Opinion
May, 1901.
John C. Davies, Attorney-General, and Charles E. Patterson, for relator.
Thomas S. Fagan, for respondent.
This action is one to determine the title to the office of school commissioner in the city of Troy.
The relator was appointed to that office on the 8th day of March, 1899, by the then mayor of the city and he thereupon qualified and entered upon the duties of the office. On September 13, 1900, he was served with a notice from the present mayor that he was removed by him from such office. On the same day the mayor filed a written appointment of the defendant as school commissioner to fill the vacancy in the board of school commissioners for the unexpired term of the relator. Since that time the defendant has been in possession of the office and has been serving as a member of such board. The relator claims that the mayor had no lawful power to remove him and the only question presented for determination is whether he had such power. If he had not, the relator is still entitled to the office. If he had, the defendant has been lawfully appointed, and the complaint must be dismissed. The board of school commissioners of Troy was organized pursuant to chapter 80, Laws of 1892. That act provides in section 1, that "The public schools of the city of Troy shall be under the management and control of seven school commissioners, to be appointed by the mayor of said city, who shall be electors and residents of said city, and who together shall constitute a board of school commissioners." The second section provides that the persons appointed shall be divided into three classes by the mayor; two to hold office for one year, two for two years and three for three years from the second Tuesday of March after their appointment, and that "Upon the expiration of the respective terms of office of the persons so appointed, their successors shall be appointed in like manner for a term of three years, which shall be the term of office of school commissioner under this act. Whenever a vacancy shall arise in said board from any cause, the mayor of the city of Troy shall in like manner appoint a suitable person to fill such vacancy for the unexpired term of the person whom he is appointed to succeed." The act contains no provision with reference to the suspension or removal from office of the school commissioners. Under the charter of Troy (Laws of 1892, chap. 670, as amended by Laws of 1895, chap. 277, tit. II, § 1), the seven school commissioners were denominated as officers of the city and the mayor was given power by section 2 of that title to suspend them for misconduct in office or neglect of duty based upon written charges. The common council was given power by the same section to try the charges, and after notice and an opportunity to be heard in his defense to remove the officer complained of from office. This in brief is a summary of the laws in reference to the appointment, suspension and removal of school commissioners in Troy in force at the time of the passage of the act known as the "White Act" (Laws of 1898, chap. 182), for the government of cities of the second class, which includes the city of Troy. Section 49 of that act is as follows: "Except as otherwise provided in this act, the mayor shall appoint all the city officers, and except as otherwise provided in this act or in the other laws of the state, he may remove at pleasure any city officer appointed by him." Article 7 of the act last mentioned related to the "department of public instruction" and provided in section 240 that "The department of public instruction shall continue as provided by law." The other sections of the article, except the last, contained general provisions as to the powers and duties of the commissioners, the control of the schools and the school property and the appointment of subordinate officers and teachers. The last section related to the tenure of office, and was as follows:
"§ 252. All officers, principals and teachers connected with the public schools when this act takes effect, shall remain and continue in their respective positions until their positions shall become vacant by death, resignation or by removal under the procedure hereinbefore set forth."
But the next year, by chapter 581, Laws of 1899, section 40, all of article 7 was repealed except section 240, which remains as above quoted. While this repeal included section 252, which recognized a power of removal of school officers, it did not repeal section 49, which authorized the mayor to remove at pleasure any city officer appointed by him. That section remains as enacted in 1898.
The "White Act" contained the following saving and repealing clauses:
"§ 482. All statutes of the state * * * so far as inconsistent with the provisions of this act are hereby repealed.
"§ 483. Nothing contained in this act shall be construed to repeal any statute of the state * * * not inconsistent with the provisions of this act and the same shall remain in full force and effect, when not inconsistent with the provisions of this act, to be construed and operated in harmony with the provisions of this act."
It results from the legislation referred to that the department of public instruction in Troy is governed by chapter 80, Laws of 1892, and the provisions of the charter of Troy so far as the same are applicable, except where those statutes are inconsistent with the provisions of the "White Act," and where they are inconsistent with that they are repealed and the provisions of the latter act control.
The provisions of the charter of Troy gave the mayor no power to remove, but only the power to suspend a school commissioner. The power of removal was there committed to the common council. The provisions giving the power of suspension to the mayor and of removal to the common council are inconsistent with the provision of the "White Act," giving power to the mayor to remove at pleasure, and are, therefore, repealed.
The relator contends that the intent of the Legislature in passing the "White Act" and in including therein the provision (§ 240) that "the department of public instruction shall continue as provided by law" was that the board of school commissioners shall continue organized, appointed and held in office, according to the provisions of law creating the department, and that the commissioners having been appointed under the authority of chapter 80, Laws of 1892, their tenure of office for the term of three years is fixed and protected by the provision to that effect in that law.
It cannot be intended by this to insist that nothing in the "White Act" was intended to or did affect the department of public instruction, for that conclusion gives no force to several provisions of that act which have effected important changes in the powers of the school board, and to support the contention of the relator it seems to me is to also ignore the effect of the repeal by that act of statutes inconsistent with it.
That such changes have been effected is shown by the recent case of People ex rel. Gaffigan v. Rickerson, 56 A.D. 588, where it was held that the provision of subdivision 5, section 11, chapter 80, Laws of 1892, that "the said board of school commissioners shall * * * have the custody and safe keeping of the schoolhouses, outhouses, books and furniture," was repealed by the provisions of the "White Act" that the city engineer "shall act as the superintendent of public buildings" and "shall employ such subordinates to serve during his pleasure, and shall have such other assistance as the board of estimate and apportionment shall prescribe," and, therefore, that the school board no longer had authority to appoint janitors of school buildings.
Numerous other provisions of the later law are inconsistent with those of the former. For instance, under chapter 80, Laws of 1892 (§ 11), it was the duty of the school board, and they had the power, to fix and pay the salaries of teachers, of the clerk and of the superintendent of schools, while under the "White Act" (§ 98) it is made the duty of the board of estimate and apportionment to fix the salaries or compensation of all city officers and employees, except those who serve without compensation.
So under the former law (§ 11) the school board had the power and it was their duty to alter, improve and repair schoolhouses and appurtenances and to purchase, exchange, improve and repair school apparatus and furniture and provide books for indigent pupils, while under the later act (§ 120) there is created a board of contract and supply, which are charged with the duty, after public notice, to let to the lowest bidder who will give adequate security, all contracts for the performance of any work or for the supply of any materials for the various city departments, including the "department of public instruction," in all cases where the work and materials will cost to exceed fifty dollars, unless by an ordinance passed by an unanimous vote of the common council and by the unanimous approval of the board of estimate and apportionment, it is determined to be impracticable to procure the work or materials by contract.
This is sufficient to show that when the Legislature said that "the department of public instruction shall continue as provided by law" it did not mean that it was to continue without change and subject only to the provisions of the laws creating the department in the various cities of the second class, but rather meant that the department or the boards of school commissioners, whether appointed by the mayors, as was the case in Albany and Troy, or elected by the people, as was the case in Syracuse and Rochester, should continue to be so appointed or elected as provided by law, and with such changes as were made by virtue of the repeal of such provisions of the original laws creating the various boards as were inconsistent with the provisions of the "White Act." Thus does the department of public instruction in each of the cities of the second class continue as provided by law, just as the statute says it shall.
It seems plain, therefore, that so far as chapter 80, Laws of 1892, fixes the term of office of a school commissioner in Troy at three years, it must yield to the later provision contained in section 49 of the "White Act," giving the mayor authority to remove any city officer appointed by him, provided the mayor, in the exercise of his official duty, should see fit to abridge that term by a removal from office.
In a recent case in the Court of Appeals (Pryor v. City of Rochester, 166 N.Y. 548), Judge Martin reviews the history of the act for the government of cities of the second class (Laws of 1898, chap. 182), and discusses the legislative intent with reference to the powers conferred upon the mayor by that act. He quotes from the report to the Legislature of the commissioners appointed by the governor to report general laws for the government of cities of the second class, of which Judge Earl was chairman, as follows (p. 552): "We propose to give the mayor large power and great responsibility. He is the executive head of the city government. He appoints, and under certain conditions, may remove nearly all the city officers; and thus he can hold them all to responsibility for the manner in which they discharge their duties. He, himself, after a hearing and a trial of charges preferred against him, may be removed from his office by the governor. Thus, if there be bad administration of city affairs, it is easy for the electors to place the responsibility and to apply the remedy at the polls." Senate Documents, 1896, Vol. 5, No. 24.
After referring to various provisions of the act, Judge Martin says (p. 554): "It is equally clear that the legislative purpose was to confer all the executive and administrative powers of the city upon the mayor and such officers and departments as were created by law or ordinance, and that all the city officers, except as otherwise specially provided, should be appointed by him and removed at his pleasure, thus imposing upon him, as mayor, the entire responsibility of the appointments to office and of the administration of the affairs of the city, to the end that there might be a responsible head, which, if unsatisfactory, could be deposed by the electors of the city and existing evils consequently corrected."
I conclude that the mayor had the power, under section 49 of the "White Act," to remove the relator from office and, therefore, that his complaint must be dismissed.
This conclusion finds support in some recent cases arising under the provision of the charter of Greater New York, which authorizes the mayor, during the first six months of his term, to remove certain persons holding offices by appointment. People ex rel. Baird v. Nixon, 32 A.D. 513; People ex rel. Green v. Van Wyck, 159 N.Y. 509.
Judgment for the defendant, dismissing the complaint, with costs.
Complaint dismissed, with costs.