Misc. 214] Supreme Court, March, 1922. The writ was sus tion made by the council for the board for said fiscal year. tained at Special Term and in the Appellate Division but the Court of Appeals, which had theretofore held (Matter of Hirshfield v. Cook, 227 N. Y. 297) that boards of education have not the exclusive authority to determine the amount to be expended in their department for purposes other than salaries of teachers and other employees, by a divided court, dismissed the writ by a decision to the effect that although the board had exclusive power to employ teachers and other necessary employees and to fix their compensation, yet with respect to the number of teachers and other employees required, the city council by virtue of its possessing all of the executive and administrative powers of the city and the exclusive power to levy taxes, by implication had concurrent power to the extent that by reducing the gross amount requested by the board, it might limit the authority of the board with respect to the number of teachers and other employees or the amount to be expended therefor and for other purposes. Held, that having in mind that by said statute of 1917 the legislature, pursuant to the mandate of section 1 of article IX of the Constitution of the state, had taken over from the municipalities, for direct administration by the state, the education of all children, and had conferred upon the boards of education exclusive authority with respect to everything incidental to said education, save only that left the municipal authorities, who were vested with a reasonable discretion with respect to approving the estimate of the funds required to be raised by local taxation for such purposes, an important question not free from reasonable doubt was presented by the mandamus proceeding. The fact also that it was deemed necessary to employ special counsel to assist the law department in defending against the mandamus proceeding, and that his bill was audited and paid, made it clear that there was reasonable ground for the proceeding and that the board was warranted in retaining counsel, provided that it was authorized in any circumstances to employ attorneys and counsel. Several months after the mandamus proceeding was instituted, the city council upon the asserted authority of the decision in Matter of Hirshfield v. Cook, 227 N. Y. 297, and upon the recommendation of the commissioner of finance and accounts. and of the corporation counsel, adopted a resolution for a public investigation to be conducted by said commissioner, of the business management, direction and administration of the affairs of the board of education and of all matters incidental thereto and making an appropriation therefor. Upon being informed that the corporation counsel had been requested and directed to appear upon such investigation as counsel for the council and said commissioner, which he did, the board assuming, as it had the right to do, that the investigation would be conducted in a spirit antagonistic to it, retained both of the relators herein as counsel to represent it upon such investigation. Held, that in the circumstances, regardless of whether there was or was not an available appropriation for the employment of counsel for the fiscal year and without applying for an emergency appropriation as authorized by section 877 (8) of the Education Law, the board necessarily had the incidental and implied power to employ counsel to present to the court for adjudication its contention that it was vested with exclusive authority to determine the extent to which the children of the city should be afforded opportunity for education, and that its determination, with respect to the number of teachers required, was neither subject to review by nor approval of the city council. Upon the return of an order to show cause why a peremptory writ of mandamus should not issue commanding the city commissioner of finance and accounts to countersign an order drawn by the board of education on the city treasurer in favor of relators, as compensation for legal services in the mandamus proceeding and upon the said investigation, it was undisputed that the employment of relators was regularly made and that their bills for services were presented in due form and pursuant to duly adopted resolution. Upon granting the writ, held, that there being sufficient funds in the appropriation for the board not required for other specified purposes, the board was authorized to draw Supreme Court, March, 1922. [Vol. 118 the order in question and that it was not prohibited from so doing by section 877(10) of the Education Law. The respondent could neither question the employment of relators nor the amount at which their bill had been duly audited by the board, and was, therefore, in duty bound to countersign it and upon its being so countersigned it will be the duty of the city treasurer to pay it. MOTION on the return of an order to show cause why a permanent writ of mandamus should not issue commanding the defendant, as city commissioner of finance and accounts of the city of Buffalo, to countersign an order drawn by the board of education of said city on the city treasurer in favor of the relators as compensation for legal services. Simon Fleischmann (Martin Clark, of counsel; Fleischmann & Pooley, attorneys), for relators. Ralph K. Robertson, Assistant Corporation Counsel (William S. Rann, Corporation Counsel, attorney), for defendant. LAUGHLIN, J. The uncontroverted facts show that the relators are attorneys and counselors at law practicing their profession as copartners; that the board of education of the city of Buffalo, which for brevity will be designated the board, employed the relator Fleischmann to institute and conduct a mandamus proceeding, which will be presently described, and subsequently employed the relators to represent the board in a public investigation of the business management, direction and administration of the affairs of the board authorized by resolution of the city council, which for brevity will be referred to as the council, on the 19th of July, 1920, which designated the defendant to conduct said investigation and appropriated to his credit $5,000 therefor, to be expended on his vouchers. Each employment was without any express agreement with respect to the compensation. The attorneys rendered the services for which they were retained under the first employment and incurred incidental disbursements of the reasonable value and amount of $2,557.94, and under the second employment of $5,000; and an order was drawn by resolution of the board for the aggregate amount thereof in due form. The countersignature of the order by the defendant, as city commissioner of finance and accounts, was a condition precedent to the right of the payees thereof to receive the money from the city treasurer. The defendant refused to countersign the order and attempts to justify his refusal on the grounds that the board of education was not authorized to employ the relators and that no moneys had been appropriated by the city council from which said payment could lawfully be made. By virtue of the provisions of section 865 of the Education Law (Laws of 1910, chap. 140), added to the Education Law by chapter 786 Misc. 214] Supreme Court, March, 1922. of the Laws of 1917, a board of education was established in each city of the state, and by virtue of section 300 of the Education Law each of said boards of education became a body corporate and authorized to sue and may be sued the same as a natural person. State Const. art. VIII, § 3. The first employment of the relator Fleischmann was with respect to a controversy which arose between the board and the council with respect to the appropriation made by the council for the board for the fiscal year commencing July 1, 1920; and the second employment, which was of both relators, was occasioned by a subsequent investigation of the board by the defendant by direction of the council. On the 1st of February, 1920, the board, as required by section 877 of the Education Law, prepared an itemized estimate of the moneys required by the board for the ensuing fiscal year, aggregating $5,811,831, and an estimate of the revenues, aggregating $525,000, it was expected the board would receive from sources other than city taxes, and duly filed said estimates with defendant. A controversy thereupon arose between the council and the board with respect to the authority of the former to revise by reducing the estimate as to the salaries for teachers and other employees. On the 21st of April, 1920, the council reduced the board's estimate by the sum of $498,230, and of that amount $343,928 was a reduction of the estimated amount for the salaries and compensation of teachers and other employees; and the council increased the board's estimate of revenues by $5,000; and it adopted the estimates as so reduced and increased, and in so doing included in the budget for the fiscal year under the heading "Resources to apply on Board of Education Appropriation," as items of estimated revenue the following: (1) From the state of New York and other sources, $500,000; (2) from the board of education revenue account, $25,000; and (3) from unexpended balance of appropriation for former year for purchase of typewriters, $5,000. The board thereupon determined that it was a matter of public concern that the power and authority of the council over the estimates made by the board should be judically decided, and that to that end a mandamus proceeding should be instituted to compel the council to adopt the estimates as presented by the board. The board requested the corporation counsel to institute and conduct such a proceeding in its behalf, but he refused so to do and advised the board that if such a proceeding were instituted, it would be his duty to represent the council. In said estimates as in its estimates for former years the board included an item for the salary of an attorney to be appointed by it, but the council Supreme Court, March, 1922. [Vol. 118 in so reducing the estimates struck this item out as it had done in former years. The board had always asserted its right to appoint an attorney, but since no appropriation was made therefor, it has in the interests of economy availed itself of the voluntary services of the corporation counsel who theretofore rendered to it legal services and advice when called upon so to do, excepting when a controversy arose between the council and the board, and in such cases the board employed other attorneys, but it does not appear how they were compensated. On the refusal of the corporation counsel to institute the mandamus proceeding and being advised that he would represent the council, the board employed the relator Fleischmann, who prepared the necessary papers and instituted the mandamus proceeding on the 29th of April, 1920, and conducted it through all of the courts. It was decided in favor of the relator at Special Term (Matter of Emerson v. Buck, 112 Misc. Rep. 1) and in the Appellate Division (194 App. Div. 81); but the Court of Appeals, by a divided court, reversed the order for the writ and dismissed the proceeding on the 1st day of March, 1921 (230 N. Y. 380). It appears that the appeal was decided before the opinion was formulated, and a memorandum prepared by Judge Andrews, who wrote the opinion, with respect to the effect of the decision, was publicly announced when the appeal was decided, as follows: "The decision of the court holds that the city council of Buffalo has the right to determine how much it shall spend for educational purposes. This includes salaries, maintenance and repairs. The court does not hold that the city has the right to reduce or raise the amount of any salary item submitted by the board of education, but holds that the council can fix the total education appropriation." The effect of the decision of the Court of Appeals, as I understand it, is that although the board has exclusive power to employ teachers and other necessary employees and to fix their compensation, yet with respect to the number of teachers and other employees required, the council, by virtue of its possessing all of the executive and administrative powers of the city and the exclusive power to levy taxes (City Charter of Buffalo, §§ 40, 102 (Laws of 1914, chap. 217); Education Law, § 877, subd. 6), by implication has concurrent power to the extent that by reducing the gross amount requested by the board, it may limit the authority of the board with respect to the number of teachers and other employees that may be so employed or the amount to be expended therefor and for other purposes. People ex rel. Cropsey v. Hylan, 199 App. Div. 218; affd. 232 N. Y. 601. It had been theretofore held in Matter of Hirshfield v. Cook, 227 N. Y. 297, that boards of education have not the exclusive authority to determine Misc. 214] Supreme Court, March, 1922. the amount to be expended in their department for purposes other than salaries of teachers and other employees. It is to be borne in mind that pursuant to the mandate of section 1 of article IX of the state Constitution, the legislature, by the said act of 1917, had taken over from the municipalities for direct administration by the state, the education of all children and had conferred upon the boards of education exclusive authority with respect to everything incidental to such education save only that left the municipal authorities vested with a reasonable discretion with respect to approving the estimate of the funds required to be raised by local taxation for such purposes. Matter of Emerson v. Buck, supra; Miller v. Tayntor, 170 App. Div. 126. If the board had acquiesced in the reduction of its estimates without obtaining from the court a decision limiting and defining the authority of the council in that regard, the council on a future occasion by a greater reduction, might have more seriously impaired the franchises of the board. That an important question of law not free from reasonable doubt was presented by the mandamus proceeding is not only evidenced by the fact that the board's claim was sustained by the Special Term and Appellate Division and that the reversal by the Court of Appeals was by a divided court, but also by the fact that the corporation counsel and the council deemed it necessary to employ special counsel to assist the law department in defending against the proceeding and audited and paid his bill for $5,000 therefor, which was twice the amount charged by the relators for conducting the mandamus proceeding. It thus plainly appears that there was reasonable ground for the institution of the mandamus proceeding, and that the board was warranted in retaining the relators to conduct the same, provided it was authorized in any circumstances to employ attorneys and counsel. As might reasonably be expected, it appears that the controversy between the council and the board with respect to the right of the council to reduce the estimate made by the board as to the salaries and compensation of employees became sharp and acute and was the subject of widespread discussion by the public and in the press; and on July 9, 1920, something over two months after the mandamus proceeding was instituted, the council on the recommendation of the defendant and of the corporation counsel adopted a resolution for a public investigation to be conducted by defendant of the business management, direction and administration of the affairs of the board and of all matters incidental thereto, and making an appropriation therefor, as herein before stated. The asserted authority of the council for such investigation was the decision in Matter of Hirshfield v. Cook, supra, in which |