
    GUSTAV G. SCHWARZROCK, RELATOR, v. BOARD OF EDUCATION OF BAYONNE, RESPONDENT.
    Argued May 7, 1917
    Decided July 6, 1917.
    1. Under section 10 of the School law (Comp. Stat., p. 4727) the commissioner of education has jurisdiction in controversies involving the removal, by a local board, of a person from -a position existing under the School law.
    2. The hearing by the commissioner of education in any controversy or dispute of which he has jurisdiction by virtue of the provisions of section 10 of the School law, is a new hearing, and he is not limited to a mere review of evidence taken before the local board.
    3. The action of the state board of education in setting aside the removal of a person from a position existing under the School law, has the effect of a judgment, and a mwndmivus will issue thereon in a proper casé, commanding the payment of the salary diue such person. Such a case is presented when it appears that he has always been ready and willing to perform his duties and that there are funds in hand applicable to the payment of the amount due him.
    On certiorari of decision of state board of education, and on demurrer to alternative mandamus.
    
    Before Justice Swayze, by consent.
    For Schwarzrock, Mark Townsend, Jr.
    
    For the board of education, Daniel J. Murray.
    
   The opinion of the court was delivered by

Swayze, J.

The certiorari at the suit of the board of education brings up the decision of the state board affirming the commissioner of education and reversing the action of the local board removing Scliwarzrock from the position of supervisor of buildings and repairs.

1. I agree with the state board that the controversy was one of which the commissioner of education and the state board had jurisdiction under section 10 of the School law. That controversy was whether the local board had rightfully re-nun ed Sehwarzroek from a position existing under the School law. . The proceeding could only result .in either affirming or reversing the removal. It conld not result in any binding judgment as to his guilt or innocence of the charge of attempting bribery; the finding that he was guilty or innocent could only bo a finding for the purpose of action by the board, not for the purposes of the criminal law. Whether in such a ease the board should act before action is taken by the criminal courts is a matter resting in the discretion of the board.

2. It necessarily results from the provision that the facts involved in any controversy or dispute shall he made known to the commissioner by written statements verified by oath and accompanied by certified copies of documents, that the hearing before him should be a new hearing, and that he is not limited to a mere review of evidence taken before the local board. An examination of the evidence in this ease makes it clear that fhe commissioner and the state board reached a correct result. It would be intolerable to permit a public official of good repute to be dismissed from office on the testimony of one who had been convicted of perjury, in the face of the officer’s denial.

3. The action of the state board setting aside the removal of Sehwarzroek has the effect of a judgment and a mandamus will issue in a proper ease. Thompson v. Board of Education, 57 N. J. L. 628. The alternative writ in the present case avers that Sehwarzroek was appointed supervisor for three years at a salary of $1,800; that after his wrongful dismissal he was always ready and willing to perform his duties until July 1st, 1916 (the expiration of his term), and that the local board refused to allow him to do so; that they refused to pay him the sum due as salary, $3,000; that there are funds in the hands of the commissioner of finance and the custodian of the school funds applicable to the payment of said sum of $3,000. These averments are admitted by the demurrer. Perhaps the defendant meant to challenge the averments by the reasons, but it is a mistake to say, as in reasons three and four, that the writ does not show that the amount claimed is in possession of respondents, and that it does not show that the respondents are in possession of moneys applicable to the payment required by the writ. The writ does show these facts. If the defendants meant to traverse the averments they should not have demurred. I-cannot distinguish the present case from Thompson v. Board of Education, supra. The writ should go. While it prays relief in the alternative, that was proper in view of the relator’s uncertainty whether there were funds in hand to meet his claim. In view of the admission of that fact, I see no reason why the peremptory mandamus should not command the drawing of a salary warrant upon the custodian and the payment by the custodian, or other proper officer. The relator is entitled to costs.  