Gimprich v. Board of Education

Lewis, Ch. J.

(dissenting). The action of the board of examiners in denying petitioner’s application for credit based on her “ outside ” teaching experience was not, in my view, quasi-judicial in nature. That decision was reached without a hearing and without the presentation of proof. It appears, in fact, to have been an ex parte decision by the board. Such a decision cannot rightly be characterized as quasi-judicial; rather is it administrative. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1, 6, 10 ; People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 194-196 ; Matter of Murray v. Teachers’ Retirement Bd., 258 N. Y. 389, 392 .)

*411 Counsel for the board of education argues, not that the decision of the board herein was a judicial act, but only that — since it involved decision of matters of fact — it was more than action ministerial in character, controlled by the courts through a proceeding in the nature of mandamus. However, despite sweeping language in some cases, I do not believe it to be accurate to say that because administrative action involves some fact finding or discretion, it is ipso facto more than “ ministerial ” action immune from control by the courts. In a case frequently cited (Grider v. Tally, 77 Ala. 422, 426 ) the court said: “ That a necessity may exist for the ascertainment, from personal knowledge, or by information derived from other sources, of the state of facts on which the performance of the act becomes a clear and specific duty, does not operate to convert it into an act judicial in its nature. Such is not the judgment, or discretion, which is an essential element of judicial action * " V’ To like effect is State v. Howard ( 83 Vt. 6, 15 ) “ The ascertainment of a fact which raises the duty, or is collateral to its performance, is not such an exercise of judgment as will deprive the duty of its ministerial character.” And in Hicks v. Dorn ( 42 N. Y. 47, 53 ) this court observed of an administrative officer that: “ In the discharge of this duty, thus imperatively imposed upon him by law, he acted ministerially. It is true that he was bound to exercise his discretion as to the methods and instrumentalities to be employed, and this is true of all ministerial officers; and yet it has never been held that, merely because ministerial officers have a discretion to exercise, that gives them the immunity of judicial officers.” And see “ Ministerial and Discretionary Official Acts ” by E. W. Patterson ( 20 Mich. L. Rev. 848 , 863-866).

The foregoing principle is most often applied in cases involving the right of an administrative officer or agency to deal summarily with property in the interest of the public health or safety. In these cases the courts exercise the right to review the facts found initially by the administrative officer or agency acting in a ministerial capacity (Hicks v. Dorn, supra; People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 194 , supra; Miller v. Horton, 152 Mass. 540, 548 ).

*412 It is clear then that administrative action cannot be said to be more than ministerial simply because it involves some element of fact finding or discretion. A more reliable test, to my mind, is to be found in the case at hand in the language of the applicable by-law, which speaks of the duty of the board of examiners as being to “evaluate,” to “estimate,” to “calculate” — expressions indicative of subordinate, almost clerical, action. Furthermore, the statute (Greater New York Charter, § 1091) which formerly provided that the board of examiners’ decision in these matters should be final and conclusive, has not been incorporated into the present Administrative Code of the City of New York. That is some indication that the Legislature intended these decisions to be reviewable by the courts (cf. Matter of Murray v. Teachers’ Retirement Bd., 258 N. Y. 389 , supra).

Finally, in a considerable number of cases this court has treated decisions of the board of examiners in these matters as not being conclusive but as subject to judicial revision many years after they were made (Cottrell v. Board of Educ. of City of N. Y., 293 N. Y. 792 ; Wakefield v. Board of Educ. of City of N. Y., 299 N. Y. 664 ; Strum v. Board of Educ. of City of N. Y., 301 N. Y. 803 ).

Thus, I reach the conclusion that this proceeding is one to compel the board of education to perform a duty specifically enjoined by law, and therefore the proceeding — brought to compel performance of a continuing duty — was timely commenced. No other question is now properly before us.

Accordingly, I would affirm the order.

Conway, Desmond, Dye, Fuld and Froessel, JJ., concur with Van Voorhis, J.; Lewis, Ch. J., dissents in opinion.

Orders reversed, etc.