Cusack v. Board of Education — 89 A.D. 355

Majority

p. 355

In the Matter of the Application of James Cusack, Appellant, v. The Board of Education of the City of New York and Others, Respondents.

Headnote

Principal of a night school and also of a day school in the borough of Brooklyn, New York city—when removed.from his position in the night-school, heis not “ deprived of employment” within the meaning of section 1090of the revised Ch'eater New York charter.

Prior to May, 1902, there were four evening public high schools in the borough of Brooklyn which received both men and women pupils. The male principal of one of such schools was also the principal of one of the public day schools. About this time the system of night schools was reorganized so that two of , such schools were maintained exclusively for men and two for women. The night school in question was one of the two maintained exclusively for womeu aLd the male principal lost his position and a woman principal was appointed in his place. Subsequently the position of principal of one of the two men's evening high schools became vacant.

Held, that the male principal who had lost his position as night school principal when the reorganization of the high schools took effect was not entitled to be appointed to the vacant position of principal of the last-mentioned men’s evening high school under section 1090 of the revised Greater New York charter (Laws of 1901, chap. 466), which provides, “ In case of the consolidation of schools or of the discontinuance of any school, principals and teachers of good standing, who thereby may be deprived of employment, shall be preferred in appointments to be made in any of the schools of the city;”

That the principal in question had not been “ deprived of employment” within the meaning of the section quoted.

p. 356

Appeal by the petitioner, James Cusack, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of July, 1903, denying the petitioner’s motion for a peremptory writ of mandamus to compel his appointment as the principal of an evening high school in the borough of Brooklyn.

Conrad Saxe Keyes, for the appellant.

James MoKeen [ Walter S. Brewster with him on the brief], for the respondents.

It seems to be conceded that the relator is the principal of one of the public day schools in the city of New York. For some time prior to the month of May, 1902, he was also the principal of one of the evening schools in the borough of Brooklyn. There were then four of such evening schools in that borough receiving both men and women pupils, but the system of night schools was shortly afterwards reorganized, and two of such schools have since been maintained exclusively for men and two for women, in consequence of which change relator lost his position'as night-school teacher. The night school of which he.-was formerly principal lias been devoted since the- reorganization to the education of women, under the charge of a woman principal. He instituted legal proceedings shortly after the change to compel his reinstatement by an appointment to the position of principal of one of the two men’s evening high schools, but his application was finally denied on the ground that the reorganization referred to was a lawful abolition of the position which he formerly held as the principal of an evening high school for the education of pupils of both sexes. (See Matter of Cusack v. Board of Education, 174 N. Y. 136 .)

Pending that litigation a vacancy has occurred in the principalskip of each of the two evening schools for men, and the vacancies have been filled by the. appointment of other teachers who are likewise employed in the day schools, and the present application is to compel the relator’s appointment to one of the places referred to, under a claim that he is entitled to a preference in appointment by the terms of the city charter.

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Section 1090 of the revised Greater Hew York charter (Laws of 1901, chap. 466) provides, among other things, as follows : “ In case of the consolidation of schools or of the discontinuance of any school, principals and teachers of good standing, who thereby may be deprioed of employment, ■ shall be preferred in appointments to be made in any of the schools of the city.” The night' school of which the relator was formerly principal, viz,, a night school for the education of pupils of both sexes, having been discontinued, he claims the right to be preferred in the appointment ■as principal of one of the night schools for men as one who by the discontinuance has been deprived of employment. I do not think the section of the revised charter quoted applies to his case. While he was indeed deprived of a part of his employment by the change referred to, he still remained principal of a day school, and as such remained in the employment of the school authorities. The manifest object of the provision under consideration is. to require the re-employment of worthy teachers who by the operation of a change in the school system may be temporarily thrown out of employment. It is the deprivation of employment which creates the 2'ight to a preference, and not a mere reduction in its scope and extent. If any other purpose was intended it is reasonable to assume that it would have been expressed by some qualifying woi’ds indicating that the prefei’ence should be exercised in the case . of one who, by consolidation of schools or the discontinuance of a school, should be deprived of a part of his employment. The limitations of the preference to those who may be deprived of employment conveys the idea that their condition is to be that of persons who are unemployed, and an individual who is still the principal of &' Hew York city day school can hardly be said to be . unemployed.

The rule, of construction applicable to a statute of the character of the one now under consideration requires that its operation should not be extended beyond the fair and necessary import of its terms. Statutes which confer preferences or special privileges should receive a strict construction. (Black Interp. Laws, § 115.) It would certainly not be a strict construction to hold that the words “ deprived of employment ” mean “ reduced in. employment,” and that as a consequence a preference was intended to be .conferred not only

p. 358

upon those who should be entirely deprived of employment by a change in the school system, but also upon those who by the change might be deprived only of some very insignificant part of their occupation as teachers. A design to confer a general preference in appointment upon the latter class seems unreasonable and should not be presumed in the absence of compelling language. Moreover, it is tó be noted that the wording of the statute furnishes a clear legislative intimation that the changes referred to may not in every instance operate to deprive the teachers of employment within the meaning of the provision giving the right to a preference. It is only upon the teachers who “ thereby mmj be deprived of employment ” that the preference is conferred. But the statute relates to the discontinuance as well as to the consolidation of schools, and it is Obvious that a school cannot be discontinued without depriving the teachers in that school of so much of their employment as that school furnished. The necessary inference that a. school may be discontinued and yet that its teachers may not be thereby necessarily deprived of employment within the meaning of the section indicates that the .contemplated deprivation is not pro tanto but is general ór entire.

In any other view the scheme of the provision would be not to secure occupation for worthy teachers who, without fault of their own, might be actually thrown out of employment, and who in any enlightened and' humane system would be entitled.to the fostering care of the law, but would be confined to the mere purpose of preventing a reduction in the pay of teachers, the extent of whose employment in any way and in any degree, no matter how slight, might be affected by the change. In this view it would follow that a teacher who had ample employment under the board of education, but who in addition was teaching some one study in a school which was afterwards discontinued, and who was thereby deprived of a very small part of his salary, would from that slight deprivation become entitled,, not to an opportunity to do the same teaching as that of which he had been deprived, in another school, but would become and be at once entitled to “ be preferred in appointments to be made in any of the schools of the city.” The reward seems far too great as compensation for the.comparatively trivial deprivation. Applying this, view further to the appellant’s case, it would have led to. a singular result

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had the board of education discontinued the evening schools altogether. By the terms of section 1069 of the revised charter (supra) the board is empowered but not compelled to maintain these schools, and had it discontinued them it would follow under the appellant’s contention that he would have been entitled to a second or additional principalship in the day schools to replace the one lost by the discontinuance. This surely is something not contemplated by the statute, and it aids, to support that construction of the law which limits its operation to those teachers who by either consolidation or discontinuance of schools may have been deprived of employment in the sense that they are thereby rendered idle and unemployed, and who if in good standing are justly and equitably entitled to the privilege of being restored to usefulness by a preference in the matter of appointments to be made in any of. the schools.

The order should be affirmed.

Bartlett, Woodward, Jenks and Hooker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Cusack v. Board of Education 174 N. Y. 136 N.Y. 1903-03-17 p. 356