Lewis v. Bd. of Educ. of New York City

• Decision Date: 05 January 1932
• Citation: 258 N.Y. 117,179 N.E. 315
• Parties: LEWIS v. BOARD OF EDUCATION OF NEW YORK CITY.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 117

179 N.E. 315

LEWIS

v.BOARD OF EDUCATION OF NEW YORK CITY.

Court of Appeals of New York.

Jan. 5, 1932.

Action by Joseph Lewis, a taxpayer of New York City, against the Board of Education of New York City. From the judgment of the Appellate Division, First Department (233 App. Div. 826, 250 N. Y. S. 970), affirming a judgment of the Special Term dismissing the complaint, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Arthur Garfield Hays, Joseph Wheless, and Stephen B. Vreeland, all of New York City, for appellant.

Arthur J. W. Hilly, Corp. Counsel, of New York City (William E. C. Mayer and Thomas W. A. Crowe, both of New York City, of counsel), for respondent.

CRANE, J.

The General Municipal Law (Consol. Laws, c. 24), § 51, reads: ‘All officers, agents, commissioners and other persons acting, * * * for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation by any person or corporation whose assessment, * * * shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessment in the county, town, village or municipal corporation to prevent the waste or injury of whose property the action is brought.’

Although the board of education of the city of New York is a separate and distinct corporation from the municipality itself, and is in effect a state agency for carrying out and enforcing our educational system (People ex rel. Wells & Newton Co. of New York v. Craig, 232 N. Y. 125, 133 N. E. 419), and in this respect its officers and agents are performing state, as distinguished from city, functions (Schieffelin v. Komfort, 212 N. Y. 520, 106 N. E. 675, L. R. A. 1915D, 485), yet the board expends the city's money raised by taxation, and within certain limitations its expenditures may be limited, investigated, and controlled by the city authorities. (Matter of Hirshfield v. Cook, 227 N. Y. 297, 125 N. E. 504). The administration of public education in the city is somewhat of a dual character. Appointments to the board are made by the city officials; its funds are held in custody by the city comptroller, who, under section 880 of the Education Law (Consol. Laws, c. 16), is prohibited from permitting the use of such funds for any purpose other than that for which they are lawfully authorized. Matter of McNutt Co. v. Eckert, 257 N. Y. 100, 177 N. E. 386. The city authorities also have some supervision over the amount of the yearly appropriations. Matter of Hirshfield v. Cook, supra; Matter of Fleischmann v. Graves, 235 N. Y. 84, 138 N. E. 745. We think, therefore, that section 51 of the General Municipal Law applies to the board of education of the city of New York in so far at least as to authorize an action by a taxpayer to prevent waste of the city's money. In effect we have so held in affirming Rees v. Teachers' Retirement Board of City of New York, 130 Misc. Rep. 442, 223 N. Y. S. 716;Id., 247 N. Y. 372, 160 N. E. 644.

This action has been commenced under this section 51 of the General Municipal Law to prevent waste of the city's money in the purchase of books entitled, ‘Bible Readings,’ and certain hymn books alleged to be used at the opening exercises in some of the public schools in New York city.

By the Laws of 1851, c. 386, now section 1151 of the Greater New York Charter (Laws of 1901, c. 466), all denominational teaching and dogmatic books are excluded from the public schools of the city of New York, with this proviso: ‘But nothing herein contained shall authorize the board of education or the school board of any borough to exclude the Holy Scriptures, without note or comment, or any selections therefrom, from any of the schools provided for by this chapter; but it shall not be competent for the said board of education to decide what version, if any, of the Holy Scriptures, without note or comment, shall be used in any of the schools; provided that nothing herein contained shall be so construed as to violate the rights of conscience, as secured by the constitution of this state and of the United States.’ The taxpayer claims that this provision is unconstitutional, as in violation of section 3 of article 1 and section 4 of article 9 of the state Constitution. The former reads as follows:

‘§ 3. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.’

And the latter: ‘§ 4. 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 any religious denomination, or in which any denominational tenet or doctrine is taught.’

The complaint which states the grievance is based upon the waste of the city's money in purchasing the books above referred to. It alleges that the plaintiff is a taxpayer, and that the board of education has purchased these books out of the public moneys raised for educational purposes in the city of New York by taxation, and that in doing so the board committed an unlawful waste of the public moneys devoted to purposes of secular education. The relief asked for is a judgment restraining the board of education from making these purchases. The taxpayer's action permitted by section 51 of the...