Summary
In Matter of Levitch v. Board of Education (243 N.Y. 373) the Appellate Division (216 A.D. 391) had previously expressed the view that a wrong construction of a statute by the Commissioner of Education is not binding on the court.
Summary of this case from Matter of Craig v. Bd. of Education of City of N.YOpinion
Argued September 28, 1926
Decided October 5, 1926
Appeal from the Supreme Court, Appellate Division, Second Department.
George P. Nicholson, Corporation Counsel ( John F. O'Brien, Elliot S. Benedict and Thomas W.A. Crowe of counsel), for appellant.
Helen P. McCormick for respondent.
Assuming, without deciding, that Ray L. Levitch was removed unlawfully from her employment as a school teacher under section 872, subdivision 3, of the Education Law (Cons. Laws, chap. 16), she having appealed to the Commissioner of Education, the decision was final and conclusive upon her. Under section 890, formerly section 880, the Commissioner had jurisdiction to hear the appeal of any person aggrieved who had been refused pay as a teacher or had been affected by the decision of any school authority. The fact that the question may have involved the construction or application of a statute did not deprive him of jurisdiction. ( Barringer v. Powell, 230 N.Y. 37, 43.)
The Education Law specifically makes the Commissioner's decision final and conclusive. There is nothing here to show that his action was purely arbitrary. He was called upon to decide whether the teacher by reason of her various appointments and service came within the provisions of section 872, entitling her to notice and hearing before removal. He decided that she did not hold such a permanent position. Having appealed to the Commissioner, the petitioner and her substituted representative were barred from resorting to the courts What her rights would have been if she had not appealed to the Commissioner we do not determine. His conclusion was final. ( Matter of O'Connor v. Emerson, 196 App. Div. 807, 810; affd., 232 N.Y. 561; Bullock v. Cooley, 225 N.Y. 566, 576; People ex rel. Board of Education v. Finley, 211 N.Y. 51.)
The order of the Appellate Division should, therefore, be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur; LEHMAN, J., absent.
Judgment accordingly.