Packer Collegiate Institute v. University of the State of New York et al.
298 N.Y. 184 (1948)
81 N.E. 2d 80
Court of Appeals of the State of New York
Plaintiff has for many years conducted at Brooklyn, N.Y., a
private nonsectarian school for girls, consisting of these
departments: nursery or preschool, kindergarten, elementary or
primary, high school or secondary, and two-year junior college.
It sues herein for a declaration of unconstitutionality of a
statute, which when this suit was brought, and as last amended by
chapter 214 of the Laws of 1945, appeared in the State Education
Law as paragraph 5 of subdivision B of section 625 Educ. of the
Education Law, section 625 being headed "Amount and character of
required attendance", and subdivision B of section 625, in which
paragraph 5 is found, carrying the subheading "Attendance
elsewhere than at a public school", the whole article 23 being
entitled "COMPULSORY EDUCATION". Paragraph 5 read, when this
litigation began, as follows: "5. No person or persons, firm or
corporation, other than the public school authorities or an
established religious group, shall establish or maintain a
nursery school and/or kindergarten and/or elementary school
giving instruction in the subjects included in section six
hundred and twenty, subdivision c, paragraph one-a, of this
article, unless the school is registered under regulations
prescribed by the board of regents. Upon complying with the said
regulations and after payment of a fee of twenty-five dollars a
certificate of registration shall be issued by the department
which shall be valid for a period of two years from the date of
issuance unless suspended or revoked within said period pursuant
to said regulations. Such registration may be renewed biennially
thereafter upon the payment of a renewal registration fee of
twenty-five dollars."
The quoted statute, pursuant to a 1947 revision of the
Education Law (L. 1947, Ch. 920), has now become paragraph e of
subdivision 2 of section 3210 Educ. of the Education Law, but it is
identical with the above except for immaterial changes of
wording. A violation thereof is punishable criminally, by fine or
imprisonment (former $ 641, now Education Law $ 3228 Educ.).
It is stipulated herein that plaintiff, by reason of its
character and standing, would be entitled to a license if it
would apply therefor. However, it says the statute is invalid
and chooses to stand on that position and refuses to make
application.
The quoted statute is, we think, patently unconstitutional as
being an attempted delegation of legislative power, in violation
of section 1 of article II of the New York State Constitution,
which reads: "The legislative power of this State shall be
be vested in the Senate and Assembly." The statute before us
is nothing less than an attempt to empower an administrative
officer, the State Commissioner of Education, to register and
license, or refuse to register and license, private schools,
under regulations to be adopted by him, with no standards or
limitations of any sort. The Legislature has not only failed
to set out standards or tests by which the qualifications
of the schools might be measured, but has not specified,
even in most general terms, what the subject matter of
the regulations is to be. It is impossible, from any
examination of this subdivision or of the section or the
article in which it appears, or of the whole Education
Law, to know what aspects or activities of the regulations
were to accomplish, or what were to be their limits. Only
the wildest guessing could give us any idea of what the
Legislature had in mind. Surely this does not meet the test
of Matter of Small v. Moss (279 N.Y. 228, 299): "The Legislature
must set bounds to the fields, and must formulate the standards
which shall govern the exercise of discretion within the field.
Without the second rule as a corollary to the first rule there
would be no effective restraint upon unfair discrimination or
other arbitrary action by the administrative officer." Thus
there must be a clearly delimited field of action and, also,
standards for action therein. Here we have neither. This
is not really a question of what powers of control over private
schools may validly be delegated by the Legislature. It is here
impossible to discover what authority was intended to be turned
over. The commissioner is left "without check or guidance" to
do what he will with these schools; and the state's validity
must be judged not by what has been done under it but "by what
is possible under it" (see People v. Klinck Packing Co., 214
N.Y. 121, 138, 139 ). The legislature may, of course, leave
"execution and details" to the administrators, but the
Legislature must at least furnish those administrators with
"rules and principles" for guidance (see Darweger v. Staats,
267 N.Y. 290, 306). The Federal rule is the same. From
Field v. Clark (143 U.S. 649) and United States v. Grimaud
(220 U.S. 506) down to Panama Refining Co. V. Ryan (293 U.S.
388) and Schecter Corp. v. United States (295 U.S. 495) the
Supreme Court has repeatedly denied the power of
Congress to delegate its lawmaking function, while permitting it
to delegate the power to determine the existence of the facts
which make the law applicable or inapplicable, and to fill in the
details of regulation. The application of that principle to
licensing statues is plainly shown by the Grimaud case (supra),
where the Supreme Court found a licensing statute not
unconstitutional for excessive delegation, but only because
Congress had marked out a field for the Secretary of Agriculture.
The statute was so drawn, said the court, that the Secretary of
Agriculture "could not make rules and regulations for any and
every purpose. ... As to those here involved, theory all relate
to matters clearly indicated and authorized by Contress. The
subjects as to which the Secretary can regulate are defined."
(P. 522.)
Nor is this a case where the field and limits of action, while
not immediately expressed, can be found elsewhere in the law.
Article 23 of the Education Law (now art. 65) in which this law
is found, deals from first to last, as its title shows, with
"COMPULSORY EDUCATION". Section 625 (now $ 3210), of which this
particular subdivision is in part, has to do, as its heading
shows, with "Amount and character of required attendance." But it
cannot be that the Legislature was instructing the commissioner
to make regulations concerning attendance only, since the
public schools was already minutely regulated in
other parts of section 625 (now $ 3210) and elsewhere in article
23 (now art. 651). Try as we will to avoid invalidating this
enactment, we cannot find in it, or around it, express or
implied, any standards at all. To be frank, we cannot understand
what it means or what it was intended to accomplish.
Holding as we do that the statute is unconstitutional, it is
unnecessary to deal with the regulations actually promulgated by
the commissioner thereunder. However, an examination of those
regulations is illuminating since they show, we think, that the
commissioner, left without legislative guidance, proceeded to
legislate, broadly and in many different areas. Summarized, those
regulations provided that each such school shall apply for
reistration under forms prescribed by the commissioner, who
shall determine the school's eligibility for registration on the
facts presented; that registration shall be given only for a
number of children to be specified by the commissioner, but not
fewer than six children; that the program, curriculum and
financial resources of the school must meet standards to be
approved by the commissioner; that the qualifications of the
teachers shall be up to those of the public school; that the
number of children per teacher shall not be too large for proper
education; that there shall be adequate equipment and space,
adequate provisions for health and sanitation and fire escapes,
adequate opportunities for "parent education" and adequate
record-keeping; that the schools shall be in session
approximately the same number of days as the public schools, and
that no school shall be registered if it pus out misleading
advertising. A comparison of those regulations wit the bare and
meager language of the statute forces the conclusion that,
however good or bad the commissioner's rules may be, they were
not controlled, suggested or guided by anything in the statute.
It is to be doubted that the Legislature had in mind the
requiring of financial statements from nursery schools, or that
it is expected that the rules would mandate "parent education" in
kindergartens. At any rate, the statute contains no declaration
of purpose or policy, general or particular, and the commissioner
was left to make such laws as he thought wise - which he
proceeded to do.
This is no small or technical matter we deal with here. Private
schools have a constitutional right to exist, and parents
have a constitutional right to send their children to such
schools (Pierce v. Society of Sisters, 268 U.S. 510). The
Legislature, under the police power, has a limited right to
regulate such schools in the public interest (Pierce v.
Society of Sinters, supra; Meyer v. Nebraska, 262 U.S. 390).
Such being the fundamental law of the subject, it would be
intolerable for the Legislature to hand over to any official or
group of officials, an unlimited, unrestrained, undefined power
to make such regulations as he or they should desire, and to
grant or refuse licenses to such schools, depending on their
compliance with such regulations.
It is unnecessary to discuss other specifications of alleged
unconstitutionality urged by plaintiff-appellant.
The judgment should be reversed, without costs, and the case
remitted to the Appellate Division with instructions to enter a
judgment declaring the statute void as contravening section 1 of
article III of the New York State Constitution.
[Editor's note: NY Const. Art. III, Sec. 1.
"The legislative power of this state shall be vested
in the senate and assembly."]
[end of decision; concurring and dissenting opinions omitted]