Rees v. Teachers' Retirement Board

Martin, J.

On this appeal the question is one of law. The order appealed from followed a determination that the appointment of the defendant Irving Crane as secretary of the teachers’ retirement board of the city of New York was illegal in view of the construction placed by the Special Term on section 1092 of the Greater New York Charter. (See 130 Misc. 442.)

The plaintiffs bring this action as taxpayers under section 51 of the General Municipal Law. The substance of the complaint is that “No member of said Board elected by the Retirement Association as required by said section 1092 of the Greater New York Charter concurred in ” said appointment of a secretary.

There are several members of the teachers’ retirement board; the president of the board of education, the comptroller of the city of New York, two members appointed by the mayor and three members elected as representatives of the teachers.

By paragraph 11 of subdivision C of section 1092 of the Greater New York Charter (Laws of 1901, chap. 466, as amd. by Laws of 1917, chap. 303) it is provided: “ The concurrence of the comptroller or of one member appointed by the mayor, of a member elected by the retirement association, and of at least two other members shall be necessary for a decision of the retirement board.”

The by-laws of the board in article 2 thereof provide:

“ Section 5. Quorum: The concurrence of the Comptroller or of one member appointed by the Mayor, of a member elected by the Teachers’ Retirement Association, and of at least two other members, at any meeting shall be necessary for any decision by the Teachers’ Retirement Board.”

It is argued that this shows clearly the understanding from the outset, of those charged with administering the retirement system that absolutely no action may be taken by the board without the concurrence of one teacher-member.

We are looldng for the meaning of the statutory provision and not for the interpretation placed on it by those who adopted the by-law based upon an interpretation suitable to their purpose. The power given by statute may not be enlarged by a by-law.

The plaintiffs seek a determination by this court that the minority of the board chosen to represent the teachers who may become beneficiaries of the fund have the power to prevent it from taking any action whatever not approved by such minority.

All the plaintiffs are teachers in the public schools of New York city, three of them being teacher-members of the board. It is their conception that none but a teacher is qualified to be its secretary.

The appellants contend that the real purpose of this action is to place the'retirement board under the control of its teacher-members who are a minority; that it has no other motive, and that if the plaintiffs succeed, such will be the result.

It will be noted that the power given to the beneficiary members by the statute is to prevent the board from making " a’ decision ” without their concurrence. Decisions must be made in connection with the retirement of teachers, the amount of pensions to be paid and related matters.

The question in this case is whether the appointment of a secretary to the board was “ a decision.”

We believe the appointment of a secretary to the board was a mere administrative detail and could not be properly termed a decision.

This distinction is made in Matter of Craig v. Matthews (238 N. Y. 88, 95), where a somewhat similar question was before the court. It was there said: "The appointment of such a secretary is neither controlled by the provision of the ordinance providing that a quorum of the board shall consist of four members of whom the comptroller shall be one nor prohibited by the provisions of the ordinance that the comptroller shall keep a journal of the proceedings of the board. * * * That provision for a quorum by its terms is limited to the performance of the duties specified in the article of which it is a part and a mere detail of the methods by which the board should discharge its fundamental duties, such as the appointment of a secretary or the selection of a meeting room would not be governed by the provision.”

It was there held that, although the comptroller had to be one of those to vote to discharge the trust and duties vested in the trustees by law, this did not apply to the appointment of a secretary who would discharge the ordinary- duties of such an office.

The respondents say that important duties are imposed upon the secretary. The appellants point out that they are solely with reference to administrative details. It is emphasized that one is to countersign warrants. Paragraph 3 of subdivision E of section 1092 of the Greater New York Charter (as amd. by Laws of 1917, chap. 303) and section 2 of article 3 of the by-laws of the board (as amd. July 22, 1919) provide that the secretary shall countersign all warrants or vouchers only after they have been lawfully authorized by the teachers’ retirement board for payment from the various funds of the teachers’ retirement system.

Naturally a restriction such as we are considering should be given no application beyond what the statute requires; for it is unusual to give a minority the power to prevent a board or body from functioning in any respect whatever. We find the purpose of the act in the fact that decisions are to be made from time to time in relation to the service and status of those seeking to actually partake of the fund for themselves as well as in relation to policies, actuarial and otherwise, directly affecting the fund and the system.

In the absence of a clear direction in the statutory provision, we should not extend its application beyond the language used, especially in view of the impractical situation which would result.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Dowling, P. J., McAvoy and O’Malley, JJ., concur; Finch, J., dissents.