104 Misc. 564 | N.Y. Sup. Ct. | 1918
Application is made for a writ of mandamus directing the reinstatement of the petitioner as an assistant teacher of Latin in one of the high schools under the control of the board of education, from which position she was dismissed on June 19, 1918. The dismissal occurred after a trial upon which petitioner was found guilty of the charges hereinafter mentioned. The statute under which the removal was made provides, in brief, that a teacher shall hold her position “ during good behavior and efficient and competent service, and shall not be removable except for cause after a hearing by the affirmative vote of a majority of the board.” Laws of 1917, chap. 786, § 872.
On January 10, 1918, the petitioner was required to appear before the board of superintendents and was then and there interrogated by them as to her views upon the present war and the attitude she would take and was taking with regard to her duties as a teacher in relation to the war. The petitioner is a Quakeress and opposed to all war, offensive and defensive. Her answers to the questions propounded to her may be summarized as follows: She would not uphold this country in forcibly resisting invasion; she did not want to help the govermnent of the United States in carry
As a result of the foregoing expressions of belief and declarations of policy and intention, the district superintendent assigned to high schools, on March 12, 1918, suspended the petitioner without, pay from further service as a teacher and at the same time notified her that he had preferred charges against her of conduct unbecoming a teacher. He also informed her that a copy of the charges would be served with a notice to appear for trial. On April 24, 1918, the secretary of the board of education formally notified the petitioner that she was charged with conduct unbecoming a teacher and a copy of' the charges and specifications was annexed to the notice, which also informed the petitioner of the time and place of trial. The charges and specifications are expressly based on the answers given to the questions put by the members of the board of superintendents on January 10, 1918. A stenographic report of the meeting was taken and a copy of the questions and answers is made part of the petition to this court and there is no' dispute as to what occurred. The charge, as above indicated, is of conduct unbecoming a teacher; the specifications set forth the making of the answers enumerated above.
It is claimed that the board of education was without jurisdiction to dismiss the petitioner as no legal ground for removal was advanced. She calls attention to the fact that teachers hold their positions during
It is further urged that in dismissing the petitioner upon the grounds assigned there was a violation of the federal and state Constitutions in that she was discriminated against on account of her religion and that there was an attempted restraint upon the observance of the Quaker faith. Such is not the cáse. The petitioner was not dismissed because she is a Quakeress. It has simply been found that certain views and beliefs, which she declares are based upon her religion, prevent her from properly discharging the duty she assumed. Where a person agrees with the state to perform a public duty she will not be excused from performance according to law merely because her religion forbids her doing so. While the petitioner may be entitled to the greatest respect for her adherence to her faith, she cannot be permitted because of it to act in a manner inconsistent with the peace and safety of the state.
The board of education had jurisdiction to entertain the charges against the petitioner and its decision was an exercise of the discretion vested in it. The only remedy, therefore, of the petitioner was to appeal to the commissioner of education. People ex rel. Peixotto v. Board of Education, 160 App. Div. 557; affd., 212 N. Y. 463; People ex rel. Merrall v. Cooley, 75 Misc. Rep. 188, 191. Any person conceiving himself aggrieved may appeal or petition to the commissioner
The petitioner may possibly, in seeking relief in this court by writ of mandamus, have so delayed her application to the commissioner of education that he will decline to entertain it. Whether he will so decline is uncertain, He .may for good cause shown waive the
Application denied.