
    Josephine G. McKenna, Plaintiff, v. The Board of Education of the City of New York, Defendant.
    (Supreme Court, Kings Trial Term,
    March, 1916.)
    Schools — hoard of education — when teacher not entitled to annual increase — when approval of hoard of superintendents is not void — Greater New York Charter, § 1091.
    By the statutory proviso to section 1091 of the Greater New York Charter and the by-laws of the board of education the annual increment of forty dollars to the salary of female teachers after the twelfth year of service is made to depend upon the inspection and approval by the board of superintendents of the service of a teacher as fit and meritorious. Held, that a teacher who had substantially completed eleven years of service and been awarded the due increase and who was then at her own request during the succeeding eight years taken from class work and assigned to a position referred to in the by-laws of the board of education as an “ additional teacher,? during which period her duties were those of a principal’s clerk being called upon to teach only in the absence of both a regular class teacher and a substitute teacher, was not entitled to the annual increase provided by said section 1091 which makes such increment dependent upon the inspection and approval by the board of superintendents.
    Section 1091 of the Greater New York Charter as amended in 1900 by the “Davis Law” applies only to members of the regular teaching staff and plaintiff had voluntarily taken herself out of that category.
    
      It appearing that plaintiff’s service had not been inspected and approved as fit and meritorious by said board of superintendents as required by said section 1091, she was not entitled to recover arrears of salary even if she were to be regarded as a member of the teaching staff.
    The basis of appointment and promotion in the public service not being entirely self executing, it was within the power of the legislature to remit the establishment of standards to the appropriate administrative agencies, and the provision of said section 1091 requiring the approval of the board of superintendents is not void for lack of definite sense or standard, attributable to the words “ fit and meritorious.”
    Action by a teacher in the public schools to recover arrears of salary. The case after having been reached on the Trial Term calendar in April, 1915, was, in February, 1916, submitted on an agreed state of facts.
    John J. Curtin, for plaintiff.
    Charles McIntyre, assistant corporation counsel, for defendant.
   Kelby, J.

This controversy arises out of the statutory proviso to section 1091 of the Revised City Charter, and the by-laws of the board of education, whereby the annual increment of forty dollars to the salary of female teachers after the twelfth year of service is made to depend upon the inspection and approval by the board of superintendents of the service of the particular teacher as “fit and meritorious.’’ Plaintiff, who had substantially completed eleven years of service in November, 1901, and been awarded the due increase, was then, at her own request — repeatedly during the succeeding years up to November, 1909 — taken from class work and assigned or appointed to a position which is referred to in the by-laws of the board of education as that of “ additional teacher.” During these years the service of plaintiff was not inspected or approved by the board of superintendents, nor did she receive the annual increase of salary, and she now sues for such, as arrears due, though it is not disputed that as to the time prior to March, 1906, the claim is barred by the Statute of Limitations.

The decisive question as to plaintiff’s right to inspection, approval and increase is whether plaintiff while acting as additional teacher during these years was a member of the teaching staff of the public schools. Concededly she was such before her appointment as additional teacher, and concededly she became such after November, 1909, when she went back to regular class teaching work. The title “ additional teacher,” is less accurate than “principal’s clerk” would be, regard being paid to the incumbent’s regular duties of attending to the business details of the school, such as making up payrolls and reports, being called upon to teach only in the absence both of a regular class teacher, and a substitute teacher.

Section 1091 of the Revised City Charter applies by enumeration to those entirely engaged in teaching work; that is, to kindergartners, men and women teachers of classes, men and women first assistants and vice principals, and men and women heads of departments and assistants to principals. It is not to be doubted that, as amended in 1900, into its present form, by what was popularly known as the Davis Law, its paramount, if not its expressed, concern was with the salaries of the regular teaching force. So it has been held that neither in language nor spirit does the statute demand the application of its provisions to other than those of the regular teaching staff, and that teachers of special subjects, such as teachers of German, are not within it. Matter of Hulshof, N. Y. L. J. May 26, 1908; affd., 130 App. Div. 903; Ohmstede v. Board of Education, N. Y. L. J. Oct. 24, 1908. There is even less reason to warrant a construction whereby it will be made to apply to principals’ clerks whose duties are clerical by routine, and pedagogical only by emergency. I am not overlooking that in this case it so happened that the clerk had theretofore been a regular class teacher. Any other person “ holding a substitute or a higher license, but not eligible for appointment as a regular teacher ” was eligible under the by-laws, and might just as well have been appointed, and would not have carried into the place as plaintiff did the maximum salary that a teacher of eleven years’ service could have for regular class work. Having at her own request given up such teaching work, and asked and received an appointment to work which, it must be presumed, she then regarded as preferable, plaintiff ceased to be a member of the teaching staff, and took herself out of the category of those entitled by the statute to have their teaching services periodically inspected and approved as fit and meritorious for the prescribed annual increment. As to the by-law of the board, passed to effectuate the statute, it cannot be taken as broader than the statute, which it assumed to define, and if the statute did not include a principal’s clerk, a fortiori, the by-law did not.

If, however, she is to be regarded as a member of the teaching staff, then an insuperable difficulty to success in this action is apparent; for her service has not been inspected and approved as fit and meritorious by the board of superintendents, and she thus does not show compliance with the prescribed statutory conditions. Her proper remedy would appear to be by way of mandamus to compel the board of superintendents to act. It is suggested that the provision requiring the approval of the board of superintendents is void for lack of definite sense, or standard, attributable to the words “ fit and meritorious.” The idea advanced in Eagan v. Board of Education, 115 N. Y. Supp. 165, that these “ vague and elusive ” words were entitled to “ no other effect in the statute than that which any mere gibberish would have,” must be rejected. In Watson v. Board of Education, 91 Misc. Rep. 323, this court upheld the requirement of a certificate of a board of examiners of superior merit,” words which might be said to be more elusive still. The decisions in People ex rel. Berry v. Cook, 155 App. Div. 901; Richards v. Board of Education, 144 App. Div. 932; 145 id. 920, are in substance to the same effect, though no written opinions were delivered. Upon reason the constitutional principle of merit and fitness, as the basis of appointment and promotion in the public service, not being entirely self-executing, there unquestionably must be power in the legislature to remit the establishment of standards to the appropriate administrative agencies, in direct and experienced touch with the needs and practicalities of particular situations; this legislative power has been upheld even to the extent of authorizing the acceptance of the bare ‘ ‘ recommendation ” of a superior, truly ‘ ‘ as broad a grant of power as human language could frame.” See Matter of Hamburger v. Board of Education, 109 App. Div. 427; also Matter of Keymer, 148 N. Y. 219; People ex rel. Sweet v. Lyman, 157 id. 368; Buckbee v. Board of Education, 115 App. Div. 366. I am of opinion, therefore, that the complaint must be dismissed upon the merits, with costs.

Judgment accordingly.  