144 N.Y.S. 87 | N.Y. Sup. Ct. | 1913
This is an application for a peremptory writ of mandamus directing the respondent, the
For eighteen years prior to February 3, 1913, relator had been a teacher in the public schools of the city of New York. During this period she paid into the pension fund for teachers her pro rata assessment. Her dismissal, if valid, involves a forfeiture of her rights in the pension fund for teachers. The relator is a married woman, living with her husband. On February 3, 1913, relator absented herself from the school to which she had been assigned, claiming to have been ill with some affection of her ears and nose, and immediately gave notice to the proper school authorities of her absence and the cause therefor, .and accompanied this notice with a physician’s certificate substantiating her claim. On April 7, 1913, relator gave birth to a child. On April 22, 1913, relator received from district superintendent Taylor a notice suspending her from duty. To this notice was attached a copy of the charges alleging “ neglect of duty,” and the specification was as follows: “ The reason for this action is the continuance of absence of Mrs. Peixotto from duty since February 3, 1913, for the purpose of bearing a child. ’ ’ On May 8,1913, relator received another notice alleging “ neglect of duty,” and specifying the neglect as “ absence from duty without leave from February 3,1913.” On June 10, 1913, relator was tried by the elementary schools committee upon said charge of “ neglect of duty.” On June 25, 1913, said committee submitted to the board of education a report and resolutions purporting to find relator guilty of said charge and recommending the adoption by respondent of its report and
In the majority report it is said ” in stating the cause of her absence she failed to state the fact of her pregnancy. While the committee does not approve of this conduct and in fact condemns it, it desires to base its action not on the ground of this concealment, but wishes the question at issue to be fairly and squarely met and to present to this board whether under the circumstances (aside from the concealment of the approaching birth) this teacher and all others similarly situated should be retained in the service.” The respondent approved and adopted the majority report on October 8, 1913. The original notice preferring charges against the relator, the elaborate reports of the committee of elementary schools to the respondent, and the action of the respondent in adopting the majority report leave no room for doubt that the reason for the suspension and dismissal of the relator was correctly stated in the original no
The attempt of the counsel for the respondent to make it appear that the fact that the relator gave birth to a child was a circumstance which in no way influenced the action of the respondent, and that its action was based solely upon the finding of “ neglect of duty ” independent of that fact, is controverted by the record and is inconsistent with the declared purpose of the majority report to have the question at issue between the majority and minority presented and determined. No one who is not desirous of avoiding a decision upon the merits can read this record without being satisfied that the real point in dispute is whether the respondent had the-legal right to dismiss relator for “ neglect of duty ” on account of absence for the purpose of bearing a child.
The learned counsel for the respondent contends (1) that the Supreme Court has no jurisdiction of the cause, and (2) that even if the Supreme Court has jurisdiction certiorari and not mandamus would be the appropriate remedy. Before discussing the case upon the merits it is necessary to consider these objections: (1) The claim that the Supreme Court is without ■ jurisdiction is based upon the contention that the state commissioner of education alone can review the action of the respondent.
The provision contained in section 1093 of the Greater New York Charter that the report of the committee holding the trial “ shall be subject to final action by the board * * * except as to matters in relation to which ” an appeal may be taken to the commissioner of education, and the language of section 880 of the Education Law that the decision of
Under the Constitution of the state the Supreme Court has general jurisdiction in law and equity (art. 6, § 1) and its jurisdiction cannot be limited by the legislature.
There is another reason why the relator cannot be denied the right to appeal to the courts, and that is that since the death of Dr. Draper there has been in this state no state commissioner of education. One has been appointed, but he has not as yet qualified. While the office of state commissioner of education remains vacant the respondent’s action is not subject to review by any person or board engaged in educational work in this state.
(2) The objection that the relator should seek redress through a writ of certiorari rather than a writ of mandamus is not well taken. These writs are often regarded as possessing similar attributes, but the points of difference between them are well recognized. The office of the writ of certiorari is to revieio the judicial action of public officers or bodies -exercising under the laws judicial functions, and can never be invoked to review acts of an executive, legislative or administrative character, even though these acts may involve the exercise of discretion. People ex rel. Trustees v. Board of Supervisors, 131 N. Y. 468, 471.
The office of a writ of mandamus is to compel the action of public officers or bodies exercising executive, legislative, ministerial or administrative functions, where the act of such official or body violates the clear
If, as is claimed by this relator, the respondent in dismissing her acted illegally and without jurisdiction, mandamus is the proper remedy. If, on the other hand, the respondent acted within the law and in the exercise of its authorized discretionary powers, then it is manifest that the relator’s rights have not been violated and that there is no occasion to resort either to mandamus or certiorari. Thus the question is squarely presented for determination. Did the respondent have the legal right to dismiss relator for “ neglect of duty ” because of the temporary absence of relator for the purpose of bearing a child? It should be borne in mind that the courts are not to 'determine questions presented according to their individual views, nor are they authorized arbitrarily to declare whether a particular act is in accord with their own conceptions of public policy. All such considerations are for the legislative rather than the judicial branch of the government.
The question for the court to answer in reference to the action of this respondent is simply “Was it lawful? ” If it was lawful, the court must so declare it, regardless as to whether it was a wise or unwise act. It is was unlawful, the duty'of the court is to so pronounce it and to direct the reinstatement of this relator. Under section 1093 of the Greater New York Charter a principal or teacher may be removed for
A teacher who is guilty of u neglect of duty ” may, of course, be removed, regardless of the fact that she is a mother. No one disputes that proposition. Under the by-laws of the respondent, absence per se is not “ neglect of duty.” Whether or not it constitutes “ neglect of duty ” depends upon the circumstances of each particular case. The by-laws of the respondent recognize that there are occasions where a principal or teacher is necessarily and excusably absent. Indeed, the by-laws make definite provisions for such cases. Cases coming within these provisions are clearly not to be construed to constitute ‘ ‘ neglect of duty.” Section 44 of the by-laws of the respondent prescribes the conditions under which a principal or teacher may be absent with and without pay. Subdivision 5 of that section provides that absence may be excused “ for any of the following reasons: (a) Serious personal illness, (b) death in the teacher’s immediate family, (c) compliance with the requirements of a court, (d) quarantine established by the board of health.” Prom the provisions of section 44, it appears that absence on account of “ serious personal illness ” is not ground of removal and that no pay is allowed during absence, and that a refund can only be had upon application after the termination of the absence, and that no refund shall be allowed for absence exceeding ninety-five days in any one year. While prolonged absence may in some cases furnish ground for removal (O’Leary v. Board of Education, 93 N. Y. 1), yet it is settled that absence caused by
If relator’s absence was caused by “ serious personal illness ” of a temporary character she could not be dismissed either upon this ground or upon the ground of “ neglect of duty.” It requires no strained or forced construction to hold that the words “ serious personal illness ” include illness caused by maternity. The absence of the relator was, therefore, excusable under the by-laws of the respondent, unless it can be inferred that the legislature in using the words “ neglect of duty ” in section 1093 of the Greater New York Charter intended to include therein absence caused for the purpose of bearing a child. There is nothing in the language of the charter which would justify the assumption'that by the use of the words “ neglect of duty ” the legislature intended to include the case of a married teacher whose absence was caused in order to give birth to a child. To impute such an intention to the legislature would be a gratuitous and arbitrary attempt on the part of the court to legislate and to read into the law a provision which there is no reason to believe the legislature would have inserted. The policy of our laws favors marriage and the birth of children, and I know of no provision of our statute law or any principle of the common law which justifies the inference that a public policy which concededly sanctions the employment of married women as teachers treats as ground of expulsion the act of a married woman in giving birth to a child. Whether the legislature should exclude mar
It is clear that absence caused by personal illness of the teacher, not the result of maternity or of fault or wrongdoing on the part of the teacher, is not “ neglect of duty” within the statute and by-law. Can it be correctly said that if such illness is the result of maternity the absence resulting is “ neglect of duty? ” If so, then it is not the absence of the teacher per se which constitutes “ neglect of duty ” or the fact that the absence is caused by illness, but the charge of “ neglect of duty ” is predicated solely upon the fact that the cause of the illness is maternity. To so hold is to construe the statute and by-law to mean that absence resulting from personal illness from any cause other than maternity or the fault or wrongdoing of the teacher is excusable, but that absence resulting from illness caused by maternity is inexcusable and, therefore, “ neglect of duty.” Such a construction of the statute and by-law is unreasonable. ■ It is much more in accord with reason to hold that the absence of a teacher resulting from personal illness, including illness caused by maternity, is ex-
The fact that the personal illness resulting in the absence of the relator was caused by maternity did not on that account render it inexcusable, and relator ’s absence did not.because of that fact constitute “ neglect of duty ” as those words are used in the statute.
It is pure sophistry to argue, as does the learned counsel for the respondent in his brief, that maternity is an indication of health and, therefore, cannot be said to cause “ serious personal illness.” The same argument was urged in Queen v. Wellings, 3 Q. B. Div. 426, by the counsel for the defendant in that case, but it was overruled by the Court of the Queen’s Bench in the opinion of Lord Coleridge, C. J., who expressed the unanimous decision of the court.
If, however, there was no by-law of the respondent excusing absence due to “serious personal illness,” it might well be held, in view of the duration and of the nature of the relator’s employment, that the law would excuse temporary absence resulting from any personal disability not caused by the fault or wrongdoing of the employee. As maternity cannot be attributed to the fault or wrongdoing of the relator, and as her absence was due solely to that cause, such an absence cannot be held to be “ neglect of duty.”
It is at least open to question whether if the contract with the relator had expressly provided that it should be terminable in the event of the relator giving birth to a child such a condition of the contract would-be valid, and certainly in the absence of express provision the courts will not imply that so odious a condition was a part of the contract.
Motion for a peremptory writ of mandamus is granted.
Motion granted.