[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 23 These are consolidated actions by twenty-nine schoolmistresses, employees of the Board of Education of the City of New York, against that body, the superintendent of schools and the board of examiners. By cross appeals all parties challenge the judgment below, which affirmed an award in favor of eleven plaintiffs and a judgment of dismissal as to the remainder. Madeline Stattel, a member of the victorious group, had discontinued her action after judgment in the trial court.
We are confronted with questions concerning the validity and effect of a number of by-laws of the board relating to the salary credits to be accorded teachers re-employed by the board on account of their previous experience in the schools of New York City. All of the plaintiffs are reinstated teachers who seek increased salary credits and payment of such sums as should have accrued since their reinstatement and within the applicable Statute of Limitations.
A summary of the statutes and by-laws involved will aid in posing the questions at issue. For thirty years past the board of education has been empowered to fix the salaries of its teaching employees through its by-laws, so long as those salaries were not lower than the minimum salary schedules set forth in the Education Law (Education Law, § 882, 883,* now §§ 3101, 3102). Section 882 also has commanded that school districts employing eight or more teachers must adopt "uniform schedules of salaries for all teachers." During the same period the Education *Page 27 Law has provided that any by-laws containing salary schedules or conditions, and any amendments thereto, "shall within thirty days after the adoption thereof be filed in the office of the state commissioner of education" (Education Law, § 889, now § 3103). The schedules of salary credits to be accorded for previous experience to teachers employed in the New York City school system clearly fall within the scope of the last statute.
Prior to 1930, a teacher who was reinstated in the schools of New York City received full credit for all years of prior experience in those schools, pursuant to by-law, section 95, subdivision 8, of the board of education. At the same time, a new teacher, with previous experience in schools without the New York City system or in an industry related to his proposed subject of instruction, received a salary credit equated under by-law, section 23, of the board of examiners. The maximum credit under that schedule was seven years for twelve or more years of prior experience in a high school or college.
On January 8, 1930, the board of education adopted a new provision concerning reinstated teachers, by-law, section 95, subdivision 8(b). Therein it was provided that a reinstated teacher, who had applied for re-employment more than one year after withdrawal, should receive "credit for so much of the service standing to his credit, immediately prior to his withdrawal, as is equal to said service credit divided by the time computed in years and fractional parts of a year, which shall have elapsed between the date of his withdrawal and the date of his reemployment; provided, however, that on reemployment, he shall not receive a greater service credit than is equal to the number of years prescribed in his schedule for the maximum salary less three years." That by-law was amended, on September 25, 1930, so as to afford all who had applied for re-employment prior to September 24, 1930, full credit for all prior service.
Since 1931, section 889 of the Education Law has contained a provision that no salary schedule or condition for teachers in New York City may provide less than the salary schedules "adopted by such board of education * * * and on file in the office of the state commissioner of education" on March 5, 1931 (L. 1930, ch. 530, as amd. by L. 1931, ch. 540. The original "freeze date" was February 1, 1930). By-law, section 95, subdivision *Page 28 8(b), was not filed with the commissioner until April 20, 1932.
On July 15, 1942, the board of education repealed all of its by-laws relating to salary credit for reinstated teachers. No teacher re-employed since that date has received any credit for prior experience.
All of the plaintiffs had taught in the schools of New York City and had resigned their positions prior to 1930. All are now employed as teachers, having been reinstated at various times since that year. For our purposes they fall into two groups. The "Connolly group" now consists of eleven teachers who were reinstated after July 15, 1942, pursuant to applications filed prior to September 24, 1930. They have received no salary credits for their prior experience. The "Harman group" includes seventeen teachers who have been reinstated under applications filed after September 24, 1930. Some, re-employed prior to 1942, have received salary credits under by-law, section 95, subdivision 8(b); the remainder have received no credits.
All plaintiffs alleged four causes of action, seeking (1) a declaration that by-law, section 95, subdivision 8(b), is invalid under section 889 of the Education Law, since it was not filed within thirty days of adoption and since it affords less credit than the by-law which was then on file; (2) recovery of the difference between their lawful salaries, under the by-law on file at the freeze date, and the salaries which plaintiffs have received; (3) a declaration that the same by-law (§ 95, subd. 8[b]) is invalid under section 882 of the Education Law, since it affords less credit to plaintiffs than they would have received under by-law, section 23, of the board of examiners, and thus discriminates against reinstated teachers in favor of their colleagues whose prior experience has been gained in other schools; (4) recovery of the difference between the salaries plaintiffs have received and salaries equivalent to those afforded under by-law, section 23.
Respondents have contended that the award of salary credit to reinstated teachers is a matter within the discretion of the board, and that the by-law of July 15, 1942, effectively cancelled all provisions for such credit.
As the case now stands both courts below have held that the by-law of 1942 is invalid under the "freeze" provisions of section *Page 29 889. By-law, section 95, subdivision 8(b), has been sustained under section 889, upon the grounds that the delay in filing was merely a clerical error, that the filing provisions of the statute are merely directory, and that the by-law — duly adopted before March 5, 1931 — shall be deemed to have been on file at that date. The two dissenting Justices in the Appellate Division felt that the statute would be offended unless plaintiffs received full credit under the by-law actually on file on March 5, 1931. The by-law also has been sustained under section 882, upon the ground that plaintiffs have failed to establish an unlawful discrimination.
Consequently, the "Connolly group" of plaintiffs have received judgment in their favor on their first two causes of action, under the express terms of by-law, section 95, subdivision 8(b), rather than the theory of their complaint. The "Harman group" have suffered dismissal as to those claims, and the third and fourth causes of action have been dismissed as to all plaintiffs.
With respect to the amendment of 1942, the judgments below are manifestly correct; that by-law must fall under the mandate of section 889. We have said before that "The provisions of section 889 are clear, unambiguous and mandatory. Little room, if any, is left for construction or for discretion in their application. * * * The salaries of positions as fixed in 1931 may not be reduced" (Matter of Putnam v. Marshall, 286 N.Y. 485, 490, LEHMAN, Ch. J.). In light of the more recent case, in which similar action of the board with respect to the credit granted for "outside" experience under by-law, section 23, of the board of examiners was held invalid (Cottrell v. Board of Education of City ofN Y, 181 Misc. 645, affd. 267 App. Div. 817, affd. 293 N.Y. 792), it is impossible to conclude that the 1942 amendment should be sustained. That the board has regarded as completely discretionary its power to grant credit to reinstated teachers is immaterial, since no reservation to that effect was contained in its by-laws on March 5, 1931.
In considering plaintiffs' first challenge to the validity of by-law, section 95, subdivision 8(b), it must be conceded that the provision should have been filed with the commissioner months prior to March 5, 1931. It was not on file at that date, and was not filed until April 20, 1932. It was the duty of the secretary of the board to file the document, and we cannot question *Page 30 the trial court's finding that his default was due solely to inadvertence and clerical error. There is no indication that the commissioner performed any function with respect to the by-laws on file, save to act as their custodian.
The act of filing was a ministerial duty. We can but look to the statute to ascertain whether the Legislature has ordained that filing be essential to the validity of such a by-law. The language of section 889 prior to enactment of the "freeze" provision, and past experience with analogous statutes (People v. Karr, 240 N.Y. 348; People v. Board of Supervisors ofUlster Co., 34 N.Y. 268; Sears v. Burnham, 17 N.Y. 445; and see People ex rel. Huff v. Graves, 277 N.Y. 115, 119-122), indicate that the command was merely directory, so that an inadvertent failure to comply would not be fatal. In the amendment of 1930, the Legislature spoke of schedules "adopted * * * and on file" at the "freeze" date (L. 1930, ch. 530). I feel that those terms were intended only to denote the salary schedules then in effect, and that no special significance should be attached to the words "on file". Had it been intended to strike down any amendments properly adopted prior to the "freeze" date but not then filed, that purpose surely would have been set forth more explicitly. Thus construed, the statute permits us to sustain the conclusion below that the challenged by-law should be deemed to have been on file on March 5, 1931, and to affirm the judgment in respect of the first two causes of action.
Plaintiffs' challenge of the by-law as discriminatory, in violation of section 882 of the Education Law, rests upon the thesis that there can be no rational basis for the alleged distinction between reinstated teachers and those whose prior experience was gained in other schools or in industry. The challenge was rejected by the trial court upon the ground that plaintiffs had failed to establish that the entire class of reinstated teachers had suffered in relation to the entire class of teachers with outside experience. The court also held that section 882 related only to geographical uniformity of salary within the area administered by a board of education. Both conclusions are unsound. In the context of our well-established constitutional prohibitions against arbitrary and baseless discrimination by law (U.S. Const., 14th Amendt., § 1; N Y Const., art. I, § 11), the statute must be construed to prohibit all such distinctions. Nor should plaintiffs' challenge fail merely because they fall within a subclass *Page 31 which has suffered an unlawful discrimination not shared by some other members of their class.
However, plaintiffs' contention clearly lacks merit. Although they do not squarely raise a constitutional question, the essential similarity of the issues arising under the equal protection clauses of the State and Federal Constitutions makes it pertinent to recall that "One who assails the classification * * * must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary" (Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79). The record herein demonstrates that plaintiffs have not met that burden. On the contrary, the evidence tends to establish a rational basis for any discrimination which may exist. Eligibility requirements are far more stringent for original applicants than for those who seek reinstatement, and examinations for the latter are much simpler. Teachers seeking reinstatement take a shorter and less arduous qualifying examination, while new applicants take a competitive examination. Bearing in mind those facts and the distinctions between the two formulas — that teachers with outside experience receive an equated credit under a schedule which gives seven years' credit for twelve years of previous experience in a high school or college, while reinstated teachers receive a credit equal to their years of prior service divided by the interval between withdrawal and re-employment — it would be impossible to hold that any difference in credit was unreasonable. Therefore, the third and fourth causes of action were properly dismissed as to all plaintiffs.
Plaintiff Kratzke, re-employed under an application filed after September 24, 1930, cannot challenge herein the rejection of her prior application proffered before that date (cf. Matter ofCurtin v. Dorman, 293 N.Y. 505, 509). Her complaint was properly dismissed as to the first and second causes of action, "without prejudice to her administrative remedy, if any," under the Education Law.
The judgment should be affirmed, without costs.
* I follow the trial court in employing the section numbers used prior to the recodification of 1947. (L. 1947, chs. 778, 820.)