People ex rel. Owen v. Masters

for the reasons stated in the second ground mentioned in the foregoing opinion. "Upon the first question, viz : whether the appeal would lie from the decision *262of the town superintendent to the state superintendent of public instruction, he expressed no opinion.

Johnson, J., dissented in toto.

Judgment reversed.

Johnson, Selden and Welles, Justices.]

Section 132 of ch. 480, of the laws of 1847, (Sess. Laws of that year, p. 710,) reads as follows: “ § 132. Any person conceiving himself aggrieved in consequence of any • decision made: 1. By any school district meeting: 2. By the town superintendent in the forming or altering, or in refusing to form or alter, any school district, or in refusing to pay any *258school moneys to any such district: 3. By the trustees of any district, in paying any teacher, or refusing to pay him, or in refusing to admit any scholar gratuitously into any school: 4. Or concerning any other matter under the present title, may appeal to the superintendent, who is hereby authorized and required to examine and decide the same, and the decision of the state superintendent shall be final and conclusive.” By § 16, of ch. 382, of the laws of 1849, (Sess. Laws of that year, p. 537,) the foregoing section, among others, was repealed; and by § 1, of ch. 78, of the laws of 1853, (Sess. Laws of that year, p. 114,) it Was in effect restored.

It is contended by the respondents’ counsel, that the 4th subdivision of the section of the act of 1847, above recited, gives to the state superintendent of public instruction authority to entertain the appeal which was taken to him, from the decision of the town superintendent in the case' under consideration; and that his decision upon such appeal is final and conclusive. The language of the subdivision is, perhaps, comprehensive enough to justify such construction, and must decide the question, unless it can be seen, from the section and its context, that this was not the object and intention of the legislature. It will be found, however, that it could not have been the intention to give the words, “or concerning any other matter under the present title,” a full, literal interpretation and operation. The “title” referred to, embraced, at the time of the passage of the act, three entire articles, with 477 sections, and contained ten different headings or subjects, as follows : “ The powers and duties of the town superintendents' of common schools.” “ Of the duty of town clerks.” “ Of inspection and supervision by town superintendents.” “ Of the formation and alteration of school districts.” “Of the powers of school district inhabitants, and of the choice, duties and powers of school district officers.” “ Of the duty of trustees of school districts.” “ Of the assessment and collection of school district taxes.” “ Of the annual reports of trustees, their duties and liabilities.” “ Of school district libraries,” and “ Of miscellaneous provisions connected with the foregoing articles.”

*259If the interpretation contended for is to prevail, any person conceiving himself aggrieved concerning any of these matters, may appeal to the state superintendent, whose decision will be final and conclusive. This, in numerous instances, would override the courts, in which the constitution has reposed the judicial power; and, admitting the legislature so intended, their intention cannot be effectuated. If the words, “ any other matter,” &c. in the 4th subdivision of § 132, aro not to receive the extensive application which they seem, on their face, to import, the question is, to what do they relate, or, rather, do they include a grievance on the part of a candidate for license as a teacher of common schools in consequence of a refusal of the town superintendent to give the certificate of qualification provided for in § 36'? That section requires the certificate to be “in such form as shall be prescribed by the state superintendent.” The return to the alternative mandamus in this case, states that the only form of such certificate prescribed by the state superintendent is in the following words : “ I hereby certify that I have examined A, B. and do believe he (or she) is well qualified in respect to moral character, learning and ability to instruct a common school in this town for one year from the date hereof.”

In my opinion, the 132d section should not be so construed as to give an appeal to the state superintendent from a decision of the town superintendent where the decision of the latter is founded upon his opinion of the qualifications of the candidate. Such construction would involve the injustice and absurdity of requiring the examining officer to make a false certificate; to certify to a certain belief, when he entertains one directly the contrary, as the present case aptly illustrates. The -act makes it his duty to ascertain the qualifications of the candidate in respect to moral character, learning and ability; and if he shall be satisfied in respect to such qualifications, he shall deliver the certificate. (§§ 35,36.) The policy of the law undoubtedly is, that the question of the qualifications of candidates for teachers of common schools should be left to the town superintendent of the town in which the teacher shall be employed. It is the.right of the *260inhabitants of a district to have its school taught by a persoti. licensed by a superintendent whom they have had a voice in choosing. (§ 20.) A certificate made by a superintendent of one town, will not qualify the individtial to teach in another town; This whole policy would be frustrated by allowing the discretion of the town superintendent to be controlled or interfered with in this respect by the state superintendent.

The second subdivision of § 132, specifies certain acts of the town superintendent, upon his performance or non-performance of which, the. party conceiving himself aggrieved, may appeal. They are acts or refusals to act, as distinguished from the exercise of his discretion and certifying his opinion. These specifications, as it seems to me, embrace all the cases in which the legislature intended an appeal might be taken from the town, to the state superintendent. If I am right in these views, there will be still left ample room for the operation of the words, “ or concerning any other matter under this title,” in the 4th subdivision of the section.

But if the foregoing views are erroneous, and the appeal to the state superintendent, recited in the alternative mandamus, was in a case contemplated by the act, the judgment or order of the special term, from which the defendant has appealed to this court, must, nevertheless, be reversed. The order of the state superintendent requires the defendant to examine the relator in relation to her qualifications as teacher of common schools, and if found qualified in other particulars than those presented for the decision of the state department of public instruction, that he license her accordingly, &c. The town superintendent had refused to examine her, touching her qualifications in respect to learning and ability, for the reason that he had ascertained what satisfied him that her moral character was not good. The question upon the appeal from his decision was whether her moral character was sufficient, &c. Upon this question evidence was taken by the state superintendent, upon which he made the order. The question of the relator’s moral character was thus taken out of the hands of the town super*261intondent, and disposed of on the appeal, and the latter had no further concern with it. The examination which he was required to make, related exclusively to her qualifications with respect to learning and ability, and not to her moral character. The return shows that he has performed the duty enjoined, and that he was satisfied that she was qualified in respect to learning and ability &c., and that he offered her a certificate to that effect, which she refused to accept. He also states in his return to the mandamus, that he did not, on such examination, find her qualified &e. in respect to moral character, and therefore refused to certify that he believed her thus qualified. It appears to me that he has done, and offered to do, all that can be required of him. On his giving such certificate, as it appears he has offered the relator, and which she has refused, the latter would be deemed, in judgment of law, qualified to teach a common school. It is true that such certificate would not be in the form prescribed by the state superintendent^ but it would be a substantial compliance with the law". The state superintendent having decided the relator to be qualified in respect to moral character, and the defendant in respect to learning and ability, should the defendant, as town superintendent, refuse to pay to the trustees of the school district in which she may have taught the requisite period, the share of such district of the school moneys in his hands, on the ground of the insufficiency of the form of the certificate, it cannot be doubted that the state superintendent, in the exercise of the appellate power given him by the 132d section of the act, would direct him to pay it; and in case of his disobedience of such direction, this court would have the power to compel its observance.

For the foregoing reasons, I think the judgment or order appealed from should be reversed, and that the appellant is entitled to judgment.