Although counsel for the appellant has argued before us that paragraph 5 of subdivision B of section 625 of the Education Law, violates in several respects both the Federal and the State Constitutions, the decision by a majority of the court rests upon a single assignment of invalidity — that the challenged statute is "an attempted delegation of legislative power, in violation of section 1 of article III of the New York State Constitution". I cannot assent to that conclusion.
It is my view that this is one of those instances — of which the Education Law furnishes many examples — when legislation must be adapted to complex conditions prevailing in a technical field and involving details with which the Legislature *Page 193 has found it difficult to deal directly. (See Education Law, § 132, 207, 210, 211,215, 216, 218, 219,254, 301, 305, 3004, 5001,5002, 6608-6609, 6705, 6803,6805, 7005, 7205,7303, 7404, 7503.) On that subject I may well cite the comment by Mr. Justice FOSTER writing for the Appellate Division in this case — "If plaintiff's argument is sound [on the asserted unconstitutional delegation of legislative power] the whole educational system of the State is subject to attack, for inherent in the system are innumerable instances of delegated power to make rules and regulations." (273 App. Div. 203, 209.)
Of the many rulings by this court which give direction to our inquiry, I choose two: In People v. Charles Schweinler Press (214 N.Y. 395) the court (per HISCOCK, J.) stated (p. 406): "In considering legislation adopted for such a purpose we must start out with the presumption that it is constitutional and valid. (People ex rel. Kemmler v. Durston, 119 N.Y. 569, 577.) If the statute upon its face appears to be reasonable and just and appropriate, and we can fairly believe that its natural consequences will be in the direction of betterment of public health and welfare, and, therefore, that it is one which the state for its protection and advantage may enact and enforce, it will be the duty of the courts to pronounce it constitutional even though they should doubt its wisdom. (People v. KlinckPacking Co., 214 N.Y. 121; Holden v. Hardy, 169 U.S. 366,395.) Or, to state the rule in converse form, before we can pronounce such a statute as that now before us unconstitutional we must be able to see either that there is no real, substantial evil of public interest to be guarded against or that there is no reasonable relation between the evil and the purported cure or prevention offered by the statute."
On an occasion twenty-five years later, when the question of statutory standards engaged the attention of the court, it was said (per FINCH, J.) writing in Matter of Marburg v. Cole (286 N.Y. 202, 211-212): "The law is well settled that it is not always necessary that license legislation prescribe a specific rule of action. Where it is difficult or impractical for the Legislature to lay down a definite, comprehensive rule, a reasonable amount of discretion may be delegated to the administrative officials. (People ex rel. Lieberman v. Van DeCarr, *Page 194 199 U.S. 552, affg. 175 N.Y. 440.) Where the administrative agency has adopted a standard as an interpretation of the broad powers granted to it by the statute, we may declare such a standard invalid only in the event that it is so lacking in reason for its promulgation that it is essentially arbitrary."
In the case at hand the prevailing opinion by Judge DESMOND criticises the challenged statute because it "contains no declaration of purpose or policy, general or particular, and the commissioner was left to make such laws as he thought wise". Although there are instances where the Legislature has chosen to preface statutes with a formal declaration of policy I know of no legal requirement for such a formal declaration. Indeed there is distinguished authority for the statement recently made* that "Often the purpose or policy that controls is not directly displayed in the particular enactment. Statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes, or in the known temper of legislative opinion."
Nor do I think there is a valid basis for the condemnation, chiefly stressed in the prevailing opinion, that — "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."
I am not unmindful of the rule of Matter of Small v. Moss (279 N.Y. 288, 299) cited in the prevailing opinion, — which rule requires that there be standards which govern the discretion to be exercised by the Legislature's delegate. We have seen, however, that such a rule is not rigid. (Matter of Marburg v.Cole, supra, pp. 211-212.) Upon that subject this court has aptly commented:
"Authority to make administrative rules is not a delegation of legislative power, and such rules do not become legislation because violations thereof are punished as public offenses.
"In this day when the demands upon the State Legislatures for necessary and important laws are increasing every year we *Page 195 must not be rigid in our construction of legislative power. More and more must the laws become general in form, leaving to commissions, boards or other administrative bodies the establishment of rules and regulations and the determination of the facts to which the general law will apply." (Darweger v.Staats, 267 N.Y. 290, 306.)
The delegation by the Legislature to an administrative agency of broad constitutional powers involving the exercise of reasonable discretion may be declared invalid only in the event it is so lacking in reason for its promulgation that it is essentially arbitrary. (Matter of Marburg v. Cole, supra, p. 212.) Accordingly, I believe the rule of Matter of Small v.Moss (supra) is satisfied if the statute involved — considered in its setting and with all reasonable implications therefrom — gives evidence that the Legislature was aware of the type of problem with which it had to deal. Where, as in this instance, problems peculiar to the conduct of schools of a certain type were to be met, it was obviously both difficult and impractical for the Legislature to formulate definite, comprehensive regulations to govern the registration and licensing of nursery schools, kindergartens and elementary schools. It thus became appropriate to delegate a reasonable amount of discretion to the Commissioner of Education to formulate such regulations.
When searching for standards in statutes delegating legislative power we may adopt a liberal view. (Matter of Marburg v. Cole,supra; Darweger v. Staats, supra.) In doing so in this case we are certainly permitted to assume awareness by the Legislature that the statute in question is a part of the Education Law. By the terms of the act the Commissioner of Education is chosen to administer the statute. It follows that the regulations to be promulgated by the commissioner, by necessary inference, bear some reasonable relation to education. The schools to be "registered" and regulated under the statute are expressly designated as private nursery, kindergarten and elementary schools, from which it follows that the regulations authorized must bear some reasonable relation to education furnished at schools of that character. As the statute is placed in article 65 of the Education Law — which article bears the caption "COMPULSORY EDUCATION AND SCHOOL CENSUS" — and is a subdivision of section 3210 of the same article, which section *Page 196 is captioned "Amount and character of required attendance" — the regulations should bear some reasonable relation to the subjects dealt with under those sections. It is also to be noted, as to elementary schools at least, that section 3204 of article 65 provides — "A minor required to attend upon instruction by the provisions of part one of this article [relating to compulsory education] may attend at a public school or elsewhere" (subd. 1) and that "instruction given to a minor elsewhere than at apublic school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides." (Subd. 2.) (Emphasis supplied.) The regulations to be promulgated by the commissioner should bear a reasonable relation to that statutory mandate.
The standards, in my opinion, are adequate. They are as adequate as those found sufficient by the United States Supreme Court in Douglas v. Noble (261 U.S. 165). The statute there under attack provided that only licensed persons should practice dentistry. Authority to license was vested in a board of examiners consisting of five practicing dentists. Every person of good moral character, with a degree from a recognized dental school, was declared eligible and — if he or she passed the examination — was entitled to a license. It is significant for our present inquiry that the statute there involved did not set out — except as already noted — standards or guides as to the character and scope of the examination required to be passed before the license could be issued. Nevertheless, the Supreme Court held (p. 169): "The statute provides that the examination shall be before a board of practicing dentists; that the applicant must be a graduate of a reputable dental school; and that he must be of good moral character. Thus, the general standard of fitness and the character and scope of the examination are clearly indicated." And at pages 169-170, the court held further: "To determine the subjects of which one must have knowledge in order to be fit to practice dentistry; the extent of knowledge in each subject; the degree of skill requisite; and the procedure to be followed in conducting the examination; these are matters appropriately committed to anadministrative board." (Emphasis supplied.)
In the present case, as in many other instances found in the *Page 197 Education Law (cited supra) the Legislature, by its enactment, legislated as far as was reasonably practical upon a subject with which it was called upon to deal in the troublesome field of education. From the necessities of the case there was left with the Commissioner of Education — the chief administrative officer of the Board of Regents (N.Y. Const. art. V, § 4) — the duty of formulating the "regulations" prescribed by the statute as means to bring about the result which the Legislature intended to accomplish. We may assume, until the contrary is proven, that the Commissioner of Education — a constitutional officer — has acted in obedience to the statutory duty thus imposed. As I view the record no rule of constitutional law was thereby violated.
Accordingly, I dissent and vote to affirm the judgment entered upon the order of the Appellate Division.
LOUGHRAN, Ch. J., and DYE, J., concur with DESMOND, J.; FULD, J., concurs in separate opinion; LEWIS, J., dissents in opinion in which THACHER, J., concurs; CONWAY, J., taking no part.
Judgment reversed, etc.
* "Some Reflections on the Reading of Statutes" (Sixth Annual Cardozo Lecture) by Mr. Justice FELIX FRANKFURTER.