
    The People ex rel. Nellie A. Cronin, Resp’t, v. James W. Coffey, Comptroller, App’lt
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    Schools—Tboy—Payment of salaries of teacheks.
    So long as the hoard of school commissioners of the city of Troy does not exceed the amount appropriated by the common council, it may make contracts for teachers, etc., at its discretion, and may, if it deems best, employ teachers at higher salaries and for a shorter term than had been in the previous year, and the comptroller has no r ght in such case to refuse to countersign the draft given for salary of a teacher so employed by the board on the ground that if drafts of similar amount should continue for the full year the appropriation would be exhausted.
    Appeal from order directing the issue of a peremptory mandamus commanding the comptroller to countersign a draft issued in favor of relator.
    
      William J. Roche, for app’lt; Warren, Patterson & Gambell (Charles E. Patterson, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from an order directing the issue of a peremptory mandamus.

At the regular meeting of the school commissioners of Troy, held February 27, 1891, a resolution was passed that certain teachers, naming them, be elected from March 1, 1891, to March 1, 1892, “provided there be sufficient money properly set apart to pay them for that period, and if there be not sufficient money for that purpose, for such portion of that period as the money so set apart shall be sufficient.” Under that resolution the relator was appointed third assistant in the intermediate department of school No. 10. Her salary was, at the same meeting, made sixty dollars per month. She served as such assistant the month of April, and duly presented her bill for payment. This was properly audited by the board, and- a draft on the chamberlain for the amount was -duly issued. It is necessary that the comptroller should countersign the warrant, and this he refused to do.

The ground of his refusal is as follows: On the 5th of February, 1891, the common council, having previously received the ■comptroller’s estimate of the amount of money necessary to carry on the city government for the ensuing year, made the regular appropriations. Among these the common council appropriated for the board of school commissioners, among other specific items, for salaries of superintendent, cleric, messenger and teachers, and allowance to orphan asylums, in addition to income from nonresident pupils, $105,350.”

In making up this estimate thus adopted by the common council "the comptroller had estimated the various salaries at the amount paid the previous year as for a full school year. The board of school commissioners at the aforesaid meeting increased many of these salaries, among them that of the office held by the relator, which the board increased from fifty dollars to sixty dollars. If ■such increased salaries should be paid for the full school year they would be in excess of the amount appropriated as above stated. The board, it is claimed, is prohibited from incurring debts beyond that amount. Hence, it is said that it would be necessary to close the schools when the appropriation should be exhausted, and that that would be before the end of the ordinary school terms. The total increase thus made by the board is about $11,000.

There are two questions of importance in this case which might be considered. The first is whether the board of school commissioners is limited in making its contracts so that it may not exceed the amount previously appropriated by the common council.

The second is, if the board does not exceed that amount, whether it may make contracts for teachers, etc., provided they are to be performed within the current fiscal year.

We will consider the second question, because that only is necessarily presented here. The board of school commissioners has not as yet exceeded the amount appropriated by the common council Nor does it necessarily follow from its action in respect to the relator that it will do so. Its action contained a proviso that there should be sufficient money set apart to pay the teachers for the whole year, and if not, then the appointment was only for such portion of the time as the money was sufficient for.

It is not disputed that this board has the authority to contract, with teachers and employ them and to pay their wages. Laws of 1873, chap. 126, § 14. A restriction is perhaps placed on the board by the Laws of 1887, chap. 6, § 4. That restriction, assuming that it applies, forbids the board from exceeding the amount “ estimated and allowed ” by the board of estimate. But the resolution of the board under consideration seems to have regard to that resolution to avoid violating it

Within that restriction, it seems to us, that the statute has left the matter discretionary with the board. If the board decides that it is best to use the money which is within its control by employing teachers at higher wages and for a shorter term than had been in the previous year, it. cannot be that the comptroller may reverse their action. His position is, that inasmuch as the estimate made by him and adopted by the common council was made on the basis-of so many teachers for so many weeks at such salaries, therefore, the board of school commissioners could not contract for fewer weeks and for higher prices. This would give the comptroller power to regulate the action of the board.

The comptroller argues forcibly that if this board can lawfully act as they have done, then the fire commissioners might so increase the salaries of their employees that the money set apart for the fire department would be exhausted in ten months and the city left defenceless against fire for the remaining two of the year. There are undoubtedly some difficulties which may arise under the plan of government of the city of Troy. When money has-, been appropriated in a general way for salaries or for any other class of expenses, it seems necessary that some officer or some board should make the specific application. That duty is not entrusted to the comptroller. In this branch of the government it is entrusted to this board. Until they attempt to draw drafts beyond the amount appropriated or to apply the money to unlawful purposes, it seems necessary that the board should use its discretion. We cannot remedy any suggested difficulties by depriving the board of school commissioners of the power given them to make contracts for teachers. This power necessarily means that they may agree upon the salaries. And when the teacher has done the work under such agreement he is entitled to his pay. That is the case before us. And unless we deny the power of the board, the relator has earned the salary agreed upon.

The position taken by the comptroller, if sustained, would authorize him to refuse to countersign any draft, on the ground that if other drafts to a large enough amount should be issued, the’ money appropriated would be exhausted. For that is really his position now. He says: “ If the board shall continue to issue drafts of the same amount with this and other similar drafts for the full fiscal year, there will be no money to pay them all,” and therefore he refuses to countersign this.

As there is money in the city treasury appropriated to the payment of the salaries of teachers, we think it is not for the comp-trailer to say how the board of school commissioners shall make ■contracts payable therefrom.

The order is affirmed, with costs.

Landon and Mayham, JJ., concur.  