204 A.D. 50 | N.Y. App. Div. | 1922
The question here presented differs from that in Matter of Fleischmann v. Graves (118 Misc. Rep. 214; affd., 202 App. Div. 825), where the question was one of the right of the board of education to employ and pay legal counsel; and from that in Matter of Fuhrmann v. Graves (203 App. Div. 507), where the superintendent of schools had been engaged at a fixed salary; and from that in Matter of Pillsbury v. Schwab (204 App. Div. 901), where the petitioner was engaged in educational work and belonged to a class whose salary was regulated to a certain extent by statute, and was increased and his position changed without authorization by the council.
The petitioner in the instant case is designated as “ general supervisor ” in the department of public instruction. It appears from the record that he is not qualified to engage in instruction work and is not so employed, nor does he supervise the work of others engaged in such work; but he is employed in the business department and has clerical and administrative duties. Prior to January 1, 1920, the petitioner’s salary had been fixed by the board of education at the sum of $3,200 per annum. It is claimed that on January 1, 1920, his salary became automatically increased
In filing with the city authorities the itemized estimate of its budget for the fiscal year of 1920, the board included an item of salary for the petitioner of $3,600. This was reduced by the council in making up its appropriation for education to the sum of $3,200. From January 1 to July 1, 1920, the petitioner received a salary at the rate of $3,600. This the appellants say was due to an error on the part of the commissioner of finance and accounts. Since July first that officer has refused to countersign the orders for salary in excess of at the rate of* $3,200 a year, and this proceeding is to compel the countersignature of the commissioner to a warrant for the balance of the salary unpaid from July 1, 1920.
The claim of the appellants, in brief, is that as to items of this character the council has the right in its appropriation not only to determine the gross amount for educational purposes, but to exercise discretion in approving, disapproving and modifying items in the proposed budget submitted, and to fix and determine definitely the salaries of employees not engaged in educational work. The respondent on the other hand contends that the board of education is a separate and independent corporate body charged by law with certain definite duties and given broad and ample powers in the administration of the public educational system; and that those powers are exclusive of control by the municipality and comprehend the complete control of all matters of education in the city, and the fixing of salaries not only of its superintendent and members of the supervising and teaching staff, where they are not otherwise fixed by law, but those of all other employees, limited only by the total amount of money legally within their control and available for use..
It has already been recognized that the provisions of law governing the duties of boards of education and of municipal authorities are somewhat in conflict. (Matter of Hirshfield v. Cook, 227 N. Y. 297; Matter of Emerson v. Buck, 230 id. 380.) It is difficult to see how (it could be otherwise when a separate corporate body is created as a department of the city and is entitled to demand and receive funds from moneys raised by taxation in the city, yet claiming the right to act independently of the legislative and administrative departments of government of the city. The municipal authorities would naturally seek to apply to this department of the city government those provisions of law contained in its Qh„a¡rter and
We may decide, I think, without difficulty, one of the minor questions involved. The yearly increment of salary which by law operates automatically, seems in Buffalo to apply only to salaries of the supervising and teaching staff. (Education Law, § 882, as added by Laws of 1919, chap. 645; Id. § 884, added by Laws of 1919, chap. 645, as amd. by Laws of 1920, chap. 680.) To this class the petitioner did not belong. The board may in its discretion increase the minimun salaries and salary increments of any members of the supervising and teaching staffs or other- employees whose salaries are not fixed by the provisions of the Education Law. (Id. § 887, as added by Laws of 1919, chap. 645.) It does not sufficiently appear in the record that the board exercised its discretion in fixing salaries of other employees and providing for the increment so that the petitioner might claim that his salary was increased automatically. But, as I have already stated, the board seems by its own act to have made increases in his salary, twice in one year, so that the question of whether or not it automatically increased is to a certain extent academic.
The funds the board has under its control are chiefly derived from the following sources: (1) An amount annually appropriated by the Legislature for the support of the common schools and apportioned by the Commissioner of Education. The moneys so apportioned are required to be applied exclusively to the payment of teachers’ salaries. (Education Law, § 490.) (2) Appropriations made by the governing body of the city and raised by taxation as a part of the annual city budget. (Id. § 877, subd. 6, as added by Laws of 1917, chap. 786.) (3) Small sums being the proceeds from sales of text books, rates from tuition and similar items.
The salaries of the supervising and teaching staff being to a large extent fixed by statute, and a considerable portion of the total expenditure therefor being provided by the State, must necessarily be controlled by the board of education free from interference on the part of the municipal authorities. (Matter of Fuhrmann v. Graves, supra.)
The board of education may not incur a liability or an expense chargeable against the funds under its control or of the city for any purpose in excess of the amount appropriated or available therefor, or otherwise authorized by law. (Id. § 877, subd. 10, as added by Laws of 1917, chap. 786.) It must submit annually to the council an itemized estimate of the moneys it deems necessary for educational purposes. (Id. § 877, subd. 1, as added by Laws of 1917, chap. 786.) The council, after examination of such estimate, may, in its discretion, reduce the amount demanded by the estimate (Matter of Emerson v. Buck, supra); but the reduction must be in the gross amount. The detailed items are, I think, to give the council information and aid it in determining the total amount to be appropriated. The reduction in the items of salaries or expenditures made by the council are, I think, of no more effect than the suggestion that in its judgment such reductions are advisable. Its
I think such changes in the items are advisory only; and while entitled to great consideration as coming from the body in general control of the city government and particularly of its finances and taxation, are not controlling. Under, the duties with which it is charged, the board must make the final decision as to how the money within its control shall be expended in providing an efficient system of education, with high regard for the proper instruction, protection of health and general welfare of the children committed to its charge. In its powers and activities it is limited only by the amount of funds within its control, and by the definite provisions of law pertaining to the use of such funds.
The provision of law (Education Law, § 880, subd. 3, as added by Laws of 1917, chap. 786) requiring the countersignature of the commissioner of finance and accounts on the warrant, and requiring the board to classify its funds and furnish data to the financial officers of the city, is merely to enable that officer to keep an account of the disbursements, and an additional protection to insure compliance with statutory requirements and the genuineness of the audit by the board. (Matter of Fleischmann v. Graves, supra.)
It appearing that there are sufficient funds on hand to pay the salary of the petitioner as fixed by the board, I reach the conclusion that the defendant Graves was not authorized to determine the legality of the charge and refuse to countersign the warrant; but that the matter of the petitioner’s salary was for the sole determination of the board. When it had been duly audited and allowed, the petitioner was entitled to receive it.
The order appealed from requires the payment of the balance due on salary with interest. The appellants challenge the validity of that part of the order which awards interest, on the ground that the board of education has not audited a claim for interest. The claim has been audited and payment demanded. Interest would, therefore, follow as a matter of law. The money of the petitioner has been withheld because, as we now determine, of the unlawful act of the fiscal officer. In a claim for unpaid salary interest is recoverable from the time of demand. (Taylor v. Mayor, 67 N. Y. 87; 28 Cyc. 459, 1754.)
The order should be affirmed, with costs.
All concur.
Order affirmed, with costs.