People Ex Rel. Peixotto v. . Bd. of Education

Cuddeback, J. The proceeding of the board of education involved simply a matter of school discipline, and it is not subject to review by mandamus. *465 Section 1093 of the New York charter provides that a district superintendent may prefer charges to the board of education against a teacher in the public schools for gross misconduct, insubordination, neglect of duty, or general inefficiency. The board of education on receiving such charges may try the case or refer it to a committee. But the penalty of dismissal can be imposed only on a majority vote of all the members of the board. The law also provides that the decision of the board of education may be reviewed on an appeal by the state commissioner of education. On April 22, 1913, one of the district superintendents preferred charges against the relator for “neglect of duty,” and specified as the ground of the charges absence “from duty since February 3, 1913, for the purpose of bearing a child. ’■’ On May 8 following the district superintendent preferred new charges against the relator, specifying as the ground thereof absence “ from duty without leave since on or about February 3,1913,” omitting the last words in the previous specifications. These second charges are mentioned, but they are of no real importance in the. case. The omitted words simply anticipated what the relator’s excuse would be. The relator was tried before the committee on elementary schools, and the facts developed as stated in the charge of April 22. The relator was found guilty of neglect of duty with a recommendation that she be dismissed from service. The recommendation of the coromittee was adopted by a majority vote of the board of education and the relator was accordingly dismissed. She did not appeal to the commissioner of education but brought this proceeding. The argument of the relator’s counsel is that absence from duty for the reason specified in the charge is not neglect of duty under section 1093 and, hence, that the action of the board of education in dismissing her was illegal and unwarranted in law. *466 It is true, of course, that the relator was absent from her school without leave for the period mentioned— nearly three months. That was the gravamen of the charge against her, and brought her case within the jurisdiction of the board of education. The legislature could have provided that the relator might be dismissed for no cause whatever. She had no vested right in the position of teacher. Section 1093 of the city charter has made neglect of duty ground for dismissal without any qualifying words. Absence on account of serious illness or for any other reason, high or low, leaves the duties of the position unperformed, and, therefore, neglected by the absentee. The statute has lodged with the board of education the power of deciding cases that thus fall within section 1093, and the board is required to pass upon the excuses offered in any case of absence. In the proceeding under review the board of education discharged its duties fairly and the courts cannot by mandamus reverse the conclusion reached. The general rule is that mandamus will not lie to review the determination of public boards or officers in matters involving the exercise of discretion or judgment, if they have proceeded within their jurisdiction, and in substantial compliance with the forms of law. (People ex rel. Empire City T. Club, etc., v. State Racing Com., 190 N. Y. 31; Matter of Dill, 185 N. Y. 106; People ex rel. Dietz v. Easton, 13 Abb. Pr. [N. S.] 159; People ex rel. Kennedy v. Brady, 166 N. Y. 44, 49.) The relator also argues that the by-laws of the board of education contain no rule which she has violated. If a rule is necessary at all, it may be found in subdivision 4, section 44 of the by-laws, made by .the board of education. That subdivision says: £ ‘ Teachers ’ absences from duty * * * may be excused without pay by the local school boards on written application indorsed by the principal and the district superintendent. No such absences, however, shall be excused without approval of *467 the board of superintendents. ” The relator might have been dismissed under that subdivision. Her dismissal can also be sustained under section 1093 of the charter. The relator made no attempt to comply with any rule of the schools. Apparently, all she did was to inform the board of education that she was suffering from some affection of the ears and nose, and that she was going to Lakewood, New Jersey. The order appealed from should be affirmed, with costs.