
    The People of the State of New York ex rel. William H. Woodward, Relator, v. Andrew S. Draper, as Commissioner of Education for the State of New York, Respondent.
    Third Department,
    January 4, 1911.
    Schools — removal of school commissioner hy Commissioner of Education — hearing —evidence—records not introduced at hearing.
    A determination of the State Commissioner of Education removing a school commissioner from office for willful disregard of duties, etc., under the authority conferred by section 338 of the Education Law will not be reversed because the State Commissioner based his determination not only upon the evidence at the hearing hut also upon records in his office, consisting of letters sent and received, even though they were not called to the attention of ■ the person removed upon the hearing.
    Kellogg and Houghton, JJ., dissented.
    Certiorari issued out of the Supreme Court and attested on the 27th day of December, 1909, directed to Andrew S. Draper, as Commissioner of Education for the State of New York, commanding him to certify and return to the office of the clerk of .the county of Albany all and singular his proceedings had in relation to the removal of the relator from the office of school commissioner of the third commissioner district of the county of' Albany.'
    
      
      Ainsworth & Sullivan and Charles B. Sullivan, for the relator.
    
      Frank JB. Gilbert, for the respondent.
   Smith, P. J.:

On or about the 20th day of November, 1909, the relator was personally served with an order, signed by the respondent, to show cause why he should not be removed from office. That order specified nine different charges against the relator, and the tenth charge, that the relator had otherwise failed to perform the duties of his office and had willfully failed and neglected to comply with the requirements of the law and had willfully disobeyed the regulations of the Commissioner of Education. The order was returnable upon the 30th day of November, 1909. At that date the relator appeared before the respondent, where the charges were in form repeated, and. to which charges he made certain answers and explanations. After this hearing the respondent signed an order removing the relator from the office of school commissioner, and by this proceeding is sought to be reviewed such determination..

In his return the respondent has based his determination not only upon the hearing had before him upon the 30th of November, 1909, but upon records in his office, showing letters sent and received, which were not called to the attention of the commissioner upon this hearing. One of the contentions of the relator in -this proceeding is that he was entitled to an opportunity to make full explanation as to these letters and this correspondence, and that no determination could be based thereon without giving to him such opportunity. The first question, therefore, to be determined goes to the right of the relator to a trial • upon the charges made, as it would seem to be unquestioned that if the law gives to him the right of a trial, he cannot be found guilty upon evidence that was not presented upon that trial, and to which he has not had opportunity to make answer.

The act of the respondent in removing the relator is justified under section 338 of the Education Law (Consol. Laws, chap. 16 ;

■ Laws of 1909, chap. 21). That section, so far as is material

to this controversy, reads as follows: “Whenever it shall be proved to his satisfaction that any school commissioner or. other school officer has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools, or wilfully disobeying any decision, order or regulation of.the Commissioner of Education, said commissioner 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 will be noticed that there is in this section no specific requirement that charges shall be made, or notice of charges given, Or an opportunity of defense allowed to such school officer. On the other hand, by section 228 of the same law is given power to the Commissioner of Education to remove a member of a. board of education. By that section it is provided that “For cause shown, and after giving notice of the charge and opportunity of defense, the Commissioner of Education may remove any member of a board of education. Wilful disobedience of any lawful requirement of the Commissioner of Education, or a want of due diligence in obeying such requirement or wilful violation or neglect of duty is cause for removal.” In the one case, therefore, it is provided for a notice, a ' trial and a determination of cause shown'. In the other case there is no provison for -notice or trial, and the condition of removal is proof “ to the satisfaction of the commissioner.” The omission of the right of notice and trial in the provision for the removal of a school commissioner could not' have been inadvertent, and by settled rules of statutory construction the failure to provide for such notice and trial in the case of a school commissioner indicates' a legislative intent that when the Commissioner of Education is fairly satisfied by any fair proof of the willful neglect of the school con> missioner to perform his duties, it is his obligation to. remove him from office. That this proceeding is a. summary one seems to have been held in People ex rel. Clingan v. Draper (63 Hun, 389). In People ex rel. Fonda v. Morton (148 N. Y. 156) the opinion in part reads: “ There are many statutes on the statute book relating to the employment arid removal of police officers, clerks and employees in municipalities, which expressly or by implication require that the power of removal shall only be for cause after notice and hear-

ing of the person whose removal is contemplated. The practice of legislation in this State has been to insert a provision for notice.and hearing when this has been intended.” We are referred to no cases requiring a notice of charges and a trial, where such notice and trial were not specifically provided for in the statute under consideration. This statement perhaps should be qualified by reference to the cases of People ex rel. Smith v. Comrs., etc., of Brooklyn (103 N. Y". 370), and People ex rel. Peck v. Comrs., etc., of Brooklyn (106 id. 67), which arose under section 14 of title 13 of the charter, of the city of Brooklyn (Laws of 1873, chap. 863), where the ¡lower was conferred upon the commissioners to remove members of the fire department “ on conviction ” of certain offenses therein specified. It was there held that the words “ on conviction ” implied and required a trial and determination of guilt. It is strongly contended by the relator that the provisions of this' statute authorizing the removal of the relator when he shall be “proven guilty” of willful neglect, impliedly require a trial. While recognizing that the contention is not without force, the requirement that he should be proven guilty “ to the satisfaction of the commissioner,” and' the omission of the provision for notice and trial, which is specifically made as a condition precedent to the removal of other officers under other provisions of the same'act, we think negatives any such inference which otherwise might be drawn from the language used.

Upon the question of fact we cannot say that the conclusion of the respondent was unwarranted. While upon certain charges we might have doubt as to whether the facts indicated willful negligence on the part of the relator, from the record as a whole we find abundant support for a finding of such willful disregard of his duties as school commissioner as to seriously embarrass the administration of the Education Department, and to become intolerable to a superior depending upon his co-operation. We conclude, therefore, that the determination aliould be affirmed, with fifty dollars costs and disbursements.

Sewell, J., concurred; Cochrane, J., concurred in result; Kellogg and Houghton, JJ"., dissented.

Determination of Commissioner confirmed, with fifty dollars costs and disbursements.' 
      
       Since revised into Consol. Laws, chap. 16 (Laws Of 1910, chap. 140), §§ 95, 309.— [Rep.
     