109 N.Y.S. 983 | N.Y. Sup. Ct. | 1908
An alternative writ of prohibition has heretofore been granted in this matter restraining the defendant Andrew S. Draper, as Commissioner of Education of the State of Hew York, from hearing a certain appeal, taken by Elias P. Mann, individually and as mayor of the city of Troy, from the decision of the board of education of the
An application is now made to make this alternative writ of prohibition absolute, on the ground that the Commissioner of Education has no jurisdiction to hear this appeal. Elias P. Mann, individually and as mayor, makes a return objecting to the legal sufficiency of the papers upon which the writ of prohibition herein was granted and alleging that the said Draper has jurisdiction of the appeal referred to in the petition herein. ■
Practically all the questions submitted here were decided in People of the State of New York ex rel. Walrath v. O’Brien, 112 App. Div. 97; except that in that case the relator therein conceded (1) that the public schools of Troy were common schools'and (2) that chapter 560 of the Laws of 1902, including the city of Troy, is an act pertaining to common schools, which matters are not conceded here by this relator hut are denied.
We 'shall address ourselves then to those two questions.
We find in chapter 66 of the Laws of 1805 an act passed to raise a fund for the encouragement of common schools. Chapter 32 of the Laws of 1807 is an act further to increase the common school fund. In chapter 246 of the Laws of 1811, entitled “An Act for the payment of certain officers of government and for other purposes,” we find section 54 to be as follows: “ It shall and may be lawful for the person administering the government t,o appoint five commissioners to report at the next meeting of the legislature, a system for the organization and establishment of common
Somewhat similar provision for the organization and support of the common schools has continued under statutory authority ever since; and there has been an officer designated as the Superintendent of Public Instruction until the act (chapter 40 of the Laws of 1904) was passed which repealed the last act on that subject as to the title to the office and designated an officer with substantially the same and additional duties as the Commissioner of Education which position is now held by the defendant Draper.
Chapter 131 of the Laws of 1816 is entitled “An Act to incorporate the city of Troy.” Commencing with the preamble of section 40 of that act and including sections 40 to 41 inclusive, provision is made for school and educational matters in said city. Section 42 thereof provides that the school trustees, whose election is provided for in that statute, shall be required to perform the duties of inspectors and trustees under the “Act for the better establishment of common schools,” subject to such regulations as the common council of said city shall make. Section 43 provided that the moneys which shall arise from the distribution of the school fund shall be appropriated to the support of the city’s schools by the commissioners of schools. By chapter 198 of the Laws of 1849, the Legislature amended the charter of the city of Troy and provided for the establishment of free schools in said city. Section 3 thereof provided, among
Article 9, section 1 of the Constitution of the State of Hew York, adopted in 1894, provides as follows:
Section 1. “ Common schools.— The Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated.”
Chapter 182 of the Laws of 1898 was “An Act for the government of cities of the second class ” commonly known as the White charter. Troy is a city of the second class. Section 240 of that act and subsequent sections were amended by chapter 560 of the Laws of 1902, which is entitled “An Act to amend chapter 182 of the Laws of 1898 relative to the department of public instruction in cities of the second class.” Section 240 thereof provides for a board of education composed of three members to be called commissioners of education, which is the board of education now had in the city of Troy, and provides said board shall be the head of the department of public instruction in said cities. Section 242 thereof is as follows:
“ The board has all the powers and is charged with all the duties of commissioners of common schools, and of trustees of the several school districts in this State, under the general statutes relating to common schools, so far as such powers and duties can be made applicable to the schools herein provided for, and are not inconsistent with the provisions of this act.”
“ The superintendent of schools shall hold office during the pleasure of the board. Any person may prefer charges of incompetency, maladministration or misconduct- in office against the superintendent, and thereupon the hoard shall proceed to hear the charges, and in case the same shall he sustained by the affirmative votes of a majority thereof the superintendent shall be dismissed from his office.”
I think, from this brief examination of the legislation relating to the schools of this State and the city of Troy, it must be fairly apparent that the schools of said city are common schools, part of the common school system of this State.
It must also follow from an examination of said legislation that chapter 560 of the Laws of 1902 is an act pertaining to common schools. The title indicates it, and all the sections refer to matters pertaining to the common schools of the cities of the second class in this State. This supplies what was not determined by the Appellate Division in People ex rel. Walrath v. O’Brien, hereinbefore referred to. It seems to me clear that the Legislature intended the jurisdiction of the Commissioner of Education to apply to the common schools of the cities of the second class, including Troy; hence the appeal herein is governed by subdivision 7, section 1, title 14, chapter 556 of the Laws of 1894, as amended by chapter 40 of the Laws of 1904, which confers upon the Commissioner of Education-the powers and duties of Superintendent of Public Instruction, heretofore exercised by said superintendent, including the power to determine appeals of this kind.
The point is made by the relator that the defendant Mann is not a person, aggrieved within the statute. The statute is “ any person conceiving himself aggrieved in consequence of any decision made * * * may appeal.”
The Commissioner being given jurisdiction of the subject-matter of the appeal, the burden is on the defendant Mann to show before the Commissioner that he is aggrieved by the decision of the board of education.
It follows, therefore, that the writ of prohibition herein should he dismissed; and an order may be entered vacating or quashing it.
Ordered accordingly.