
    People ex rel. Cronin v. Coffey, Comptroller.
    
      (Supreme Court, General Term, Third Department.
    
    November 30, 1891.)
    1. Schools—Compensation op Teachers—Exhausting Appropriations.
    Laws 1887, o. 6, § 4, which provides that the board of school commissioners of the city of Troy shall not contract to pay teachers a gross amount in excess of that allowed by the board of estimate for the school year, does not operate, so long as the board keeps within such restriction, to prevent them from contracting with teachers at a rate which will exhaust the appropriation made in pursuance of such estimate before the end of the school year; the effect thereof being merely to shorten the school year, and not to exceed the appropriation.
    2. Same—Countersigning Warrant—Mandamus.
    In such case, the board of commissioners having appointed relator teacher at an increased salary for the year beginning March 1st, “provided there be sufficient money properly set apart to pay * * * 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, ” and there being money in the'treasury of the city appropriated to the payment of salaries of school teachers, a peremptory mandamus will issue to compel the comptroller to countersign relator’s warrant in payment of her services as teacher for one month.
    Appeal from special term, Bensselaer county. Affirmed.
    Application by Nellie A. Cronin for a peremptory mandamus against James W. Coffey, comptroller of the city of Troy. From an order granting the mandamus the comptroller appeals.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      William J. Roche, for appellant. Warren, Patterson & Gambell, (Charles E. Patterson, of counsel,) for respondent.
   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 Ho. 10. Her salary was at the same meeting made $60 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 refuses 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, clerk, messenger, and teachers, and allowance to orphan asylums, in addition to income from non-resident 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 $50 to $60. 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., at its discretion, 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. Hor does it necessarily followfrom 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 1873, c. 126, § 14. A restriction is perhaps placed on the board by Laws 1887, c. 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 employes that the money set apart for the Are department would be exhausted in 10 months, and the city left defenseless against Are for the remaining 2 months of the year. There are undoubtedly some difBculties 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 oñicer or some board should make the speeiAc application. That duty is not intrusted to the comptroller. In his branch of the government it is intrusted 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 diAiculties 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 wcn'd 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 Ascal 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 comptroller to say how the board of school commissioners shall make contracts payable therefrom. The order is añirmed, with costs. All concur.  