167 Pa. 569 | Pa. | 1895
Opinion by
This case does not raise any question of the relative powers of the board of education, and the sectional school boards, nor involve in any way the merits of the original controversy which came to this court in Com. ex rel. Sherry v. Jenks et al., 154 Pa. 368.
What we have now before us is the power of the councils of Philadelphia to make the appropriation to Miss Sherry, and to do it by a transfer of an item from one appropriation to another. On this subject the main question is the right of councils to recognize a moral obligation as a good consideration for the payment of public money.
The facts are not in dispute. Miss Sherry was elected by the sectional school board as supervising principal of the John Moffet Combined Grammar and Secondary School, in October, 1891, and began the performance of her duties as such on Jan. 4, 1892. The board of education on February 10th refused to confirm her election, and on March 8,1892, regraded the school so as to dispense with the office of supervising principal. Miss Sherry and the sectional board which had elected her, claiming that her title was complete by the election, and did not require to be confirmed by the board of education, she brought suit by mandamus to compel the board of education to certify her name on the roll of teachers to the city controller. This suit was decided against her by this court on April 24,1893. The councils of -the city inserted in the appropriation to the board of
This appropriation is on the face of it, to pay for services rendered. Whether it is accurately called salary or not is unimportant. Nor is it material that the services may not have included all the work of a supervising principal for the full period. That was not Miss Sherry’s fault. She held herself in readiness to perform, and if councils had a right to compensate her at all, the amount was within their discretion so long as it was exercised in good faith and without abuse. Miss Sherry not only held herself ready to render the services but claimed the right to do so. That right depended on a question of authority under the law between the sectional school board and the board of education, and the real contest in the matter was between those two bodies and was fought over Miss Sherry’s head. For that she was not responsible. The contest terminated adversely to Miss Sherry’s right by the decision of this court in April, 1893, and no compensation was claimed by her or granted by councils for any period after that date.
While the contest was pending the legal question may fairly be said to have been in doubt. The title of certain teachers to office would seem to be complete by an election by the sectional board, under the law as stated in the opinion of the city solicitor of Philadelphia, March 2, 1888 (Append, to Ord. 1888, p. 17), while the qualifications, etc. and the title of others depended on the action of the board of education. How far supervising principals belonged to one class or the other was open to question. Had the city councils while Miss Sherry’s claim was pending and undecided passed an ordinance to pay her in settlement of her claim there could have been no doubt of their authority to do so. The right to compromise and settle an existing and asserted claim does not depend on the ultimate decision for or against its validity. If it did, compromise instead of being an end of litigation which the law favors, would be only an additional complication in the progress of it. How far does the law prescribe as mandatory, any different rule,
The opinion of the learned judge below calls attention to some recent instances of similar municipal action, among them, that in regard to Mr. Oellers, who acted as city treasurer for a time under an election by councils to a vacancy which it was subsequently decided should be filled by the appointee of the
The other objections are to the method of- payment adopted. The item was originally contained in the appropriation to the board of education, and when that department refused to draw the warrant, it was transferred to the appropriation to the clerks of councils. Transfer of items is expressly recognized by the act of June 1,1885, art. 7, P. L. 45, which provides that the city controller “ shall not suffer the appropriation for one item of expense to be drawn upon for any other purpose, or by any-department other-than that for which the appropriation was specifically made, except on transfers made by ordinance of councils.”
Article 6 of the same act provides that “ no money shall be drawn from the city treasury except by due process of law, or upon warrants signed by the head of the appropriate department,” and it is argued that this item belongs properly to the department of education; But “appropriate department” in this section means the department to which the appropriation is made, and whose head is to draw the warrants. It is the general direction which is embodied again specifically as to the controller in section seven already quoted prohibiting that officer from countersigning any warrant drawn by “ any department other than that for which the appropriation was specifically made.” It is not intended to interfere with the discretion of councils over the department to which appropriations should properly be assigned. How far councils might under this discretion appropriate to one department funds the control of which was within the objects and jurisdiction of-another, we
This case was heard in the court below on a motion to dissolve a preliminary injunction, but as the whole controversy is involved, the parties have agreed that it shall be treated here as upon final hearing.
The order dissolving the injunction is affirmed and the bill dismissed with costs. . ,