Board of Ed. of Central School Dist. No. 1, Towns of East Greenbush et al. v. Allen

• Citation: 273 N.Y.S.2d 239,51 Misc.2d 297
• Decision Date: 18 August 1966
• Docket Number: T,No. 3,3
• Parties: BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, TOWNS OF EAST GREENBUSH ET AL., and Board of Education of Union Free Districtowns of North Hempstead and Oyster Bay, Nassau County, New York, Plaintiffs, v. James E. ALLEN, Jr., as Commissioner of Education of the State of New York, Defendant and Michael Rock, Anthony Dwileski, Peter Girzone, Doreen Beaudin, Charles Haigh and Barbara Brennan, Intervenors-Defendants.
• Court: United States State Supreme Court (New York)

Page 239

273 N.Y.S.2d 239

51 Misc.2d 297

BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, TOWNS OF EAST GREENBUSH ET AL., and Board of Education of Union Free District No. 3, Towns of North Hempstead and Oyster Bay, Nassau County, New York, Plaintiffs, v. James E. ALLEN, Jr., as Commissioner of Education of the State of New York, Defendant and Michael Rock, Anthony Dwileski, Peter Girzone, Doreen Beaudin, Charles Haigh and Barbara Brennan, Intervenors-Defendants.

Supreme Court, Special Term, Albany County.

Aug. 18, 1966.

Louis J. Lefkowitz, Atty. Gen., Albany, for defendant (Jean M. Coon, Asst. Atty. Gen., of counsel).

James J. MacKrell, Latham, for intervenors-defendants (Porter r. Chandler, New York City, of counsel).

Marvin E. Pollock, New York City, for plaintiffs.

T. PAUL KANE, Justice.

Section 701, Subdivision 2 of the Education Law of the State of New York was amended by Chapter 320 of the Laws of 1965 to become effective September 1, 1966. It provides as follows:

'2. In the several cities and school districts of the state, boards of education, trustees or such body or officers as perform the function of such boards shall have the power and duty to purchase and to loan upon individual request, to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law, textbooks. Textbooks loaned to children enrolled in grades seven to twelve of said private schools shall be textbooks which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education, trustees or other school authorities. Such textbooks are to be loaned free to such children subject to such rules and regulations as are or may be prescribed by the board of regents and such boards of education, trustees or other school authorities.'

The significant portion of this amendment is, of course, the requirement that school districts must purchase textbooks for pupils enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law. Plaintiffs are the Board of Education of Central School District No. 1, Towns of East Greenbush, Nassau, Schodack, Sand Lake and North Greenbush, Rensselaer County and Chatham, Columbia County, and also the Board of Education of Union Free District No. 3, Towns of North Hempstead and Oyster Bay, Nassau County, New York, pursuant to a stipulation of the parties and an order of this court. Said plaintiffs, hereinafter known as 'Greenbush Board' and 'Roslyn Board' respectively, bring an action against James E. Allen, Jr. as Commissioner of Education of the State of New York, and seek a judgment declaring the above mentioned portion of Chapter 320 of the Laws of 1965 unconstitutional and void and to restrain the defendant from appropriating any money for the purposes of said section or any other action in regard thereto. Heretofore parents of certain pupils, residents of plaintiff's Greenbush Board District, who attend private schools and who are entitled to the benefits proposed by the statutory provision under attack, have been granted leave to intervene by order of the court. They shall hereinafter be identified as 'intervenor-defendants'.

The defendant Commissioner has moved to dismiss the complaint, or in the alternative for judgment declaring the statute in question in all respects constitutional and valid. Intervenor-defendants make a similar motion and the plaintiffs cross-move for summary judgment for the relief demanded in the complaint. There is thus before the court the determination of the constitutionality of a state statute. The answer of the defendant Commissioner contains five separate affirmative defenses, the third of which questions the plaintiffs' standing to bring such an action against the State or an officer thereof, and also the plaintiffs' capacity to question the constitutionality of a state statute. Obviously a disposition of this defense must be made before there can be any consideration of the merits of the action.

To this court the matter of status or standing is not clear cut. Granted there is apparent substantial authority prohibiting a municipality or agency of the state from challenging a state statute (Black River Regulating District v. Adirondack League Club, 307 N.Y. 475, 121 N.E.2d 428), but the rule could be subject to some conditions and limitations, which appear particularly appropriate in the pending matter. A school district and its Board of Education is more than a mere agent of the State. It is an entity performing a state purpose pursuant to the mandate of the people as directed by their constitution. (New York State Constitution Article 11, Section 1; Education Law, Section 2(14); Matter of Divisich v. Marshall, 281 N.Y. 170, 22 N.E.2d 327). The fulfillment of its purpose requires considerations that exceed the powers of a regulating district as prescribed in the Black River case, supra. This distinction is recognized by the statutory definition of defendant's powers which refer to the Commissioner's advice and guidance to the school officers of all districts of the state 'in relation to their duties and the general management of the schools under their control'. Education Law, Section 305(2). Among these duties is a requirement to comply with the provisions of the Education Law. If, however, the Board of Education, as evidenced by this action, concluded that they were being compelled to perform an unlawful act, what is their remedy? Certainly they should have the right to properly litigate any question affecting the performance of their duties. 'A grant to school organizations of the power to maintain actions implies a legislative intent that such organizations should prosecute any actions they might deem necessary for the protection and preservation of school funds and property.' 79 C.J.S. Schools and School Districts, § 429.

The members of a Board of Education should not, as an alternative, be subjected to a removal statute. (Education Law, Section 306). Furthermore, they should not be required to perform and be met with a taxpayer's action. As an additional impediment to access to the courts, there is considerable authority for the position that such an action would not lie under General Municipal Law, Section 51, since it has been held that a school district is not a municipal corporation. (General Municipal Law, Section 2; Brooks v. Wyman, 220 App.Div. 204, 220 N.Y.S. 615, affd. 246 N.Y. 534, 159 N.E. 640; Johnston v. Gordon, 247 App.Div. 40, 284 N.Y.S. 149.) An action brought by a resident of the district as a taxpayer, would be met with the identical barrier offered as defendant's third affirmative defense. (St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15; Bull v. Stichman, 273 App.Div. 311, 78 N.Y.S.2d 279, affd. 298 N.Y. 516, 80 N.E.2d 661.) While there may be historical and practical considerations for the rule as established, there are graver and more disturbing problems created by a broad application thereof. Specifically, can these plaintiffs in effect be foreclosed from access to the courts? To pursue the matter further, an extension of this rule will eventually not only restrict the court in, but effectively prohibit it from the performance of its function in the balance of power structure as a third arm of our government. This power in the court to strike down a statute as unconstitutional belongs to the people, and while it requires the imposition of limitations and restraints, certain flexibility should also exist in order to avoid an unjust result. In other words, this power in the courts is so basic that a denial of it to the people could, per se, be a violation of a constitutional right. (U.S. Constitution, Amendment XIV, Section 1; City of Buffalo v. State Board of Equalization and Assessment, 26 A.D.2d 213, 272 N.Y.S.2d 168 citing Matter of Bond & Mortgage Guarantee Co., 249 App.Div. 25, 290 N.Y.S. 999, affd. 274 N.Y. 598, 10 N.E.2d 569). Therein a county clerk questioned the constitutionality of a state statute that required him to exempt certain corporations from the payment of fees. The court rejected his argument holding that compliance with the statute did not affect his rights as a county clerk. "The constitutional guaranty does not extend to the mere interest of an official, as such, Who has not been deprived of his property without due process of law or denied the equal protection of the laws.' Columbus & Greenville Ry. Co. v. Miller, 283 U.S. 96, 100, 51 S.Ct. 392, 394, 75 L.Ed. 861.' (249 App.Div. 25, 27, 290 N.Y.S. 999, 1002, emphasis supplied). This rule would also apply to plaintiffs, since a denial of access to the courts may well contravene their constitutional rights. Furthermore, under such circumstances consideration should be given to the position of the resident district taxpayer, not a party to this proceeding, if his constitutional rights may be impaired. (United States v. Raines, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524.)

As a result, the court, for the reasons stated, finds that these plaintiffs do possess the necessary standing to maintain the within action. The third and fourth affirmative defenses set forth by defendant cannot be sustained, the first affirmative defense has been rendered moot by an amendment to the complaint, the second and fifth affirmative defenses are without foundation.

Thus the court reaches the merits of the controversy upon these motions. The Constitution of the State of New York, Article 11, Section 4, provides as follows:

'Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of...