Opinion
Argued October 5, 1938
Decided November 29, 1938
Appeal from the Supreme Court, Appellate Division, Second Department.
John McKim Minton, Jr., John W. Jordan and Robert M. Davis for appellant.
H. Eliot Kaplan and Samuel D. Smoleff for H. Eliot Kaplan, amicus curiae. John J. Bennett, Jr., Attorney-General ( Patrick H. Clune and Henry Epstein of counsel), for respondents.
An examination for the position of court stenographer in the Supreme and County Courts of the first and second judicial departments was announced by the State Department of Civil Service in July, 1935. The announcement stated that separate eligible lists would be established for shorthand reporters and for stenotypists, and requested candidates to indicate for which list they were applying. The petitioner attached to her application a statement informing the Commission that she intended to take the examination on a stenotype machine but that she protested against more than one list and was applying with the understanding that this would not prejudice her position if it were determined finally that it was proper to have a single list rather than two lists for the position.
As a result of the examination petitioner obtained the highest grade for either list. The Commission, in accordance with its announcement, established two lists, and the petitioner's name, although it heads the stenotype list, is not included in the shorthand eligible list, which is headed by a candidate with a lower grade than hers. Petitioner instituted this proceeding for a peremptory order of mandamus or an alternative order of mandamus directing the Civil Service Commission to establish a single eligible list for the position. Special Term granted an alternative order of mandamus but denied the peremptory order. On cross appeals, the Appellate Division affirmed the denial of the peremptory order and reversed the alternative order. This appeal is taken from the reversal of the order granting the alternative order of mandamus.
Ordinarily one list and only one list should be established from which appointments to the same position are to be made. This relator, although she obtained the highest rating, may be deprived of an opportunity of being appointed to the position. She and the other stenotypists have been placed on a list separate from the regular shorthand reporters, although the former use a system which apparently lends itself more readily to transcription and may be better in other ways.
The question of the reasonableness of establishing separate eligible lists of those who took notes in shorthand with a pen or pencil and those who employed a stenotype machine, is, under all the circumstances, one of fact. No valid reason has been advanced for holding such action reasonable as a matter of law. The Civil Service Commission has broad discretionary powers, but it cannot act arbitrarily.
The orders should be reversed, and the motion for a peremptory order of mandamus granted, with costs.
CRANE, Ch. J., O'BRIEN, HUBBS, LOUGHRAN and RIPPEY, JJ., concur; LEHMAN, J., taking no part.
Ordered accordingly.