Board of Education of Central School District No. 1 v. Allen

Herlihy, J.

This is an appeal from an order and judgment which declared chapter 320 of the Laws of 1965 in violation of the Constitutions of the State of New York and of the United States.

Section 701 of the Education Law provides for the purchase of textbooks with public moneys for loan to students enrolled in grades 7 through 12 in public or private schools. The constitutional question involves the issue of using such funds for the purchase of books to be loaned to students in schools under the control or direction of a religious denomination.

The plaintiffs seek a declaratory judgment that the said law is unconstitutional insofar as providing for the purchase of textbooks with public funds for free loan to pupils attending religious schools and to restrain the Commissioner of Education from removing or attempting to remove any member of the plaintiff Board of Education for failure to comply with the said law and restraining the said Commissioner from apportioning to any school district any public moneys for the purpose of carrying out the law insofar as it may apply to pupils attending religious schools.

The Commissioner in his answer denies the various allegations and in addition raises the defense of lack of standing by the plaintiffs to bring the action and that there is no justiciable controversy.

We are satisfied that the statute does not contravene the Constitution of the United States or that of the State of New York but since we determine, as set forth hereinafter, that the plaintiffs have no standing or status to bring the present action, we do not base our decision upon the merits.

The defense of the lack of standing to raise the constitutional iásue, set forth in the answer of the Commissioner, concerns the identical issue recently considered by this court in City of Buffalo v. State Bd. of Equalization & Assessment (26 A D 2d 213, 215) and we find no compelling argument on the present record to distinguish a school board from a municipality. There is a consistent line of appellate court decisions to the effect that a public body—in the present instance the Board of Education — has no standing to challenge a State statute restricting its governmental powers (County of Albany v. Hooker, 204 N. Y. 1, 9-10; Black Riv. Regulating Dist. v. Adirondack League Club, 307 N. Y. 475, 487, app. dsmd. 351 U. S. 922).

The basic principle involved is that the municipality or other agency is the creation of the State, subject to its direction and control. The extent, nature and purpose of such governmental powers are within the absolute discretion of the State and any alteration, impairment and destruction of these powers, by the Legislature present no question of constitutionality.- School boards, such as the plaintiffs herein, are the creation of the State, dependent upon the State for existence and performing their function subject to the control and direction of the State under the aegis of the Education Department through its Coinmissioner.

/As we stated in City of Buffalo (supra, p. 215): “ If considera ■ tion should be given to relaxing the rule * * * it is not a decision to be made by an intermediate appellate court. ”

As the concurring opinion notes, there are decisions where a Board of Education sues the Commissioner, but not under the present circumstances, and the citations are not controlling. We would also note that an examination of the complaint does not substantiate the statement that the action can be interpreted to have been brought by the individual members of the respective boards. (See St. Clair v. Yonkers Raceway, 13 N Y 2d 72, 76.) As to procedural restrictions in reaching legal issues, see Matter of Board of Educ. v. Nyquist (23 A D 2d 592).

The judgment and order should be reversed, on the law, and the complaint dismissed.