
    In the Matter of the Application of Clark H. Hammond, as Corporation Counsel of the City of Buffalo, New York, Appellant, Respondent, for a Peremptory Writ of Mandamus against George A. Ricker and Others, Constituting the Municipal Civil Service Commission of the City of Buffalo, and Louis P. Fuhrmann, as Mayor of Said City, Respondents, Appellants.
    Fourth Department,
    July 12, 1910.
    Civil service — mandamus to compel municipal commissioners to make reclassification — State Commissioners necessary parties — mandamus— writ does not lie to compel discretionary act — exemption of secretary.
    Mandamus does not lie to compel a municipal civil service commission to reelas- • sify positions so as to make them non-competitive unless the State Commis sioners are made parties, as any reclassification is subject to their approval.
    As the proper classification of deputy assistant city attorneys, managing clerk, registrar and detectives in the law department is a matter within the discretion of the municipal civil service commission, and as the question as to whether they should be in the competitive or non-competitive class is a matter of opinion, and not a strict question of law, mandamus does not lie to compel the commissioners to change their determination.
    But as the statute provides that one secretary for each officer authorized by law' to appoint a secretary shall be exempt, a municipal civil service commission may be compelled by mandamus to exempt one stenographer appointed by such officer.
    Cross-appeals by the petitioner, Clark H. Hammond, as corporation counsel, and the defendants, George A. Ricker and others, constituting the municipal civil service commission, and another, from parts of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 9th day of March, 1910, granting in part and denying in part a motion for a peremptory writ of mandamus commanding the defendants to reclassify certain positions in the department of law of the city of Buffalo.
    
      Clark H. Hammond and Harry D. Sanders, for the petitioner.
    
      Adalbert Moot and John W. Ryan, for the mayor and civil service commission.
    
      Ansley Wilcox, for the Civil Service Reform Association.
   Williams, J.:

The order should be reversed and the proceeding dismissed, without costs.

The applicant for the writ was the corporation counsel of the city of Buffalo, He desired certain positions in his office to be made non-competitive, and the defendants refused to make them such. The Special Term held they were right, except as to one position, and the writ was granted as to that position and denied as to the balance.

First. It is objected that the proceeding could not be maintained without making the State Civil Servicé Commissioners parties. This objection is well taken. The defendants cannot alone reclassify, so as to place the offices in question upon the non-competitive list. The State Commissioners must approve their action. If the court were to grant the writ and order such reclassification and the-State Commissioners should refuse to approve, another proceeding would be necessary to secure thé desired relief. This should not be so. The whole matter should be determined in this proceeding. We have substantially so held in People ex rel. Huber v. Adam (116 App. Div. 613).

Second. The court was right in refusing to reclassify the offices known as deputy assistant city attorneys, managing clerk, clerk, registrar and detectives. The statute provides that no offices shall be put in the non-competitive class unless they are exempt as provided by the Legislature. (Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], §§ 12, 13, 14.)

The exempt class does not in express terms cover these offices in question. They are required to be placed in the competitive class, if practicable, and the only claim made by the applicant is that' it is impracticable to make these positions competitive. Counsel have argued about this question very fully in their points submitted to us, and we have also the opinion of a very careful judge (66 Misc. Rep. 526). He arrived at the conclusion that it was fairly debatable by reasonable men whether proper classification had been made as to these offices, and, therefore, that the writ should be denied. As said in the head note in Matter of Hill (185 N. Y. 106): “While mandamus is the proper remedy to compel a municipal civil service commission to correct an illegal classification of positions in the public service, it will not lie when the determination of the commission does not constitute an abuse of discretion, and it cannot be said, therefore, to be illegal.” And, again, in People ex rel. Schau v. Mc Williams (185 N. Y. 97, 98) it was said: “If it should appear that there was a plain violation by the commission of its duty to classify as competitive an office which was clearly and manifestly so, there should be a remedy in the courts. But there is necessarily a large debatable field as to cases within which there will be great differences of opinion, even among the most intelligent and fair-minded píen, and as to this field it seems to me that.it is not reasonable that the judgment of an appellate court should be substituted for that of the commissioners.”

I will not enter upon any discussion of the question as to whether the commissioners acted wisely in their action. It was their discretion and judgment and not ours that was to determine. They did not act illegally, and, therefore, the court could not by mandamus compel them to change their determination.

Thvrd. The statute provides that there shall be exempt one secretary of each officer authorized by law to appoint a secretary. The commission failed to comply with this provision and the court, therefore, very properly granted the writ to the extent of requiring this to be done by exempting one stenographer.

We should, therefore, affirm the order, except that we must hold that the court could not entertain the proceeding without making the State Commissioners parties. The order must, therefore, be reversed and the proceeding dismissed, but without costs.

All concurred.

Order reversed and proceeding dismissed, without costs.  