(dissenting). Obviously it is not our province to determine how abuses in the letting of contracts for high school class photographs should be eliminated. That is the responsibility of the school authorities. But when the appropriate authorities have acted by regulation (Education Law, § 2554, subd. 13) all are bound by the regulation. That includes those who made the regulation and those who are employed, in however high a capacity, by the makers of the regulation.
The regulation in this case is quite clear. It provides as follows:
“ 1. Under the direction of the principal, arrangements may be made with outside contractors for the sale to the pupils of any school, of graduation albums, class photographs, rings or pins, and similar class articles, with the understanding that local merchants be afforded a reasonable opportunity to offer their merchandise and services in connection therewith.
*495“ 2. Appropriate provision shall be made by the principal for approval by pupil representatives in any decision affecting the choice of such articles and the terms for the purchase thereof.
‘ ‘ 3. The principal or other head of the school shall certify that he believes the terms of purchase are fair and reasonable and in the interest of the pupils.
“4. No personal gain, advantage or benefit shall accrue to any teacher, supervisor or other employee or official of the Board of Education, or to any pupil in the school affected, as a result of such purchase.
“ 5. No pupil shall be compelled, directly or indirectly, to purchase any such article against his wishes.”
The action taken by the superintendent of schools is inconsistent with the regulation. With respect to paragraph 1, under the practice complained of, contractual arrangements were made centrally by the school authorities and not by the principal. The principal could only accept what had already been provided for and make arrangements solely for the times and places of performance. With respect to paragraph 2 there is, under the practice complained of, no participation by the pupil representatives ‘ ‘ in any decision affecting the choice of such articles and the terms for the purchase thereof ”. On the contrary, the pupils are permitted to participate in no more than arranging for the times and places for the taking of photographs. These are details just short of trivial. Indeed, the regulation was cast aside as if it were null or wholly irrelevant.
It is true that the regulation does not purport to detail every refinement of the arrangements that might be made with photographers. But the regulation did purport to lay down a handful of fixed principles. These principles have been patently violated in the procedure followed by the superintendent or his subordinates. Moreover, it is for the board of education, and not the superintendent of schools to determine whether the danger of abuse is greater at the school level or at the central level. For the time being the regulation evidently sought freedom from abuse at the decentralized level. That may have been wrong. Then the regulation should be changed. But not after it is disobeyed, but before the contrary practice is invoked.
The school authorities need not have adopted any regulation. In that event petitioners would have no remedy here. Or the school authorities could have promptly changed the regulation to conform with the practice they intended to institute. They did neither. They adopted regulations and then, or at least *496those under the board of education, proceeded to disobey them. It is submitted that even in little things and even where the purpose may be well intentioned it is necessary to preserve both jealously and zealously the principle that rules made in advance, known to all, should be followed. And the schools should be the very model for the following of such a principle.
Because there is no reason to doubt that the superintendent of schools may have sound factual basis for departing from the procedure prescribed by the regulation the board of education should have opportunity to change the regulation.
Accordingly, it is recommended that the order dismissing the petition be reversed and the petition be granted, with costs, to the extent that it has not become academic by reason of the passage of time and the order should contain a stay of ninety days in order to provide sufficient opportunity to change the regulation for the next school year.
Callahan, J. P., and Bergan, J., concur with Botein, J.; Breitel, J., dissents in opinion, in which Bastow, J., concurs.
Order affirmed, with $20 costs and disbursements to the respondents.