People ex rel. Green v. Board of Education — 33 N.Y. St. Rep. 30

Majority

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The People ex rel. Henry J. Green, Resp’t, v. The Board of Education of the City of Cohoes et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed September 25, 1890.)

Headnote

Mandamus.

A mandamus was granted requiring the board of education to meet, organize and appoint a president. The board appealed. Pending the appeal, the board, under protest, a stay having been denied, met and organized. Upon the hearing in this court, counsel stated that they desired to present the question whether the president was to be elected by the board, or by the common council and the board. Held, that, as the board had organized, the decision of this court would have no effect; and that, therefore, it was improper to make a decision. "

Appeal from an order at special term requiring the board of education of Cohoes to convene and organize. The board appeal.

i Henry A. King, for app’lt; George H Fitts, for the City of Cohoes, app’lt; P. D. Niver and J. F. Orawford, for resp’t.

A mandamus was granted by Judge Eursman requiring the board of education to meet at a certain time and organize and appoint a president. The board appealed. On the coming on of the argument, the relator objected to the hearing of the appeal, and moved to dismiss on the ground that the board had obeyed the wilt. The fact that it had done so was admitted in court by the board. It was further stated by the counsel of the board, and this was not denied, that an application was made

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to Judge Fursman for a stay of proceedings, and that he denied it; and that an application was then made to another judge of the court for a stay, and that it was denied because Judge Furs-man had already refused such a stay. It was further stated that, as no stay could be obtained, the board was obliged to obey the writ, and did so under protest.

The counsel further informed the court that the question which would be presented, if the appeal was heard, was whether under the charter of Cohoes the president of this board was to be chosen by the board or by a body composed of the common council and that board; that the question was important and a decision was greatly desired.

This statement makes us desirous, if it be proper, to dispose of the question which counsel desire to present. But we are met with the difficulty that no decision which we can make can have practical effect in this proceeding. The board has elected a president. If we should hold that the mandamus ought not to have been granted, we could not undo this action. Even if our opinion should state that the president could be appointed only at the joint meeting of the common council and the board, we could not make an order ousting the president who has been appointed. The statement would be an expression of our opinion as to the result of a proceeding of quo warranta. And as an expression of such opinion it might be followed if a quo warranta against that president was brought.

But it is not well for courts to write opinions which can have no practical effect in the case before them. Our business is to decide controversies, not to write essays.

The defendant’s counsel urges that to dismiss the appeal nullifies the right of appeal. But it should be observed that there may be a mandamus which has been obeyed where the general term by its reversal can redress the wrong. But in the present case, if we should think that the mandamus was improperly granted, we do not see that a reversal of the order granting it would annul the fact that the board of education did on a certain day appoint a president. WhotlioS that act was valid or not must be determined in a proceeding to which such president is a party. The relator is only an elector of the city of Cohoes and the decision between him and the board of education could not be binding on the president who has been appointed.

The appeal is dismissed, without costs.

Lamdom and Mayham, JJ., concur.