Bristol v. Buck

201 A.D. 100, 194 N.Y.S. 53, 1922 N.Y. App. Div. LEXIS 6262

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1922
• Status: Published

Opinions

Cochrane, P. J.:

The Buffalo City Charter (Laws of 1914, chap. 217, § 294 et seq., as amd. by Laws of 1918, chap. 534, and Laws of 1919, chap. 56) provides for a Public School Teachers’ Retirement Fund of that city. The appellants herein under the provisions of said charter are the trustees and custodian respectively of such fund.

Article XLIII-B of the Education Law provides for a State Teachers’ Retirement Fund for Public School Teachers. The respondents herein under said act constitute the Retirement Board of such Retirement System.

Section 1109-b of said article XLIII-B as it existed on April 29, 1921, provided as follows: “This article shall not apply to any county, city or district in which the teachers in the public schools thereof are required or authorized to contribute to a teachers’ retirement fund, or in which such teachers are entitled to annuities or pensions, in accordance with any special or local act applicable to such county, city or district. Provided, that whenever the State Teachers’ Retirement Fund Board is satisfied that more than two-thirds of all the teachers employed in the public schools of any such county, city or district are willing to become subject to this article, as shown by a petition duly signed and verified by such teachers, such Board shall issue its order directing that on and after the date thereof this article shall apply to such county, city or district.” The section further provided that thereupon the provisions of said article should apply to such county, city or district and that the treasurer or other custodian of the local fund should pay the same into the State Treasury to be credited to the State Teachers’ Retirement Fund. (See Laws of 1911, chap. 449.)

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On said April 29, 1921, the State Teachers’ Retirement Fund Board on petitions of more than two-thirds of the public school teachers of Buffalo pursuant to the provisions of section 1109-b above quoted made an order that on and after July 1, 1921, the provisions of the State law should apply to the city of Buffalo. Demand having been made of the appellants as trustees and custodian respectively of the Buffalo fund that the same be paid into the State Treasury and such demand having been refused a mandamus order has been issued in this proceeding requiring such payment. From such order an appeal comes to this court.

The petition on which the State Teachers’ Retirement Fund Board made its order extending the provisions of the State law to the city of Buffalo were signed separately by more than two-thirds of the public school teachers of the said city and were acknowledged by them. They were not verified as the statute requires. The respondents contend that the word “ verified ” does not always or necessarily imply a statement under oath; that a verification may have a different meaning depending on the context in which the word appears or the circumstances or nature of the matter under consideration to which the word applies. We yield to this contention as a general proposition although we think that as used in a statute the word ordinarily imports a verity attested by the sanctity of an oath. The question here, however, is not how the word should be construed in this statute because these petitions in question are not verified in any manner whatsoever. The acknowledgment is an authentication or verification of the signature of the petitioner but it does not extend to the petition. It establishes merely that the petition was “ duly signed.” It proves the identity of the person whose name appears on the petition and that such person signed the petition. But it goes no further. Moreover if regarded as a verification it is such by the notary public while the statute requires that the verification shall be by the teachers. The respondents are inaccurate in their statement that the petitions express nothing but a willingness on the part of the teachers to enter the State system and that there is, therefore, no fact to be verified. The petitions establish that the petitioners are teachers employed in the public schools of Buffalo and that in number they constitute more than two-thirds of all the teachers so employed. It is only on proof of these facts established by such "a petition in the manner prescribed by the statute that the State Board is authorized to act. Furthermore, if it should be held that the petitions denote nothing more than a willingness on the part of the petitioners to become subject to the State system that would not obviate the plain requirement of the statute. That requirement is that the petition shall be “ duly signed and verified by such teachers.” There must be a signature and also a verification and each by the teachers. Liberality in construction of statutes may not be stretched to the point of disregarding their plain requirements. We are no more at liberty to disregard words contained in a statute than we are at liberty to interpolate words therein. In no aspect of the situation have these petitions been “ verified by such teachers.” There has been a non-compliance with the statute and the State Board was, therefore, unauthorized.to make the order extending the State system to the city of Buffalo and the Special Term was unauthorized to grant the order requiring the appellants to pay into the State Treasury the Public School Teachers’ Retirement Fund of Buffalo.

The order should be reversed, with costs, and the application dismissed, with fifty dollars costs and disbursements.

All concur, except Henman, J., dissenting, with an opinion.

See Education. Law, § 1102, subd. 4, and § 1109-1, as added by Laws of 1920, chap. 503.— [Rep.