Judd v. Bd. of Educ. of Union Free Sch. Dist. No. 2

• Decision Date: 24 May 1938
• Citation: 278 N.Y. 200,15 N.E.2d 576
• Parties: JUDD et al. v. BOARD OF EDUCATION OF UNION FREE SCHOOL DIST. NO. 2, TOWN OF HEMPSTEAD, NASSAU COUNTY, et al. (BENNETT, Atty. Gen. et al., Interveners).
• Court: New York Court of Appeals Court of Appeals

278 N.Y. 200

15 N.E.2d 576

JUDD et al.

v.BOARD OF EDUCATION OF UNION FREE SCHOOL DIST. NO. 2, TOWN OF HEMPSTEAD, NASSAU COUNTY, et al. (BENNETT, Atty. Gen. et al., Interveners).

Court of Appeals of New York.

May 24, 1938.

Action by Glenn L. Judd and another, taxpayers of Union Free School District No. 2, Town of Hempstead, Nassau County, State of New York, against the Board of Education of Union Free School District No. 2 of the Town of Hempstead, Nassau County, N. Y., and others, to restrain the Board of Education and the School District from furnishing transportation with public funds to pupils to and from any private or parochial school located within or without such district, to compel cancellation and removal of assessment, levy, and lien on their property for moneys appropriated for that purpose, and for other relief, wherein John J. Bennett, Jr., Attorney General of the State of New York and Louis Trouve and another intervened. From a judgment, entered upon the order of the Appellate Division, Second Department, 253 App.Div. 907, 3 N.Y.S.2d 394, unanimously affirming the judgment of the Special Term dismissing the complaint, 164 Misc. 889, 300 N.Y.S. 1037, plaintiffs appeal by permission of the Appellate Division.

Reversed, and case remitted to Special Term.

CRANE, C. J., and O'BRIEN and LOUGHRAN, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Second Department.

Joseph Wheless, of New York City, for appellants.

Stephen Crane West, of Hempstead, L. I., for respondents.

John J. Bennett, Jr., Atty. Gen. (Henry Epstein, of Albany, of counsel), for intervener State of New York.

Thomas F. Hyland, of Hempstead, for interveners Bertrand and Trouve.

RIPPEY, Judge.

This action is brought by citizens of the United States and of the State of New York, each a resident and a taxpayer within the geographical limits of Union Free School District No. 2, of the Town of Hempstead, Nassau county, and owning property of the value of an amount in excess of one thousand dollars, to restrain the Board of Education of that school district from furnishing transportation with public funds for pupils to and from any private or parochial school located within or without such district, to compel the cancellation and removal of the assessment, levy and lien on their property for moneys appropriated for that purpose, and for other relief.

The defendant school district is a municipal corporation (General Corporation Law [Cons. Laws, ch. 23], § 3; Laws of 1892, ch. 687) and the defendant Board of Education is a body corporate (Education Law [Cons. Laws, ch. 16], § 300). An action may be brought by a taxpayer to restrain illegal official acts, to prevent waste and compel restoration of the taxpayer's property by illegal action of the board. (General Municipal Law [Cons. Laws, ch. 24], § 51; Lewis v. Board of Education of New York City, 258 N.Y. 117, 179 N.E. 315).

Pursuant to provisions of the Education Law (§§ 134, 206, 310 and 1020), the defendant had for some time prior to the commencement of the action provided free transportation to and from the public schools in the district for physically handicapped pupils of such schools and for those pupils who resided so remote therefrom that they were practically deprived of school advantages without such transportation. No such transportation was provided by the defendant for pupils resident therein who attended private of denominational schools.

In 1936, the Legislature amended section 206 of the Education Law (Laws of 1936, ch. 541, in effect September 1, 1936) so that the material part, with changes and additions in italics, reads as follows:

‘18. Whenever any district shall have contracted with the school authorities of any city, or other school district for the education therein of the pupils residing in such school district, or whenever in any school district children of school age shall reside so remote from the schoolhouse therein or the school they legally attend that they are practically deprived of school advantages during any portion of the school year, the inhabitants thereof entitled to vote are authorized to provide, by tax or otherwise, for the conveyance of any or all pupils residing therein ( a) to the schools of such city, or district with which such contract shall have been made, or ( b) to the school maintained in said district and to schools, other than public, situate within the district or an adjacent district or city. Whenever conveyance of pupils shall be so provided for by vote of the inhabitants, the school district and the school trustees shall provide, if need be, one or more routes so that all children of school age in said district shall equally be afforded transportation facilities.

‘And the trustees [thereof] of the district may contract with any person, corporation or school district for such conveyance when so authorized in accordance with such rules and regulations as they may establish, consistent with rules and regulations of the commissioner of education, and for the purpose of defraying any expense incurred in carrying out the provisions of this subdivision, they may if necessary use any portion of the public money apportioned to such district. * * *’

At a special district meeting of the voters of the public school district held on January 7, 1937, a proposition to appropriate moneys to provide transportation for pupils who attended a certain parochial school was defeated. The school was located outside of School District No. 2, was wholly under the control and direction of a religious denomination, and denominational tenets and doctrines were therein taught. Upon appeal to the Commissioner of Education, it was held that, under the statute as it stood in its amended form, if free transportation should be provided for pupils who attended the free common schools, similar transportation facilities must be provided for all pupils similarly situated who were attending private and parochial schools. The authority of the Commissioner to make such an order is unquestioned. People ex rel. Board of Education of Union Free School Dist. No. 2 of Town of Brookhaven, Suffolk County, v. Graves, 243 N.Y. 204, 153 N.E. 49. As a consequence, a second meeting of the voters was held, an appropriation was made and a tax levied to meet the appropriation. The right to have parochial school pupils transported at public expense is asserted solely by virtue of the amendment of 1936 to section 206 of the Education Law. It is the claim of the plaintiffs that the section, in so far as it purports to or does authorize the use of public funds for the transportation of pupils to and from private schools or schools wholly or in part under the control or direction of any religious denomination or in which denominational tenets or doctrines are taught is in violation of article 9 of the State Constitution and that the action taken thereunder by defendant is void. The case reaches us, after affirmance of a judgment on the pleadings dismissing the complaint, upon a certificate of the Appellate Division that a question of law is involved which should be here reviewed.

The provisions of article 9 of our Constitution (adopted in 1894) are the ones under consideration here.

Section 1 makes it mandatory for the Legislature to ‘provide for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated.’ Under this provision, the schools provided must be sufficiently numerous so that all the children of the State may receive their education, whatever may be their race, creed, color, or condition. Private, denominational and sectarian schools, and schools or institutions of learning in which denominational tenets or doctrines are taught or those wholly or in part under the control or direction of any religious denomination are no part of and are not within that system. Amendments designed to bring such schools into the system of common schools were discarded by the convention which framed the Constitution. The common school system of the State was established by chapter 242 of the Laws of 1812. By that act, creation of school districts was authorized, the control of education in all the separate districts was vested in district trustees, inspectors, or town school commissioners to be elected by the people, and continued under the supervision of the State Superintendent of Instruction. Some additions were made by chapter 52 of the Laws of 1813. These acts were repealed and re-enacted by chapter 192 of the Laws of 1814 entitled ‘An act for the better establishment of common schools.’ The idea that the people must provide for the expense of education first finds expression in chapter 75 of the Laws of 1795, where the Legislature appropriated twenty thousand pounds per year for five years out of the annual revenue of the State ‘for the purpose of encouraging and maintaining schools in the several cities and towns of the State’ other than colleges and academies. This constituted the origin of the common school fund of the State. (See, also, Laws of 1796, ch. 49; Laws of 1797, ch 34; Laws of 1801, ch. 189; Laws of 1805, ch. 108; Laws of 1807, chs. 20 and 32.) Under the act of 1812, revised in 1814 as above indicated, the moneys in the common school fund theretofore created and enlarged from year to year were required to be apportioned by the State Superintendent of Instruction among the various counties which in turn were required to spend such moneys together with such other moneys as they might themselves collect for education under the provisions of that act to the use of the common schools exclusively. The Legislature by chapters 161 and 212 of the Laws of 1819 continued the apportionment and use of the common school fund. Thereupon the people in article 7, section 10, of the Constitution of 1821 definitely established the common school fund as a perpetual fund to be used exclusively for the support of...