FIRST DEPARTMENT, DECEMBER TERM, 1874. approval of the inspectors, and where they are satisfied as to the incompetency of a teacher, with or without evidence, their power to remove him therefor cannot be questioned. (Per LAWRENCE, J.) The power of the board of education to hear appeals from the action of the trustees, in removing teachers, is discretionary and not obligatory, and this court has no power to reinstate a teacher, by the reversal of the action of the board of education and of the trustees. (Per LAWRENCE, J.) Trustees are to be deemed to have notice of a stated meeting held pursuant to their by-laws. CERTIORARI to review the proceedings of the board of education on appeal from an order of the trustees of the Fourteenth ward of the city of New York, removing the relator from her position as an assistant teacher in one of the public schools in the said ward. William H. Rooney, for the relator. E. Delafield Smith, for the respondent. DAVIS, P. J.: The relator was an assistant teacher in the male department of grammar school No. 21, in the Fourteenth ward of the city of New York, on the 29th of January, 1874. The board of trustees of common schools of the Fourteenth ward, at a meeting held by them, passed the following resolution: "Resolved, that Miss Catharine Murphy, sixth assistant teacher in the male department of grammar school No. 21, in accordance with the recommendation of the city superintendent be, and she is hereby removed for incompetency." On the thirtieth of January a copy of this resolution was served on the relator, and another copy was filed with the clerk of the board of education. On the fourth day of February the relator appealed to the board of education. On the sixth of February a majority of the inspectors of the district approved the removal of the relator, in writing, by signing a certificate to that effect, at the bottom of the copy of the resolution of the trustees, then on file with the board of education. The board of education, pursuant to section 45 of the rules and regulations of said board, referred the appeal to the committee on teachers. The relator, pursuant to notice, appeared before the said committee, on the 10th of February, 1874, in person and by coun FIRST DEPARTMENT, DECEMBER TERM, 1874. sel, and filed with the committee a series of objections to the proceedings of the trustees and inspectors, and to the regularity of her removal; upon which she insisted that, "the removal, for all the purposes of this appeal, was and is irregular, and the appeal must therefore be sustained." The committee overruled the objections and adjourned the hearing of the appeal to the seventeenth of February. On the seventeenth of February the relator again appeared, and presented and read to the committee a paper in the form of an affidavit, to which she offered to make oath, but was informed by the committee that it was unnecessary to do so. The hearing was then further adjourned to the twenty-fourth of February, at which time the relator appeared. The committee proceeded to hear the statements of the assistant superintendent, Mr. Harrison; an inspector of the district, Mr. Hunter; and one of the trustees of the ward, Mr. Smith; and of the relator, on her own behalf. The relator requested and insisted that the statements should be on oath, and the persons named should be sworn as witnesses. The committee refused to require the statements to be on oath. The relator also offered to prove the facts alleged in her statements presented to the committee on its first meeting; the substance of which was that the principal of said male department "was incompetent, both as a principal and teacher," and that her incompetency was due to the incompetency and neglect of the principal. The committee refused to receive such proof, or to enter upon any investigation of the allegations against the principal or other persons named in the statement. The committee reported to the board a statement setting forth their proceedings, with a resolution approving the action of the trustees in removing the relator, together with a resolution requesting the trustees to transfer her to some position in one of the primary departments. On the 4th of March, 1874, the board of education disposed finally of the appeal by the adoption of the report of the committee and the resolutions therein contained. The teachers employed in the public schools of the city do not hold a public office; they are simply employes of the trustees of the schools in whose service they are engaged; but the manner of employing and of removing them is regulated, to some extent, by statute. The twelfth section of the act relative to common schools FIRST DEPARTMENT, DECEMBER TERM, 1874. in the city of New York, passed April 25, 1864,* provides that "The board of trustees for the ward, by the vote of a majority of the whole number of trustees in office, may remove teachers employed therein, other than principals and vice-principals, and may also remove janitors, provided the removal is approved, in writing, by a majority of the inspectors of the district; and provided, further, that any teacher so removed shall have a right to appeal to the board of education, under such rules as it may prescribe; and the said board shall have power, after hearing the answer of the trustees, to reinstate the teacher." The number of trustees in each ward is five; and the number of inspectors in each district is three. † The papers show that the relator was removed at a stated meeting of the board of trustees, four trustees being present, and that the resolution of removal was unanimously adopted; and it appears that two of the three inspectors afterward approved such removal in writing. The action of these officers, respectively, was strictly regular under the statute. It is not necessary that the approval of the inspectors should be given at the meeting of the board of trustees; nor is it required to precede the action of the latter body. It is enough that it is given in writing after the board have acted; and its indorsement in this case upon the resolution filed with the board of education was, we think, a proper and effective mode of expressing the approval. The relator had taken her appeal before the approval of her removal by the inspectors. That might have been a proper ground for dismissing the appeal as prematurely taken, but was certainly no good reason for reversing the proceedings appealed from. Both parties having gone on with the appeal as though regularly taken, we are not at liberty to consider any question of regularity relating to the time or form of the appeal. The more material points made, are, first, that the statements of the several parties were heard by the committee without oath, and that the committee overruled the request of the relator that the witnesses be sworn. The statute makes no provision for a judicial trial on the sworn testimony of witnesses. The manner of investigating the appeal is left wholly to the sound discretion of the board of education. *See Laws of 1864, p. 825. Laws of 1873, chap. 112, §§ 6, 7. FIRST DEPARTMENT, DECEMBER TERM, 1874. All that is said in the act on the subject, is, that "the teacher so removed, shall have a right of appeal to the board of education, subject to such rules as it may prescribe; and the board shall have power, after hearing the answers of the trustees, to reinstate the teacher." This supervisory power is not necessarily in the nature of a judicial trial of issues of fact. The substantial duty of the board is, to see that iujustice has not been done to the teacher by the trustees, and that the removal has not been made upon improper or inadequate grounds. The delicate nature of the duty devolved upon the trustees, to see to it that unfit or incompetent persons are not put or kept in charge of the children who attend the common schools, forbids the idea of a trial with the formality and strictness that belong to courts. It is only necessary to suggest that they must often act upon moral convictions, rather than established facts, and upon evidences of unfitness, physical, mental, or moral, that would not, in courts, be such proof as would justify a verdict of guilt of specific offenses or immoralities. Before the act of 1864, above quoted, their power over the subject of removing teachers, was subject to no restraint or review except that which the common law imposes upon all contracts between the employer and the employed.* The law has only limited this power by specifying that it shall be exercised by a vote of the majority of the whole number of the trustees in office, and that the removal shall receive the approval in writing of a majority of the inspectors of the district. Where these requirements concur, the power of removal is as complete as ever, with the exception that the teacher may appeal to the board of education and be reinstated, if that body, "after hearing the answer of the trustees," are not satisfied that the removal was proper. To convert these proceedings into machinery for the formal trial of issuable questions of fact, would not, we think, be carrying out the policy or intent of the law, and would be disastrous to the well-being and good administration of the schools. The second point, in substance is, that the committee refused to take testimony in relation to the competency of the principal of * Gildersleeve v. The Board of Education, 17 Abb., 207; People v. School Officers, 18 Abb., 170. + Section 12, Laws of 1864, page 825. FIRST DEPARTMENT, DECEMBER TERM, 1874. the department in which the relator was an assistant teacher. This refusal was altogether right. No such question was properly brought before the board by the appeal. The relator could not exculpate herself by inculpating another, nor excuse the incompetency (which the offer on her part seemed to admit) by showing that it was caused by the alleged incompetency of her superior. The fact, if established, would only have shown that both ought to have been removed, and not that she ought to be reinstated. The certiorari should be dismissed, with costs. DANIELS, J., concurred. LAWRENCE, J.: Assuming that this court has the power, on a writ of certiorari, to review the proceedings and decision of the board of education, in relation to the removal of teachers in the common schools of the city of New York, I have failed to discover, on examining the case presented, any error which would warrant us in disturbing the action taken by that board. * Prior to the year 1864, the power to contract with and employ teachers in the schools was vested in the trustees in the several wards, under such general rules and regulations as the board of education might adopt. In the case of Gildersleeve v. The Board of Education, † the General Term of the Court of Common Pleas held, Chief Justice DALY delivering the opinion, that the power to employ teachers necessarily implied the right to remove them. And this court held, in the case of the People ex rel. McHugh v. The School Officers, that, under the law as it then stood, the board of education had no appellate jurisdiction over the trustees of common schools. in the exercise of their power to dismiss teachers of the ward schools. It appeared, in that case, that the board of education had passed a by-law, giving to a dismissed teacher the right to appeal to the board of education, when removed by the trustees. The court held that the right to prescribe general rules and regulations for the trustees in employing teachers, did not give to the board of education authority to supervise the action of the trustees in appointing or removing teachers. Just after the last cited case *Laws 1851, chap. 386, § 10; Laws 1854, chap. 101, p. 241. † 17 Abb., 207. |