People ex rel. Walrath v. O'Brien

112 A.D. 97, 97 N.Y.S. 1115, 1906 N.Y. App. Div. LEXIS 609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1906
• Status: Published

Opinion

Cochrane, J.:

The purpose of this proceeding is to review the action of the respondents, composing the board of education of the city of Troy, in removing the relator from his position as principal of> the high school in said city, which position he held from about March 1,1897, until the timé of his removal by the respondents as aforesaid, which occurred in December, 1905.

By chapter 560 of the Laws of 1902, which applies only to some of the cities of the second class, including the city of Troy, it is provided, among other things, that “ All principals shall hold their positions during good behavior and shall be removable only for cause, after a hearing, by the affirmative votes of at least a majority of the board” of education.

The petition of the. relator herein shows that charges were preferred against- him to. the board of education; that a hearing on such Charges was' accorded to him by said board, and that after- such hearing he was removed asfaforesaid. . Such hearing 'constituted a trial, and the action of the board in removing the relator from his position was a decision that such charges were properly made and that they constituted just cause for his removal. The relator, feeling himself aggrieved by Such decision, seeks by this proceeding to have it reviewed by the court. ,

Title 14 of' the" Consolidated School Law (Laws of 1894, chap. 556) provides that, “ Any person conceiving himself aggrieved in consequence of any * *-• * official act or decision concerning any other matter under this act or any other act pertaining to common schools may appeal to the Superintendent of Public Instruction who is hereby authorized arid required to examine and decide the same; and his decision shall be final and conclusive and not subject-to question or review in any place or court whatever.” By the same, title the Superintendent of Public Instruction is given power in-reference to such appeals to make all orders which may in his judgment be proper or necessary to give effect to his decisions. Chapter 40 ‘ of the Laws of 1904 abolished the. office of Superintendent of'Public Instruction but provided that the powers and duties of his office shall be exercised and performed by the Commissioner of Education therein provided for, so that appeals may now be-taken to the Com.missioner of Education in the.samé cases where before the enactment' of the lasbmetitioned statute such appeals might have been taken to the Superintendent of' Public Instruction.

The' relator herein concedes that the public schools of Troy, including the Troy High School, are common schools*-and that chapter 560 of the Laws of 1902,, above referred to, relating to cities of the second class,, including the city of Troy, is an act pertaining to . common school's.

It thus.appears that the relator, if aggrieved^ may have complete 'and ample redress by an,appeal to the Commissioner of Education,, and as rió statute to'which we aré referred authorizes a writ" of certiorari in a case like this, section 2122 of the Code of Civil Prticed-' ure applies, which, so far as pertinent to this case, is as follows: “Except as otherwise expressly prescribed by a statute, a writ of' certiorari cannot be issued * * * where the determination can be adequately reviewed by an appeal to a court or to some other body or officer.”

The determination of the board of education which the relator complains of can be adequately reviewed by the State Commissioner of Education, and hence the relator is not at liberty to avail himself of a writ of certiorari,'and the order quashing such writ which had previously been allowed was properly granted.

The .order must be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.