
    The People ex rel. John Clingan v. Andrew S. Draper, State Superintendent of Public Instruction.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 15, 1892.)
    
    Schools—Certiorari—Removal op school trustee by superintendent OP PUBLIC INSTRUCTION.
    The relator, as school trustee, was directed by the superintendent of public instruction to close up the affairs of bis school district, pursuant to chap. 54, Laws of 1891, and further ordered to show before him on a day certain what proceedings he had taken in fulfillment of the order, and that if it should then appear that he had not proceeded promptly and in good faith to obey the same, that he then show, cause why he be not removed from office. Pursuant to the order, the relator made his report, in which he admitted that he had violated the order and a previous one, and had neglected and refused to comply with the same. "Whereupon the superintendent removed him from office. On certiorari to review the action of the superintendent, Held, that the facts stated in the return are conclusive upon the court, and these facts being true fully justified the superintendent in removing relator from office.
    Certiorari to review action of the superintendent of public instruction in removing relator from "office as school trustee.
    
      D. M. De Witt, for relator; Linson & Van Burén, for resp’t.
   Herrick, J,

This is a certiorari to review the action of the defendant as state superintendent of public instruction in removing the relator from his office of trustee of school'district No. 1 of the town of New Paltz, Ulster county. The power of the superintendent of public instruction to remove school officers is under § 18 of title 1 of chapter 555, Laws of 1864, reading as follows: “ Whenever it shall be proven to his satisfaction that any school commissioner, or other school officer, has been guilty of any wilful violation or neglect of duty under this act, or any other act pertaining to the public schools, or of wilfully disobeying any decision, order or regulation of the superintendent, the superintendent may by an order under his hand and seal, which order shall be recorded in his office, remove such school commissioner or other school officer from his office.”

It appears that in 1887 or 1888, at an annual school meeting held in district No. 1 of the town of New Paltz, the qualified voters resolved that an arrangement should be made with the normal and training school in said town for the instruction of the pupils .in said school district; and that such an arrangement was entered into whereby the normal school took charge of instructing the pupils of said district upon an annual payment by the said ■ district of the sum of $800 ; that said agreement was continued from time to time and at the annual school meeting held August 5, 1890, it was resolved that said agreement be continued for the . ensuing year; the sum of $110 voted to be raised to be paid to the normal school, which together with the public school moneys allotted to said district would make the full sum of $800.

That the relator, John Olingan, was on the 6th day of August, 1890, elected trustee, and proceeded to hire two teachers for said district. He paid them the sum of $110, and levied and assessed a tax of $300 upon the district for the purpose of paying such teachers, and issued a warrant for the collection of such tax; then one of the residents and taxpayers of the district appealed to the superintendent of public instruction from the action of the relator in employing such teachers, in paying out the school moneys to them, and levying a tax upon the district to raise the additional amount. . That appeal was not decided until September 11, 1891, and it was then among other things decided that the relator had legal authority to employ such teachers, and that his action in so doing must be upheld, and that the district must pay the teachers so employed. In so far as it concerned the employment of teachers, that appeal was not sustained; in some other respects not necessary now to recount, it was, and among other things the relator was directed to cancel the old tax bill, restore all moneys collected under it, and issue a new one to raise the moneys necessary to pay the wages of the teachers so employed by the relator, the superintendent deciding that the school moneys remaining in the hands of the local board of managers of the state normal school was not applicable to pay such teachers.

In the mean time pending such appeal, and before its decision, and on the 10th day of March, 1891, chapter 54 of the Laws of 1891 was passed, which was intended to settle the difficulties in the school district. It provided for the admission of pupils from school district No. 1 free of charge to the practice department of the normal school; that the state school moneys allotted to said district No. 1 in the year 1891, and thereafter, should be paid over by the supervisor of New Paltz to the local board of managers of said normal school, and it further provided that “ The present district officers of school district No. 1, town of New Paltz, Ulster county, shall continue in their respective offices, and discharge their duties pertaining thereto until any and all present indebtedness of said district is liquidated, and thereafter no school district meeting shall be held, nor school district officers chosen, and all school moneys remaining to the credit of said district after the liquidation of such indebtedness shall be paid over to the local board of managers of the State Normal School located at New Paltz.” That on the 4th day of August, 1891, a meeting' of residents of said district No. 1 was held, at which the relator was elected a trustee and other persons were, or claimed to be, elected to the several school district offices; at such meeting resolutions levying a tax for. the sum of $250 for teachers for the then ensuing year, $50 for incidental expenses, the sum of $695 for teachers’ wages employed by the trustees during the preceding year, were passed. That after such meeting an appeal from the proceedings thereof was duly taken to the superintendent of public instruction, and such proceedings were had upon said appeal that on the 7th day of September, 1891, the superintendent made a decision wherein he sustained the appeal, and held the meeting of August 4, 1891, and all acts in pursuance thereof to be unlawful, void and of no effect; the order also directed the relator what to do as trustee of the school district, to close up its affairs pursuant to chapter 54 of the Laws of 1891; and further ordered that the relator show before him on the 29th day of September, 1891, what proceedings he had taken in fulfilment of the order, and that if it should then appear that he had not proceeded promptly, intelligently, and in good faith to obey the same, that he show cause at the same time and place why he should not be removed from the office of trustee.

Pursuant to said order the relator made a report to the defendant at the time and place named of his proceedings thereunder, whereupon such proceedings were had that the defendant did then and there remove the relator from his office of school trustee, and it is to review such order of removal that this proceeding is brought.

The return of the defendant is conclusive as to the facts therein set forth. People ex rel. Sims v. Fire Commissioners, 73 N. Y., 437.

That return set forth that the relator appeared in person and by counsel before the defendant on the return day of the order hereinbefore referred to, and by the return and by the statement of his counsel admitted that he had violated that and a previous order of the superintendent, and had neglected and refused to comply with the orders of the superintendent; and that he had advised teachers to commence suits against the district for their wages, instead of levying a tax to raise the money to pay them, as the superintendent had ordered him to do. As above stated, the facts stated in the return are conclusive upon the court here, and these facts being true abundantly justified the defendant in removing the relator from office.

The proceeding was perhaps summary, but the facts were admitted. There was no occasion for proof.

But it is claimed that there are facts stated in the affidavit upon which the writ was issued which are not denied in the return, and therefore the court may consider them under the case of the People ex rel. Peck v. Commissioners, etc., of Brooklyn, 106 N. Y., 64; 8 St. Rep., 634. The claim of the relator is, that the real reason the defendant removed the relator was that he refused to discontinue a proceeding he had brought to compel the local board of managers of the Normal school at New Paltz to pay over the public school moneys they had received to be paid to the teachers employed by the relator.

Even if that were so Í see no reason to reverse the order of the superintendent. He had made a decision of that question himself. It was in a matter over which he had jurisdiction. He also there and then made a decision in regard to the matter, and it was in a matter where the statute made his decision con- ■ elusive. The conduct of the trustee as to school matters was also .subject to his supervision and control. He then and there made an order, which he had a right to make, directing the relator to .abandon his proceedings against the local board of managers of the Formal school. The relator then and there refused to abandon -.the proceedings, and expressly announced, by his counsel present -with him, his intention of continuing such proceedings.

This I think constituted a wilful disobedience of an order or •decision of the superintendent within the meaning of the statute.

Wilful I think in this statute means intentional, Anderson v. Howe, 116 N. Y., 336; 26 St. Rep., 787, and the relator certainly intended to disobey the defendant’s order. It was not a case of neglect, omission or misapprehension, but of absolute refusal, and .an announcement of an intention of doing directly the reverse of what he was ordered to do.

The writ should be quashed, and the determination of the defendant affirmed, with fifty dollars costs and printing disbursements.

Putnam, J., concurs; Mayham, P. J., not sitting.  