17 Barb. 299 | N.Y. Sup. Ct. | 1853
The question involved on this motion for a mandamus, is, whether the city superintendent of- common schools for the city and county of New-York has power to annul a license granted to a teacher.
The county superintendents had that power originally, and the town superintendents have it now. In November, 1847, the office of county superintendent was abolished in every county except New-York, and there continued to be in that county a county superintendent, until 1851, when that office also was abolished and a city superintendent, Tyas substituted, and his powers and duties defined. They were very nearly the same with those formerly possessed by the county superintendent. But there were two markpd alterations. One was that the county superintendent, without any aid, could grant certifi
That claim rests upon two grounds: first, that like the appointing power of the president of the United States the power of removal is necessarily implied; and second, that it is implied in the general clause of the statute creating the office of city superintendent, which makes it his duty “ generally by all means in his power to promote sound education, elevate the character and qualifications of teachers, improve the means of instruction, and advance the interests of the schools committed to his charge.”
As to the first consideration, it- will be enough to remark that the examination of a teacher and licensing him can hardly be called an appointment to office. And as to the second, it is worthy of -note that the precise words of this general delegation of powers were in the act creating the office of county, superintendent, and immediately preceded it. So that the inference is irresistible that it was designedly omitted. Whether thus omitted because deemed unnecessary, as included in the general clause, or because it was intended not to confer the power, is not so clear. I can hardly' suppose that the latter was the intention, for then, while the power of annulling the license of an unworthy teacher is vested in every town superintendent in the state, however small the town, or sparse its population—and some of them have a population scarcely exceeding one hundred—that power would not exist at all in the city, which has a population of over half a million; for be it remarked, that if the city superintendent has not the power, it is not possessed in the city by any one of the officers of the common schools, not even by implication. On the other hand, with this general clause, it was quite unnecessary to re
Edmonds, Edwards, Mitchell and Roosevelt, Justices.]
Indeed, it seems to me that it is absolutely necessary that the power should be lodged somewhere, and there are no words in the statute relating to the city which confer it on any one, unless these general words confer it on the superintendent. The words are certainly broad enough to confer it, and comprehensive enough to render any special enactment unnecessary. A special enactment, on the other hand, is necessary in the case of town superintendents, because in regard to them there is no such general clause, nor any expression from which the power could be implied.
I therefore am of opinion that the power has been properly exercised by the city superintendent in this case, and the motion for a mandamus must be denied.