
    The People of the State of New York ex rel. Edwin S. Harris, Respondent, v. The Board of Estimate and Apportionment of the City of Troy and Others, Appellants.
    Third Department,
    March 10, 1909.
    Municipal corporation —charter, city of second class —power of board ■ of education to provide for new school — salary— mandamus.
    The charter of 1898 for cities of the second class provided that the fiscal year shall begin January first and that a preliminary estimate of expenses shall be made in November, which becomes final on the twenty-seventh of December, and that the expenditures of the city for the year shall be limited to the items therein. The charter of 1906, which repeals the former, provides that the fiscal year begins January first, but that the annual estimate and tax budget is to.be made up within sixty days thereafter, and although such charter did not go into effect until January 1, 1908, it provides that so far as.its provisions are-substantially the same or cover the same special matter as the statute repealed, it shall be construed as a continuance of such repealed law modified' or amended' according to the language employed.
    
      Held, that the board of education of the city of Troy, a city of the second class, had power to provide for a high school of commerce in December, 1907, and appoint a principal therefor in January, 1908, although the expenditures for the same were not included in the estimates made under the charter of 1898 for the year 1908. /
    
    Where the salary of one who was duly appointed principal-of such school was left undetermined, and he for some time performed the duties of such position, he is entitled to. a -writ of mandamus requiring the board to fix. his salary.
    Appeal by'the defendants, The Board of Estimate and Apportionment of the City of Troy and'others, from an' order of the Supreme Oo.urt, made at the Ulster Special Term and entered in the office of the cleric of the county of Rensselaer on the 23d day of October, 1908, directing the issuance of a peremptory writ of mandamus requiring the board of estimate and apportionment of the city of Troy to fix the compensation of the relator as-prineipal of School Ho, 12, with powers of supervising principal and principa,! of the High School of Commerce of said city. '
    
      G. B. Wellington, for the appellants.
    
      John T. Norton, for the respondent.
   Kellogg, J.:

The board of education of the city of Troy by resolution of December 30,1907, directed that a High .School of Commerce be organized and opened in Public School Ho. 12. January 17* 1908, it resolved that such school open January 27, 1908. A new member of the. board of education was to take office February first and it was assumed -that thereby the policy of' the board of ■ education in some respects would change. January thirtieth the board adopted a resolution appointing the relator principal of School Ho. 12 “with the powers of Supervising Principal, and also Principal of the High School of Commerce, with the salary -fixed for such Principal of School Ho. 12, and such additional salary as shall be fixed by the-Board of Estimate and Apportionment to compensate him for the additional services and duties incident to the position of- Principal of said High School of Commerce, this appointment to take effect immediately.”

It is not necessary to consider whether the various resolutions passed by the board of education January thirtieth and. thirty-first purporting to make several changes in the position of teachers, created a vacancy in the principalship of School Ho. 12 so that relator’s appointment to such position became effective for the reason that the salary of* that position was fixed and known and the resolution which named the relator as principal contemplated no change in that salary. The order-appealed from is, therefore, erroneous so far as it requires the appellants to take any action with reference to ■ that salary. The only question for consideration is whether the-relator at any time held the-position of principal of the High School of Commerce, and whether he has the right to insist that his salary therefor be fixed.

The appellants urgé that the expenses for maintaining the High School of Commerce were not contained in the estimates and the final estimates for the city expenditures as contemplated by section 96 oE chapter 182 of the Laws of 1898, being “ An act for the government of cities of the second class,” and that, therefore, the relator’s appointment was invalid. By that statute the liscal year begins January first, and a preliminary estimate of the expenses for the fiscal year is to be made up in Hovember preceding, and the estimate becomes final on or before December twenty-seventh, and the expenditures of the city for the fiscal year are limited to the items included therein. Chapter 473 of the Laws of 1906, which is, also entitled An act to provide for the government of cities of the second class*” supersedes the former1 statute and expressly repeals it, and in place of the estimate and final estimates of the repealed statute the annual estimate and tax budget are substituted by sections 75,76 and 77. The law of 1906 did not.go into effect until January 1,1908, but section 229 provides that so far as the provisions of that act are substantially the same, or cover the same subject-matter, as the statutes 'thereby repealed, it shall be construed as a continuance of such repealed law, modified or amended according to the language employed therein, and not as new enactments. By the statute of 1906 the fiscal year began January first, but the annual estimate and tax budget are to be- made up within sixty days thereafter.

' I think it, is clear that under the new statute there ivas ample power to provide for a High School of Commerce, although the expenditures for the same were not included in the estimates contemplated by the statute of 1898 and its amendments. The new board of education, oil February 3, 1.908, passed a resolution abolishing the High School of Commerce. The effect of that resolution need not be considered here, for it is clear that for some time, at least* the relator performed, under due appointment, the duties of principal of such school, with the understanding that he was to receive such compensation therefor as the board of estimate and apportionment might, fix, and there is no reason why the amount should not now be determined. The order, therefore, is modified so that the. appellants are only required to fix the additional salary which the relator shall receive to compensate him for the additional services and duties incident to the position of principal of said High School of Commerce, and as so modified is affirmed, without costs.

All Concurred.

Order modified as per opinion, and as so modified affirmed, without. costs. •  