198 A.D. 460 | N.Y. App. Div. | 1921
This is an appeal from an order directing the issuance of a writ of alternative mandamus. The applicant was a member of the senior class of the Albany Law School, and was expelled therefrom on the 27th day of April, 1920. The writ, directed to the Albany Law School, commands it to reinstate the applicant, to furnish him with instruction, to permit him to take examination tests for graduation, and, if he passes the same, to grant him a diploma, or to make return showing cause why these things should not be done. The proceedings were instituted by an order to show cause based exclusively upon a petition made by the expelled student. In opposition to the application, the Albany Law School, on the return day of the order, filed an answer or affidavit made by J. Newton Fiero, its trustee and dean, together with other affidavits and documents. No replying affidavits were filed by the applicant. It is claimed by the appellant that upon the undisputed facts the expulsion of the applicant by its faculty was within its
In People v. Bellevue Hospital (60 Hun, 107) a medical student, who had finished a prescribed course of study, was refused permission by his college to take the final examinations which might qualify him for a degree. On an application for a writ of peremptory mandamus the college made no explanation of its refusal. It was held that the writ should issue commanding the college to examine the student for graduation. It was said for the court by Presiding Justice Van Brunt: “ It may be true that this court will not review the discretion of the corporation in the refusal, for any reason or cause, to permit a student to be examined and receive a degree; but where there is an absolute and arbitrary refusal, there is no exercise of discretion. " It is nothing but a willful violation of the duties which they have assumed.” In People ex rel. O’Sullivan v. New York Law School (68 Hun, 118) it was held that a writ of peremptory mandamus had wrongly issued in the case of a student refused an opportunity for graduation where it appeared from the affidavits that there were discretionary grounds for the refusal. The court said: “ To hold that dissatisfied students in the colleges and schools of this State can review the discretion of faculties in cases when the facts justify the exercise of discretion, would be most unwise.” In People ex rel. Jones v. New York Homeopathic Medical College & Hospital (47 N. Y. St. Repr. 395) it was said: “ Courts may be versatile, but they must be careful not to infringe upon the discretion vested in excise boards, colleges or inferior tribunals, nor to substitute its discretion for theirs. The determination by these bodies of any questions within the scope of their jurisdiction is, as it should be, as conclusive and free from control upon mandamus as that exercised by the highest jurisdictions in the country.” In this case, therefore, unless there is proof that the expulsion of the student was “ arbitrary,” that there was “ no exercise of discretion,” or that the facts did not “ justify the exercise of discretion,” or that in exercising discretion the faculty of this school were not acting “ within the scope of their jurisdiction,” the writ should not issue. In my .judgment there is no such proof.
The answer or affidavit made by Dean Fiero states as follows: “That this petitioner, Jacob M. Goldenkoff, while a student at such school in the year 1920 made disloyal statements with regard to the United States and held and had
It is not the office of a writ of alternative mandamus to effectuate a redetermination by a court of tacts relating to the conduct of an expelled student when such facts have already been decided against the student by the faculty of a school having jurisdiction. Its only function is to determine disputed facts upon which the rightful exercise of such jurisdiction may depend. In this case it is not in dispute that on many occasions the petitioner gave expression to views which were unpatriotic, revolutionary and anarchistic; that these expressions wer.e known to the - faculty of the Albany Law School; that they constituted in part the grounds of their decision in favor of his expulsion. Clearly, therefore, the faculty acted within the scope of its jurisdiction, and exercised its discretion in a matter involving discretion, to such purpose that no review thereof may be made by a court. The alternative writ of mandamus should not have issued.
The order should be reversed and the application dismissed.
John M. Kellogg, P. J., Cochrane, Kiley and Van Kirk, JJ., concur.
Order reversed and application denied, with costs.