Citations
- 131 A.D. 358
Full opinion text
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. •