219 A.D. 563 | N.Y. App. Div. | 1927
We are not concerned with the finding of the Commissioner of Education on the merits as to the educational and economic reasons for the consolidation of these school districts. The questions before us test whether the district superintendent had jurisdiction to make the orders of consolidation. The contentions of the relators are:
1. That union free school district No. 1 was not within the jurisdiction of the district superintendent of schools at the time his orders of dissolution and annexation were made and that his orders were, therefore, void. In making the orders in question, the district superintendent expressly acted pursuant to section 129 of the Education Law, which provides as follows: “ Any school commissioner [district superintendent, according to Education Law, § 2, subd. 6] may dissolve one or,more districts * * *; he may.also unite such territory or a portion thereof to any adjoining school district, except a union free school district whose boundaries are coterminous with the boundaries of an incorporated village or city.” His authority to unite the territory or a part thereof of a dissolved district to any adjoining school district is “ without exception or limitation other than that it cannot be united to the territory of a union free school district whose boundaries are coterminous with the boundaries of an incorporated village or city.” (Bullock v. Cooley, 225 N. Y. 566, 571.) Any other union free school district which adjoins one or more dissolved districts comes within the authority conferred upon a district superintendent by said section 129. The territory of union free school district No. 1 of the town of Tonawanda, Erie county, was made a part of the first supervisory district of that county in 1911, when such supervisory districts were created in the State. (Laws of 1910, chap. 607, amdg. Education Law, art. 14.) Thé entire town of Tonawanda became the first supervisory district of Erie county. From that time to the present such town and all the school districts therein have participated in the election of a district superintendent and have contributed to the payment of part of his compensation. In 1922 an enumeratidn of the inhabitants of union free school*566 district No. 1 of that town was completed (Education Law, § 492, as amd. by Laws of 1920, chap. 141) and the population was found to be 4,600, thus permitting such union free school district to appoint a superintendent of schools (Education Law, § 312, as amd. by Laws of 1920, chap. 141); and since then one has been employed. The boundaries of such union, free school district are not coterminous with the boundaries of an incorporated village or city. It is, therefore, not such a union free school district as comes within the exception in said section 129. It would seem that it is within the provision of said section as to “ any adjoining school district; ” and that it is a district to which the dissolved school districts in question could be annexed, even though such union free school district should have ceased to be a part of such first supervisory district after employing a superintendent of schools. If it is no longer a part of the first supervisory district in said county, it is likewise not a part of any other supervisory district. In the absence of statutory prohibition there is no good reason for holding that the Legislature did not intend that a larger union free school district employing a superintendent of schools should be formed by order of a district superintendent under said section 129, even though such district superintendent were not to have any jurisdiction over the dissolved school districts after the consolidation. The Legislature has not so limited his powers and the court has no power so to decide. According to the plain wording of said section 129, it was immaterial whether union free school district No. 1, town of Tonawanda, was within the jurisdiction of the district superintendent at the time his orders of dissolution and annexation were made.
We do not hold, however, that such union free school district was not within the jurisdiction of the district superintendent at the time he made his orders. There is another answer to the contention of the relators. The Education Law contains no provision whereby territory that was once included within a supervisory district may be eliminated therefrom by the appointment of a' superintendent of schools under Education Law, section 312. When, in 1911, the counties of the State were originally divided into supervisory districts, cities and school districts of 5,000 or more which then employed a superintendent of schools were excluded (Education Law, § 381, enacted by Laws of 1910, chap. 607); but no provision was made to exclude from supervisory districts any school district which thereafter grew to have a population of 5,000 or more and was permitted to employ a superintendent of schools. The Legislature had to have some basis for a start and it chose to eliminate' at the outset districts of 5,000 or more having a
2. That the order of the district superintendent annexing district No. 3 to district No. 1 was in direct violation of section 129 of the Education Law, for the reason that the two districts did not adjoin and that the order was, therefore, void. There was a gore of land belonging to district No. 4 (which was likewise dissolved) which extended between district No. 3 and union free school district No. 1. The three districts when consolidated, however, formed a compact and contiguous territory. The district superintendent did not dissolve district No. 3 and district No. 4 by one order but he made two orders. First he issued an order dissolving district No. 4 which adjoined district No. 1 and by that order he annexed the territory of the dissolved district to district No. 1. Then he immediately signed the order dissolving and annexing district No. 3. Both orders were made effective at the precise time of signature. Thus when he signed the second order district No. 1 included district No. 4 and he had a right then to order that district No. 3 be added to that new district which it then adjoined. It is quite apparent that the district superintendent had the provision of the statute as to “ adjoining ” districts in mind when he signed the orders as he did and then filed the first order one day in advance of filing the second order. We have no right to review the determination of the Acting Commissioner as to the educational and economic advantages of these two consolidations. It would serve no just or useful purpose for this court to apply the maxim that the law takes no cognizance of a fraction of a day so that the two orders of the district superintendent might be deemed simultaneous and that district No. 3 might be deemed improperly annexed to district No. 1 because it was not an “ adjoining ” district. That maxim of the law is not a rule of universal application. It is a legal fiction which is applied where the interests of justice will be served but never against the right and justice of the case. (Marvin v. Marvin, 75 N. Y. 240, 243; Ottman v. Hoffman, 7 Misc. 714, 715; Matter of Richardson, 2 Story U. S. C. C. 571.) It is of no consequence whether the period of time between the signing of these two orders was an instant of time or a day or a year. Concededly the district superintendent had the right to make the second order the very next day or at any subsequent time. The sole objection is that he could not
In view of the fact that the district superintendent had jurisdiction to make the orders which have been affirmed by the Commissioner of Education on appeal therefrom, the latter’s determinations are final and conclusive and not subject to judicial review. (Matter of Levitch v. Board of Education, 243 N. Y. 373; People ex rel. Board of Education v. Graves, Id. 204; Bullock v. Cooley, 225 id. 566; Barringer v. Powell, 230 id. 37; People ex rel. Hylan v. Finegan, 227 id. 219; Board of Education v. Board of Education, 76 App. Div. 355; affd., 179 N. Y. 556.)
The certiorari proceedings should be dismissed, with fifty dollars costs and disbursements to the respondents.
Van Kirk, Acting P. J., McCann, Davis and Whitmyer, JJ., concur.
Certiorari proceedings dismissed, with fifty dollars costs and disbursements to the respondents.