108 N.Y.S. 49 | N.Y. App. Div. | 1908
In her petition for a writ of certiorari the relator alleged that she was the holder of á diploma of one of the State Normal schools licensing her to teach in any common or public school in the State of New York.; that for several months in the spring of 1896 she
The powers of the board of examiners with respect to certificates of equivalents are specified in section 1091 of the Greater New York charter (Laws of 1901, chap. 466), which section provides the minimum salaries that shall be paid to different members of the teaching staff and to the teachers of the elementary and the highl- and training schools.- The section provides as follows:The board
The appeal by the deféndants from the order directing that a writ of certiorari be issued, presents for our determination the question whether the action of the board of examiners of the board of education, in refusing the certificate asked for, is final, or whether the
A writ of certiorari may only be issued as permitted by section 2120 ¿f the Code, of Civil. Procedure, which allows, it in two' instances, namely, where the right, thereto, is, conferred by statute, or where the- writ. may be issued at common law" and has not been expressly taken’ away by statute.' There is mo -claim in this case that: the right' to the’ writ is .conferred by .statute; 'the question then is whether the writ is allowable at common law. ' :
The common-law writ of'Certiorari issues to review -only the decisions of inferior judicial • or quasi judicial tribunals. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; People ex rel. Trustees v. Board of Supervisors, 131 id. 468; People ex rel. O'Connor v. Supervisors, 153 id. 370; People ex rel. Schau v. McWilliams, 185 id. 92.) The question which presents itself, therefore, is whether or- not the action -of the board of examiner's. of the board of- education, in refusing the relator a certificate that-her prior experience is equivalent to any expei'ience in the high and training schools, was judicial or- quasi-judicial. It does not appear that any testimony was taken-by the. hoard ,of examiners in the determination of its . action upon the relator’s petition; the action of the board Was the result not of conflicting -claims- urged by adversaries,, nor the finding of a fact based upon the presentation of conflicting evidence, but- rather was a.decision based, upon the .exercise of discretion and judgment peculiar to the members of the. board in determining -the character- of experience the relator had had as a teacher in different schools, both rural and ' urban. The exercise of this discretion and judgment-is, not a judicial determination of the question presented to the board.
In People ex rel. Buckley v. Roosevelt (19 App. Div. 431) it was
In People ex rel. Mack v. Burt (65 App. Div. 157; affd., 170 N. Y. 620) it was said that the action of the State Civil Service Commission and the municipal civil service commission of the city of New York in including in Schedule B of the classification of the positions in the department of health a position of anti-toxin accountant was administrative rather than judicial in its character, and could not be reviewed by certiorari.
In Matter of Armstrong v. Murphy, No. 2 (65 App. Div. 126), it was held that the determination of the police commissioner of the city of New York in refusing to grant a theatrical license under section 1473 of the Greater New York charter (Laws of 1897, chap. 378) was hot a judicial act, was discretionary with the commissioner as an executive, administrative or ministerial act, and hence not reviewable by certiorari.
In Matter of Walker v. Maxwell (68 App. Div. 196) we find a case iriore nearly like the one in hand, where this court determined that the action of the board of examiners of the board of education of the city of New York, in refusing a teacher in one of the public schools of the city a license permitting her to teach a higher grade, is in no sense judicial'but purely executive, administrative or ministerial, and hence a writ of certiorari cannot be issued to review such action. The character of the act of the board of examiners in passing upon the relator’s application for a certificate of equivalents, as in this case, is no more judicial in its character than the act of the same board upon an application for a license to teach a higher grade; and in fact as to the former the statute not only does not confer the right of review- by certiorari but, --on the other hand, declares that such certificate made by the board of examiners shall
Our conclusion is that the writ should not have issued, and the order should be reversed, with ten dollars costs and disbursements,' and the application denied, with costs.
Woodward, Jenks and Miller, JJ., concurred; Rich, J., dissented.
Order reversed, with ten dollars costs and disbursements, and application denied, with costs.