by me in my dissenting opinion in People ex rel. Merritt v. Kraft (supra) I think mandamus lies, for the correction of erroneous classification by the Civil Service Commission, and I think also that the Commission in the present case erroneously determined that a transfer tax appraiser could not be properly' selected ■ by . a competitive examination and that the transferring of such position from the competitive to the exempt class was wholly unjustified and that the mandamus was properly issued directing the rescinding of its resolution of reclassification. ■ •

The duties of a transfer tax appraiser themselves demonstrate not only that he can be selected by competitive examination but that he ought to be selected by such examination. He is called upon to determine what is taxable under the Transfer Tax Law. He must have a knowledge of trusts and of wills, and -devises -and bequests, and of the descent and distribution of property of decedents. He must be an expert upon the value, of stocks and bonds and personal property in general. He must be capable of ascertaining the value of real property and of conducting examinations and deciding questions of fact as to residence, relationship and the like. Questions calling for the. knowledge of an applicant with respect to these matters can be easily framed, and his answers will readily disclose his qualifications. It would be difficult to imagine a position in which the qualification of applicants could be more readily and properly determined by a competitive examination than that of transfer tax appraiser. - -

I can see no excuse whatever for transferring such position from the competitive to the exempt class except for the purpose of evading the letter and the spirit of the Civil Service Law. .

I, therefore, vote for an affirmance of the order.

Order reversed, and writ quashed.  