Miller v. Tayntor

Smith, P. J.:

By section 41 of the charter of the city of Binghamton (Laws of 1907, chap. 751) it is provided that “the common council may, by ordinances passed by two-thirds of all its members, not inconsistent with the provisions of this act, or other laws of the State, regulate the powers and duties of any city officer or department; and it has power to investigate all city officers and departments * * *." It is a strong presumption that the power given to a municipality to investigate is ancillary only to the power to regulate. It is not probable that the common council has been given power to uncover a sore which it cannot heal. This presumption is fortified by the fact that the power to investigate given to the common council of the city of Binghamton is in the same section and follows the power given therein to regulate the powers and duties- of any city officer or department. To the extent then that the common council is authorized to regulate the powers and duties of the board of education it is clearly authorized to investigate, and it would naturally follow that the limit of the power to regulate would be the limit of the power to investigate. Title 16 of the city charter assumes to define the powers and duties of the department of education. By section 394 very broad powers are given. This board is given the entire supervision and management of the public schools in said city, and all the powers and duties of commissioners of common schools and of trustees of the several school districts in the State under the general statutes relating to common schools, where such statutes are not inconsistent with the provisions of the act. The powers as .given by that section would seem intended to assimilate the city educational department with the State Department. So that the principles governing the administration of school matters under the State law should be here applied, unless explicitly modified by the charter provisions. That the State Commissioner of Education has power to make this very investigation is not questioned in appellants’ brief; in fact it is admitted, and it is only claimed that the common council has the like power. There is no apparent reason why the power of investigation should be given to the city in addition to the existing power of the State Education Department, where the right to regulate the powers and duties of the members of the board are limited, as they are by these charter provisions. It is true that the mayor has the power to appoint or to remove the members of the board. (§§ 384, 385.) By section 385 of the charter the power of removal is given, but only when a member should he served with a copy of the charges preferred against him and giving him the right to defend. It is claimed in appellants’ brief that the power of removal also exists under section 18 of the city charter, but the specific limitations surrounding the right of removal of a member of a board of education, contained in section 385 of the charter, negatives the existence of the right either in the council or the mayor to remove a member of the hoard under section 18. In fact the existence of these two sections in the charter would seem to indicate that for certain purposes a member of the board of education was not- by the Legislature regarded as a city officer, or the department as a city department.

This power of removal is claimed by the appellants to be sufficient to authorize this investigation for the purpose of ascertaining what action should properly be taken by the mayor. In the first place it may be answered that it nowhere appears that it was at the mayor’s request that the investigation was ordered, nor does it appear that it is at all necessary for that purpose. The State Department of Education has full authority to investigate, in order to ascertain the full facts of the case, and the fruits of that investigation were accessible to the mayor of the city of Binghamton for the purposes of determining whether sufficient cause existed for the removal of any member of the board. The power of removal, therefore, by the mayor would seem to furnish no reason for the existence of this power of investigation in the common council. Moreover, there are economic reasons which imperatively demand a complete separation between the educational and political departments of a city as far as the regulation of the public schools may be concerned. If the members of a board of education were subject at all times to examination and investigation by a political municipal body it would seriously impair the usefulness of the board and materially interfere with its highest efficiency.

Admitting the power then of the council to investigate to the extent that they had the power to regulate, should this investigation be allowed to proceed and the moneys of the taxpayers expended therefor for that limited purpose ? As a preamble to the ordinance authorizing the investigation it was recited: “ Whereas, it appears that differences of opinion and of actions have arisen and now exist among the members of the Board of Education of the City of Binghamton, and that by reason of such differences the members of the Board of Education are not performing their official duties in a harmonious and businesslike manner, and that the existing differences and dissensions among the different members of the Board of Education are detrimental to the best interests of the Department of Education and of the schools of the city; and, whereas, it is the opinion of the Common Council that a fair and impartial public investigation of the Department of Education should be had; therefore be it ordained, * * *." This preamble to this resolution must have been put there for a purpose, and must be deemed to specify the purposes for which the investigation is to be made. It is the statement of the members of the common council as to the reason and purpose of the investigation ordered. There is nothing specified in this preamble upon which the common council has authority to act in regulation thereof, and we must assume, therefore, if the power of investigation be co-ordinate only with the power of regulation, that the investigation itself is unauthorized by the charter. The interlocutory judgment should, therefore, be affirmed, with costs, with usual leave to withdraw demurrer and answer upon payment of costs in this court and at Special Term.

All concurred, except Howard, J., dissenting in opinion; Lyon, J., not sitting.