The People, ex rel. McIver, vs. The Board of Education of the City of New-York and others, 17 Barb. 299

By the Court, Edmonds, P. J. The question involved on this motion for a mandamus, is, whether the city superintendent of- common schools for the city and county of New-York has power to annul a license granted to a teacher. The county superintendents had that power originally, and the town superintendents have it now. In November, 1847, the office of county superintendent was abolished in every county except New-York, and there continued to be in that county a county superintendent, until 1851, when that office also was abolished and a city superintendent, Tyas substituted, and his powers and duties defined.

They were very nearly the same with those formerly possessed by the county superintendent. But there were two markpd alterations. One was that the county superintendent, without any aid, could grant certificates to teachers, while the city superintendent could do so only after an examination in conjunction with the ward inspectors. The other was, that that part of the statute which gave the county superintendent the power to annul any certificate was not, in express words, enacted in regard to the city superintendent.

So that the power to annul a certificate has not been granted, in terms, to the city superintendent, as it was formerly to the county superintendent, and is now to the town superintendent ; and it is claimed only by necessary implication.

That claim rests upon two grounds: first, that like the appointing power of the president of the United States the power of removal is necessarily implied; and second, that it is implied in the general clause of the statute creating the office of city superintendent, which makes it his duty “ generally by all means in his power to promote sound education, elevate the character and qualifications of teachers, improve the means of instruction, and advance the interests of the schools committed to his charge.” As to the first consideration, it- will be enough to remark that the examination of a teacher and licensing him can hardly be called an appointment to office.

And as to the second, it is worthy of -note that the precise words of this general delegation of powers were in the act creating the office of county, superintendent, and immediately preceded it. So that the inference is irresistible that it was designedly omitted. Whether thus omitted because deemed unnecessary, as included in the general clause, or because it was intended not to confer the power, is not so clear.

I can hardly' suppose that the latter was the intention, for then, while the power of annulling the license of an unworthy teacher is vested in every town superintendent in the state, however small the town, or sparse its population—and some of them have a population scarcely exceeding one hundred—that power would not exist at all in the city, which has a population of over half a million; for be it remarked, that if the city superintendent has not the power, it is not possessed in the city by any one of the officers of the common schools, not even by implication.

On the other hand, with this general clause, it was quite unnecessary to repeat the particular enactment, authorizing him to annul a license, for it would very naturally and almost necessarily be involved in the enactment which makes it his duty “ by all means in his power to elevate the character and qualification of teachers.” For my part, I find it difficult to conceive what means he caía have, after a license is once granted, thus to elevate the character of teachers, unless it be the salutary restraint which must flow from his possessing the power to annul the license.

And that restraint must be more serviceable for the object in view than even to grant a license in the first instance. For in granting a license among a dense population where it is so difficult to get at a true knowledge of the real character of any one, there is much greater liability to error than among the sparser population of the interior, and it would be lamentable and a strange omission in the law, that with this greater liability to error, there should be provided less means of correcting it. [New-York General Term, December 5, 1853.

Edmonds, Edwards, Mitchell and Roosevelt, Justices.] Indeed, it seems to me that it is absolutely necessary that the power should be lodged somewhere, and there are no words in the statute relating to the city which confer it on any one, unless these general words confer it on the superintendent. The words are certainly broad enough to confer it, and comprehensive enough to render any special enactment unnecessary.

A special enactment, on the other hand, is necessary in the case of town superintendents, because in regard to them there is no such general clause, nor any expression from which the power could be implied. I therefore am of opinion that the power has been properly exercised by the city superintendent in this case, and the motion for a mandamus must be denied.