The petitioners are licensed teachers whose names are on eligible lists for appointment in accordance with the provisions of the Education Law (Cons. Laws, ch. 16), section 872, to positions in the day high schools of the city of New York. None of them is among the first three persons on the lists. Two are on the history eligible lists, being number 13 and number 22, respectively. There are seventy-nine vacancies in history. One is number 29 on the English eligible list for women. There are one hundred and forty-seven vacancies in English. One is number 31 on the elocution list. There are twenty-nine vacancies in elocution.
The record is silent as to what constitutes a vacancy. We take the explanation of the term as given in the petitioners' brief. It apparently refers to a teaching position for a class or classes created by the Board of Education to which no regular appointment has been made. It appears that for some time past, the Board of Education has temporarily assigned these petitioners and others like them to teach these classes. When so assigned they are characterized as substitute teachers. Although they are on the eligible lists, their service as substitute teachers carries with it none of the rights of tenure, pension or statutory salary which go with an appointment under section 872 of the Education Law. They are paid a per diem of $7.50. *Page 163
The petitioners brought this proceeding for a peremptory order of mandamus to compel the Board of Education to cease the use of substitute teachers above described; to compel the Board of Superintendents to recommend for appointment to such vacant positions these petitioners and those having precedence of them on the eligible lists in history, English and elocution; and finally to compel the Board of Education forthwith to appoint these petitioners and those having precedence of them on said lists to such vacant positions, on the recommendation of the Board of Superintendents, for a probationary period at the annual statutory salary rate.
The order granted by the Special Term was reversed and the motion denied by the Appellate Division.
The problem confronting the Board of Education, at least in its broad aspect, is obvious. Economic and social conditions have led to a greatly increased attendance in the schools with no corresponding increase in appropriations. Even though funds were available to pay an increased number of regularly appointed teachers, it would seemingly be unwise to appoint them; for when the peak of extraordinary attendance shall have been passed — if it has not already been passed — the city might find itself saddled with a large number of life appointees for whose services it had no use. Power to meet such an emergency by resort to some such expedient as it has used, the Board of Education should have. But, differing with the Appellate Division, we fail to find anywhere a grant of such power, either express or fairly implied. As the emergency was unforeseen, so the need of power to meet it was unforeseen. Substitute — or as they are sometimes called — supply teachers have been used time out of mind; but only to take the place temporarily of absent regular teachers or to meet a sudden and momentary emergency created by the death or removal of a regular teacher. While we find no express authority even for that practice in the statutes, *Page 164 the necessity for it has been common and generally recognized, so that it may fairly be said to fall within the general omnibus provisions of section 868 of the Education Law. But those provisions may not be stretched to cover the practice here in question. We are told that there are twelve hundred so-called substitute teachers employed in the day high schools in the city. If that is lawful, then by the same reasoning the entire teaching staff might conceivably be so employed. In the face of the mandatory provisions of section 872 of the Education Law, that may not be. If the Board of Education cannot solve its problem by means of appointing and then discontinuing the service of probationers within the provisions of that section, relief must be had from the Legislature.
The foregoing views, however, are not decisive of this particular proceeding. Whether and when to appoint teachers in the manner provided by section 872, rests in the sound discretion of the Board of Education. It is given the power and it is its duty "to appoint * * * such * * * teachers * * * as said board shall determine necessary for the efficient management of the schools." (Education Law, § 868, subd. 2.) How many teachers shall be appointed, for what classes and in what subjects and when, depend upon the judgment of the Board of Education as to what efficiency under any given set of circumstances demands. Efficiency is not determined mechanically by the number of teachers. Other matters are embraced in the concept. The mere existence of the so-called vacancies in history, English and elocution does not ipso facto cast an absolute and mandatory duty upon the Board of Education to fill them or any of them regardless of other considerations. If this court were to order the Board of Superintendents to recommend and the Board of Education to appoint these petitioners and those who precede them on the eligible lists, it would be substituting its judgment and discretion for those *Page 165 of the two Boards, and it would be doing so without any data to guide it. This it cannot legally do.
Since the petitioners have shown no clear legal right to the relief prayed for, the order of the Appellate Division was right and should be affirmed, with costs.