
    The People of the State of New York ex rel. Mary O’Brien, Appellant, v. John Haughran and Others, Members of and Constituting the Town Board of the Town of Plattsburgh, Clinton County, New York, Respondents.
    
      Pension by a town to teachers of twenty-jvoe years’ service —form of procedure — teachers entitled, to the pension.
    
    Chapter 767. of the Laws- of 1895 'authorizes the submission to the electors of a town of the question whether they will make provision by taxation “ for a sum of money sufficient to pay such teachers, resident of such town, who have been employed in the common schools thereof for not less than twenty-five years,” a pension, and provides that if the vote is. in favor of raising such a fund the town board shall immediately thereafter proceed to ascertain what teachers are entitled to recover their proportionate share of the amount “ so voted.” Twenty-five taxpayers of a town having presented a petition asking for the submission at the next annual town meeting “of the question of making provision by taxation upon the taxable property in said town for a sum of money sufficient to pay Wm. H. Phillips (who has taught in the common schools thereof for over twenty-five years) a pension, as provided by chapter 767 of ■ the Laws of 1895,” the question “ Shall a sufficient sum of money be raised to provide for a teachers’ pension fund? ” was submitted and favorably voted upon at the town meeting.
    
      Meld,- that a teacher not mentioned in the petition, and who had not been employed in the common schools of the town for twenty-five years at the time the vote was taken, was not entitled to a pension upon subsequently completing her twenty-five years’ service, especially where it did not appear that notice of the submission of the question voted upon was ever published or posted.
    .Appeal by the relator, Mary O’Brien, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered' in the office of the clerk of-the county of Clinton on the 17th day of November, 1899, denying the relator’s motion for a peremptory writ of mandamus directed to the defendants, commanding them to declare the relator entitled to the benefits of chapter 767 of the Laws of 1895, and to certify the name of the relator to the board of supervisors of the county of Clinton as one of the persons entitled to a pension of $175 under said statute.
    
      William, L. Pattisson, for the appellant
    
      David H. Agnew, for the respondents.
   Parker, P. J.:

On March 3, 1896, there was submitted to a vote of the taxpayers of the town of Plattsburgh in this State the question: “ Shall a sufficient sum of money be raised to provide for a teachers’ pension fund ? ” and we may concede that it was carried by a majority of five votes.

The relator in this matter claims that such submission was held under the provisions of chapter 767 of the Laws of 1895, and that by reason of such vote she is entitled to the pension provided for by that act.

At the time such vote was taken, she had not been employed in the common schools of such town for twenty-five years, her services having commenced therein in September, 1871. She continued her teaching, however, from that date up to June, 1898, and at the time she made the application to the town board of such town she had taught continuously for upwards of twenty-five years. Such application was made on June 23, 1899, and requested such board to estimate her pension in the town expenses and report it to the board of supervisors, to the end that a tax might be raised to pay the same., The town board refused so to do, and an application was made at Special Term for a peremptory mandamus to such board, requiring it to do so. The Special Term denied such application, and from the order so made this appeal is taken.

It further appears from the record before us that in February, 1896, twenty-five taxpayers of such town petitioned for the submission at the next annual town meeting “ of the question of making provision by taxation upon the taxable property in said town for a sum of money sufficient to pay Wm. H. Phillips (who has taught in the common schools thereof for over twenty-five years)', a pension as provided by chapter 767 of the Laws of 1895;” and-the vote above referred to was had in response to such petition. No other petition under such chapter has ever been made by any of the taxpayers of such town. Also, it appears from the return in this matter that no notice that such question would be so submitted to the voters of such town was ever published in any of the newspapers of such town, although there were several newspapers published therein. Also, it does not appear in the record that any notice of such submission was ever posted in any public place in such town.

Upon this state of facts, I am of the opinion that no vote has ever been had which authorized the town board to report to the supervisors the name of this relator as a teacher entitled to a pensión under the provisions of such act, and that it correctly refused so to do.

Even if the statute is to be construed as providing that when once a vote has been had authorizing a sum of .money to be raised for the purpose of paying a pension to teachers who shall thereafter, in all coming years, have served for twenty-five years continuously, nevertheless it is clear that such a vote can be had only after a strict compliance with all the requirements of such statute as preliminary thereto. The petition of the twenty-five.taxpayers in this case asks that a sum of money be raised sufficient to pay one teacher only, viz., Wm.-H. Phillips. This is a very different petition from the one which would be required under the statute to impose upon the town a burden for all time to pay all the teachers who might thereafter serve twenty-five years. So, also, the necessity of "giving public notice that such an election was to be had is plainly required. In this case no notice whatever that such a question was to be voted upon was ever given. . . •

It is.very clear that the petitioning taxpayers never intended that any larger sum should be voted than was sufficient to pay the pension to Phillips, and that the town has never knowingly and lawfully voted a pension to those teachers occupying the position of this relator. For these reasons alone the board was right in rejecting her claim.

But it seems equally clear that, had the petition and notice- been regular in all respects, the vote would not have had reference to this relator. . The statute provides that the question submitted shall be as to making provision by taxation, etc., “ for a sum of money sufficient to pay such teachers resident of such town who have been employed in the common schools thereof for not less than twenty-five years,” etc. Here is a distinct class named, viz., those who have at that date been"employed, etc., and the sum to be raised is sufficient to pay that class only. A teacher who has not then served his twenty-five years is not in the category to which the ■ vote applies. The statute further provides that if the vote is in favor of raising such a. fund, the town board shall iinmediately thereafter proceed to ascertain what teachers are entitled to recover their proportionate share of the money “ so voted,” thus indicating that such fund was intended for a definite class then in existence. Under this construction, the taxpayers would be able to form some estimate of the extent to which their town would be burdened. by the vote asked for. And they may from time to time, upon further petition, vote such a sum as the then condition of affairs would seem to require. But I am of the opinion that it is not the intent of the statute to permit one vote taken upon one petition to place an unknown burden upon all coming generations.

For the reason then that this relator has never been voted any pension, her application for a mandamus was properly denied.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  