People ex rel. Lewis v. Graves

• Decision Date: 10 May 1927
• Citation: 156 N.E. 663,245 N.Y. 195
• Parties: PEOPLE ex rel. LEWIS v. GRAVES, State Commissioner of Education.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 195

156 N.E. 663

PEOPLE ex rel. LEWIS

v.GRAVES, State Commissioner of Education. ^*

Court of Appeals of New York.

May 10, 1927.

Mandamus by the People of the State of New York, on the relation of Joseph Lewis, against Frank Pierrepont Graves, Commissioner of Education of the State of New York. From an order of the Appellate Division (219 App. Div. 233, 219 N. Y. S. 189) affirming an order of the Special Term (127 Misc. Rep. 135, 215 N. Y. S. 632) denying an application for an order of peremptory mandamus directing the Commissioner of Education to order the school authorities of the city of White Plains to discontinue the school regulation whereby public school children, at the request of their parents, are excused one-half hour in each week before the termination of the regular school period to enable them to receive religious instruction in church schools, petitioner appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Third department.

John C. Mahon, of New York City, for appellant.

Ernest E. Cole, of Albany, for respondent.

Charles H. Tuttle, Pliny W. Williamson, George J. Gillespie, and George W. Schurman, all of New York City, for Greater New York Federation of Churches and New York State Sunday School Ass'n.

Charles D. Lewis, of White Plains, for General Committee on Week Day Religious Instruction in City of White Plains.

POUND, J.

Persons interested in religious instruction of the children in the public schools of the state have recently inaugurated a plan which has been put in operation in the city of White Plains and, with varying details, elsewhere. As it operates in White Plains, the plan is to excuse from school attendance children between the ages of 7 and 14 years, on the written request of parents, one day in each week, for the last half-hour of the school session, which is a study period, so that they may attend one of the several denominational church schools which give religious instruction during such period. The child so excused loses no school recitations and receives no credit for the work taken in the church school. The city of White Plains does not use public money to aid the church schools, although the co-operation between the public schools and the church schools requires a slight use of the time of the school-teachers in registering and checking up excuses. The plan is governed by suitable regulations of the school authorities but does not rest on any legislative enactment. It must therefore be in harmony with the Constitution and laws of the state. If it is, the courts have no further concern with it.

[1] The petitioner herein, although not appearing to be a resident of the city of White Plains or a taxpayer therein, or the parent or guardian of a child affected by its school regulations, made a demand as a citizen of the state upon the commissioner of education to put a stop to this practice, not only in the city of White Plains but throughout the state and, on refusal of the commissioner to comply therewith, applied to the courts for an order of peremptory mandamus to compel him so to act. The Special Term denied his application, and the Appellate Division unanimously affirmed the order on the law and, as we shall assume, not in the exercise of discretion. He now appeals to this court without leave of the Appellate Division or of this court, claiming that under Civil Practice Act, § 588, subdivision 1, a constitutional question is involved and that his appeal is taken as a matter of right. The appeal directly involves the construction of article 9, § 4, of the Constitution of the State, quoted below within our decisions. The court below in order to make its...