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People ex rel. Purcell v. Simonson

72 N.Y.S. 957 Court N.Y. App. Div. Decision date 1901-11-15 English

Delivered by SEWELL, J.

Contents

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PEOPLE ex rel. PURCELL v. SIMONSON et al.
(Supreme Court, Appellate Division, Second Department.
November 15,1901.)

Headnote

Certiorari—School Board—Dismissing Janitor.
New York City Charter, § 1075, provides that all janitors of public schools may be removed by the school board on complaint of certain persons. Held, that where complaint was made against a janitor, and she was removed after a hearing, such hearing did not render the action of the board judicial, so that certiorari would lie to review it.
Certiorari by the people, on the relation of Margaret E. Purcell, to review the action of F. De Haas Simonson and others, the school board of the borough of Queens, in dismissing relator from the position of janitor of public school No. 1, borough of Queens.
Writ dismissed.
I. Newton Williams, for relator.
William J. Carr, for respondent.

The relator was appointed janitor of a public school in the year 1896, and was transferred to the service of the

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school board of the borough of Queens by section 1536 of the Greater New York charter (chapter 378, Laws 1897). In January, 1900, complaint was made against her to the school board, charging her with “entering the high school building at Long Island City and assaulting the janitor.” The charges were referred to the .committee on school houses and sites, and the relator was notified to appear' and answer. She appeared with counsel before the committee at the time and place mentioned in the notice, and the committee publicly heard the proofs and allegations in support of the charge, and the evidence offered by the relator. The committee determined and reported that the relator was guilty as charged, and recommended a dismissal. The return shows that the charges and proceedings were considered at a special meeting of the school board, that it was determined that the relator was guilty, and that a resolution was passed adopting the report of the committee, and dismissing the relator as janitor.

It is claimed by the relator that the determination of the school board was against the weight of evidence, that certain legal rules were violated in the proceeding before the committee, and that the action of the school board can be reviewed by certiorari. It is not claimed that there is any statute that confers the right to the writ for the purpose of reviewing the action of the school board in dismissing the relator, so the question arises whether the writ issued at common law in cases of this character. People v. Brady, 166 N. Y. 44 , 59 N. E. 701 . The rule is elementary that a writ of certiorari is appropriate only to review the judicial action of inferior courts, public officers, or bodies exercising under the law judicial functions. People v. Board of Sup’rs of Queens Co., 131 N. Y. 468 , 30 N. E. 488 ; People v. Walter, 68 N. Y. 403 . Prior to January 1, 1898, the relator held her position at the pleasure of the appointing power, as there was no statute declaring the tenure or term of employment, or restricting the right of removal. People v. Thompson, 94 N. Y. 451 ; People v. Robb, 126 N. Y. 182 , 27 N. E. 267 . The only statutory provisions which have since affected this office or position are section 1536 of the charter, under which janitors of public schools and other subordinates continue, as before, removable at the pleasure of the appointing power (People v. Cram, 164 N. Y. 166 , 58 N. E. 112 ), and section 1075, which is to the same effect. This section provides that:

“Janitors shall be appointed by the school board on the nomination of the superintendent of school buildings. All such nominations shall be from a preferred list of duly qualified persons certified to and on file in the office of superintendent of school buildings. Janitors may be removed by the school board on complaint of the principal of the school, the superintendent of school buildings, or a member of the school board.”

The school board having the power to remove a janitor on the- complaint of one of its members, it follows that the relator was not entitled to a trial or judicial hearing before removal. The fact that she was given a hearing, or that one of the by-laws of the school board provided for a reference of all complaints and a hearing by a committee of its own body, did not make the action of the school board ju

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dicial. The evident purpose of the by-law in question was to regulate the procedure, and relieve the school board of inquiring or determining in respect to the truth of a charge. It does not profess to abrogate or restrict the power of the school board to summarily remove a janitor upon a complaint as provided in section 1075 of the charter, and that it was not intended to have that effect is apparent from the fact that this section is made one of the by-laws of the school board. The school board having complied with all the formalities of the statute, this court has no power to deal with the facts of the case, or review its action in removing the relator. As this leads to a dismissal of the writ, it is unnecessary to consider the other questions raised upon the argument.

The writ should be dismissed, with $10 costs and disbursements. All concur.

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