177 N.Y. 494 | NY | 1904
In February, 1891, the relator was appointed a teacher in one of the public schools of the then city of Brooklyn. At that time there was a by-law of the board of education of the city which provided: "Should a female principal, head of department or teacher marry, her place shall thereupon become vacant, but her marriage shall not operate as a bar to her reappointment, should it be deemed to the best interests of the school to retain her services." After the consolidation of the city with the city of New York, the borough school board adopted or continued that by-law. On January 21, 1902, the relator married. Thereupon she notified the local committee of the school in which she taught, and applied for reappointment or continuance in her position. She asserts that she was reappointed by the borough board, but this fact was put in issue by the affidavits submitted on behalf of the respondent. Still, as she alleged, and the allegation was not denied, no one was appointed in her place and she continued to discharge all the duties of her position as teacher, and no action has been taken by the board of education to dismiss her from her employment. Under the by-laws of the city board of education, it was the duty of the respondent to certify to the auditor the names and salaries of the teachers, and without such certification teachers were unable to draw their pay. On an affidavit stating those facts the relator applied to the Special Term for a peremptory writ of mandamus, directing the respondent to recognize her as a teacher of the public schools and to certify her name to the auditor that she might be paid her salary. As already stated, the affidavits on behalf of the respondent controverted none of the facts stated by the relator, except those referring to her reappointment. The Special Term granted the peremptory writ as asked for by the relator, on the ground that her employment could not be terminated without affirmative action taken by the borough board of education to dismiss her. On appeal the Appellate Division reversed the order of the Special Term, holding that the relator's marriage ipsofacto terminated her employment, but directed that an alternative *496 writ issue to determine the controversy as to her reappointment. The Appellate Division thereafter allowed an appeal to this court and certified three questions for determination: First. Is the by-law of the former borough school board of Brooklyn above recited a reasonable regulation? Second. Is the aforesaid by-law in conflict with section 1114 of the charter of 1897 of the city of New York providing for the removal of members of the educational and teaching staff after trial and hearing upon charges and prescribing the grounds of such removal? Third. Can such by-law operate to vacate the position of women principals and teachers without the taking of affirmative action by the board of education or the borough school board as prescribed by the charter of the city of New York looking to their removal?
It is not necessary nor would it be profitable to discuss the question whether a by-law providing that a female teacher shall by marriage vacate her employment is reasonable or not, nor if it be assumed that such a by-law would be reasonable, to consider whether the particular by-law in this case, which in effect provides that by marriage a female teacher's employment shall cease or not at the option of the borough board, is reasonable, as we are of opinion that under the charter the board had no power either to pass a by-law on the subject or to provide for the compulsory termination of the employment of the teacher except in the manner pointed out by the statute. Prior to the creation of the present city the public school system of the old city of New York was governed by the provisions of the Consolidation Act of 1882 (Chap. 410). Section 1038 of that statute empowered the board of trustees for the ward, by a vote of their whole number, to remove teachers other than principals and vice-principals provided the removal was approved by a majority of the inspectors for the district, subject to a right of appeal to the board of education, which might reinstate the teacher. Section 1042 authorized the board of education by a three-fourths vote to remove any teacher on the recommendation of the city superintendent or of a majority of the ward trustees or of the inspectors of *497
the district. It is very clear that these provisions of the statute were exclusive and that a teacher could be removed only in the manner therein prescribed, and so it has been held by the courts. (Steinson v. Board of Education of N.Y.,
It follows that the order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs, that the first question should remain unanswered, that the second question should be answered in the affirmative and the third in the negative.
PARKER, Ch. J., HAIGHT, MARTIN, VANN, JJ. (and GRAY, J., in result on the ground that affirmative action was necessary on the part of the board of education), concur; O'BRIEN, J., dissents.
Order reversed, etc. *499