[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 187 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 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." *Page 189
The quoted statute, pursuant to a 1947 revision of the Education Law (L. 1947, ch. 820), has now become paragraph e of subdivision 2 of section 3210 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).
It is stipulated herein that plaintiff, by reason of its character and standing, would be entitled to a license if it should 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 III of the New York State Constitution, which reads: "The legislative power of this State shall 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 schools were to be governed by the regulations, much less what 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. 288, 299): "The Legislature must set bounds to the field, 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 *Page 190 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 statute'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. FromField 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 Schechter 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 statutes 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, they all relate to matters clearly indicated and authorized by Congress. 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 character and amount of compulsory attendance in both private and public schools was already minutely regulated in *Page 191 other parts of section 625 (now § 3210) and elsewhere in article 23 (now art. 65). 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 provide that each such school shall apply for registration 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 puts out misleading advertising. A comparison of those regulations with 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 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 *Page 192 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 Sisters, 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.