Board of Education v. Graves

Van Kirk, J.: On August 14, 1923, fifteen residents of union free school district No. 2 of the town of Brookhaven, Suffolk county, presented a petition to the board of education of the district, which is a consolidated district. The petition stated that the petitioners “ do hereby respectfully petition the Board of Education of the said school district to provide transportation for the children of the residents of said school district, living in the district, including the residence of Bernard Selleck and that part of the district lying south of his said residence.” The board of education took no action in reference to furnishing the transportation prayed for. On the 28th day of September, 1923, Sadie D. Hawkins,- one of the petitioners to the board of education, presented a petition to the Commissioner of Education: The petition set up the presentation to the board of education of the petition signed by the fifteen residents and stated that the board had refused to take any action thereupon. It contained the following: “ That deponent acting for those signing the petition appeals to the Commissioner of Education — 42 — for relief and for an order requiring the Board of Education of Union Free School at Setauket, New York, being district #2 town of Brookhaven to furnish a conveyance for the children residing in South Setauket in said District at a distance of more than two and one-half miles from the school house.” The petition also contained the following: “ That on several occasions deponent has brought the question of transportation before the Board of Education, and they have always turned the application down. Once the question came up before a district meeting and was turned down.” The board of education, on the 15th day of November, 1923, filed an answer to the petition. On the 21st day of March, 1924, the Commissioner of Education made an order reading as follows: “ The appeal is sustained. It is ordered that the Board of Education of Union Free School District No. 2 of the Town of Brookhaven, Suffolk County, be and it is hereby directed to provide conveyance immediately for the appellant’s child and other children residing in the neighborhood referred to in this appeal who are required to travel an unreasonable distance in order to attend the district school, and to pay the cost of such conveyance from any moneys that are on hand belonging to the district that are available for such purpose. In the event there are no moneys available the Board of Education is hereby authorized and directed to raise by tax upon the taxable property of the district a sum sufficient to pay such cost of conveyance.” (See Matter of [Hawkins] Appeal Relative to Transportation of Children [Town of Brookhaven], 31 State Dept. Rep. 85, 88.) A meeting of the voters of the school district was subsequently called by the board of education. There was submitted to the meeting a resolution to provide for the transportation of pupils in accordance with the order of the Commissioner. Eighty-three votes were cast at said meeting, all of which were against the resolution except the votes of the fifteen petitioners. Thereafter, on May 26, 1924, the Commissioner of Education made an order withholding from the district the State moneys apportioned to it on the ground that the board of education had failed to comply with his order previously made. Thereafter the board of education obtained an order of certiorari to review the action of the Commissioner in respect to the two orders made. The order was subsequently vacated and from the vacating order so made this appeal was taken. We do not in this opinion consider the question whether or not the Legislature can delegate to the Commissioner of Education the power to tax a school district. If all the provisions of the Education Law are valid we think the Commissioner has in this case exceeded his power. — 43 — The Commissioner of Education is by statute made the executive director of the Education Department of the State and is charged with the general duty of overseeing its administration. He is given quasi judicial power to determine, among others, such controversies as may arise from acts or failures to act of a board of education or a school district meeting. But the power given to him is not an unlimited power. (People ex rel. Hylan v. Finegan, 227 N. Y. 219, 224 and cases cited at p. 225.) Boards of education and school district meetings have such powers only as are delegated, and such duties only as are imposed, by statute. We find nothing in the statute giving the Commissioner of Education power to add to or take from those powers delegated and those duties imposed. He may require the law to be obeyed; he may not make law; his is an executive, not a legislative power. The general powers and duties of boards of education are fixed by section 310 of the Education Law, as amended. These powers and duties do not include the furnishing of transportation to scholars. There are some additional powers and duties specially given. In article 6-B “ Central Rural Schools ” are provided for. (§§ 180-186, added by Laws of 1914, chap. 55, as since amd.) By the last section power is in form given to the Commissioner of Education, without any previous vote of the district, to require the district to pay for transportation of scholars within a central school district. From this it may be inferred that he may order the board of education to raise the necessary funds by taxes. Article 6-C provides for “ Central High School Districts.”' (§§ 187-189-1, added by Laws of 1917, chap. 137, as since amd.) In these districts the board of education is given power, without vote of the district, to provide transportation for scholars and, if the board fails to so provide, the Commissioner of Education may require the board to provide such transportation. So far as we have been able to find, in these two articles is the only direct authority given to the Commissioner of Education to require transportation to be furnished to the scholars in a district and to tax or cause to be taxed a district therefor; they do not apply to consolidated districts. Article 5 (§§ 120-154, as amd.) provides in section 130 et seq. (added by Laws of 1913, chap. 129, as amd.) for the consolidation of school districts. With reference to these there is no special provision authorizing the Commissioner of Education to require transportation to be furnished or to tax a district therefor. Nor is there any mention of transportation of scholars except in section 134 (added by Laws of 1913, chap. 129, as amd. by Laws of 1923, chap. 716; since amd. by Laws of 1924, chap. 192, and Laws of 1925, chap. 674), which permits the use of State moneys for that purpose. — 44 — If then such power exists in the Commissioner of Education it must be found in the general provisions of the Education Law. Among the general powers and duties of boards of education, fixed by section 310, as amended, some involve the expenditure of money and the raising of taxes therefor by vote of the inhabitants of the district. Then section 325 provides: “ Levy of tax for certain purposes without vote. If the inhabitants shall neglect or refuse, to vote the sum estimated necessary for teachers’ wages, after applying thereto the public school moneys, and other moneys received or to be received for that purpose, or if they shall neglect or refuse to vote the sum estimated necessary for ordinary contingent expenses, the board of education may levy a tax for the same, in like manner as if the same had been voted by the inhabitants.” Here is a plain distinction between those purposes which are essentials and necessaries and those which are left to the discretion of the inhabitants; and it is a fair inference that the board may not levy taxes, the voters having refused, except in the cases here specified, or where a mandatory statute places the duty upon a school district to provide funds for a necessary school purpose. Among the general provisions of the statute, section 206, subdivision 18, alone authorizes the inhabitants of a district to provide by tax or otherwise for the conveyance of pupils residing therein to the school of the district. This is the section giving powers to the district meeting; it does not purport to impose duties upon the district meetings. We may assume that, if the duty to furnish transportation were imposed upon the board of education or the district meeting, the Commissioner of Education would have the right to require the board of education to furnish transportation, or the school district to act. But, where the matter is left to the discretion of the voters, he could not direct how their votes should be cast. We think his powers are limited to matters of school administration and policy and he is not invested with power to require the board of education or any officer of the school district to levy taxes, except in cases where the duty is imposed upon the board or officer to furnish that thing or service to which the moneys to be raised by tax are to be applied. There seems to be an intimation of this in Bullock v. Cooley (225 N. Y. 566, 578), where the court said: “The determination of the Commissioner of Education upon the appeal involved matters of school administration and policy not without his jurisdiction and his decision is not subject to review by the courts so far as it pertained to such school administration and policy and but incidentally, if at all, affects property rights.” And upon this subject in Gautier v. Ditmar (204 N. Y. 20, 28) the court said: “While it would be — 45 — incompetent for the Legislature to leave to a State officer or department the power to determine whether a tax should be levied, or at what rate, or upon what property, it may lawfully delegate to a ministerial officer or any department, or its appointee or other authority, the power of using the machinery, as and in the method created by it, for the collection of the taxes it has levied.” We think that section 206, subdivision 18, is not mandatory. While it is true that, where a public body or officer is clothed with power and furnished with means to do an act required for the public interests, the execution of such power will often be required as a duty, although the wording of the statute seems to be permissive, in which cases the word “ may ” is interpreted as mandatory. But in our view this is not such a case; a private citizen is not a public officer or body; that rule is not applied to private citizens exercising the right of franchise and thereby of determining whether or not a tax should be levied. The public officer or body represents the public and may be compelled to perform his duty in its interest; the citizen voters act for themselves in a matter resting primarily in their discretion. There is still such a word as “ may.” There is such a thing as authorizing an act to be done, without imposing the duty that it should be done. The wording of this subdivision 18 of section 206 is permissive. Without the permission therein given the district meeting could not vote a tax or appropriate district money for this purpose. If there had been the intent to impose the duty upon the district why was it not so expressed? It was so expressed in the sections as to central schools above cited. If it was meant to give the Commissioner of Education power to overrule the vote of the district, why put the district to the useless expense and trouble of calling a meeting and taking a vote? Is the district meeting authorized to do a vain thing? We may be reminded that the transportation of scholars to school has never been considered a part in the administration of our common school system; and that in sections 620 to 636, as amended, providing for compulsory education, the parents are required to see that the children attend the schools and there is no provision for transportation of children of indigent parents. These provisions in this respect are in harmony with the law and custom prior to the enactment of subdivision 18 of section 206. Section 891 of the Education Law (as renum. from § 881 by Laws of 1918, chap. 252), giving the Commissioner of Education power upon appeal from acts of a board of education or a district meeting “ to make all orders, by directing the levying of taxes or otherwise, which may, in his judgment, be proper or necessary to give effect to his decision,” in our view does not confer upon — 46 — him authority to disregard the vote of a district meeting and require the board of education to furnish transportation to the scholars, thus requiring it to perform a duty the statute does not impose upon it or authorize it to perform. The words and spirit of this statute find sufficient purpose in the fact that the Commissioner is empowered to require a board of education, or a school district meeting, to perform those duties which are imposed upon them respectively by statute, to furnish schools, teachers, equipment and facilities necessary for the “ ordinary contingent expenses ” of the schools. (See Education Law, §§ 324, 325.) We may assume that the Legislature knew that in many school districts the requirement that scholars should be transported to the school building would expose the taxpayers to heavy expenses and liabilities (See Williams v. Board of Trustee, 210 App. Div. 161); that it intended, as its language in this subdivision 18 of section 206 of the Education Law given its ordinary meaning plainly states, to empower the inhabitants at a school district meeting in their discretion to impose this new and additional burden upon themselves and that it did not intend to give the Commissioner of Education power to repudiate the wish of those voters and of his own choice impose the burden. The order withholding from this school district the public money we think was unjustified and beyond the power of the Commissioner to make. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs. All concur, H. T. Kellogg, J., with an opinion, in which McCann, J., concurs, except Hinman, J., dissenting with an opinion.