Opinion
June, 1905.
David Ross, for the appellant.
James D. Bell [ William Hughes and John J. Delany with him on the brief], for the respondent.
The relator was a teacher in the town of Flushing, county of Queens, at the time of its consolidation with the greater city of New York, and was the holder of a second grade school commissioner's certificate, which by its terms expired July 31, 1900. After the consolidation of the town of Flushing with the greater city she continued to teach until the expiration of the term of her contract on June 30, 1898, pursuant to the provisions of the Greater New York charter (Laws of 1897, chap. 378, § 1117). On August 28, 1898, the city superintendent granted to her a special license which expired on June 30, 1899. Afterwards she taught under a temporary license issued by the city superintendent for the period of one year, at the expiration of which time it was successively renewed twice, the last renewal expiring June 30, 1902. She continued to teach, however, under a special license up to January, 1903, when she was notified by the city superintendent that owing to an unsatisfactory report upon her work her license would not be renewed further. She now claims that both because she was a teacher in the territory included in the greater city at the time of the consolidation, and because of the further fact that she has taught three years continuously under a temporary license twice renewed, she is entitled to a permanent license, and that having retained her as a teacher under the special permit after the expiration of the three years of service, the city superintendent cannot now be heard to say that her work was not successful, but that the provision of section 1089 of the revised Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1901, chap. 718), "at the close of the third year of continuous, successful service, the city superintendent may make the license permanent," is mandatory.
The mere fact that the relator was a teacher at the time of the consolidation, and held a school commissioner's certificate, did not entitle her to become a member of the permanent teaching force of the greater city. The issuance to her of a first grade school commissioner's certificate thereafter did not affect her status as a member of the teaching force of said city. To succeed, therefore, she must establish the proposition that the word "may" in the portion of section 1089 of the revised charter (as amd. supra) quoted means "must." If the relator had become a member of the permanent force she would have been protected by section 1093 of the revised charter from removal except upon charges preferred and an opportunity to be heard, and it cannot be that it was ever designed by the statute to take away from the licensing power all discretion in the first instance. The fact that the teacher's tenure in office is so carefully guarded necessitates the greater care on the part of the superintendent in making temporary licenses permanent, and requires that his discretion should not be interfered with. No reason is suggested why the permissive language of the statute should be construed as mandatory. It is unnecessary to consider the cases relied upon by the relator, because in each the teacher held a permanent certificate or its equivalent. The fact that the probationary term of three years was extended by the superintendent by special license cannot avail the relator, because the additional opportunity afforded her to demonstrate her fitness to receive a permanent license cannot be construed as a determination by the superintendent that she was entitled to one.
The order should be affirmed, with costs.
HIRSCHBERG, P.J., WOODWARD and HOOKER, JJ., concurred.
Final order dismissing alternative writ of mandamus affirmed, with costs.