An order of certiorari was obtained ex parte from a justice of the Supreme Court for the purpose of having this court review a determination of the Commissioner of Education of the State of New York. A motion was made to vacate this order of *48certiorari and the justice holding the Special Term at which this motion to vacate was made returnable has held that the said Commissioner had jurisdiction to make the determination in question and that his decision was final and conclusive and not subject to review in the courts. The order of certiorari was accordingly vacated, giving rise to this appeal. We are not left in doubt as to what the record before us would have been if the order of certiorari had not been vacated and if the Commissioner had made a return to this court of all of the proceedings and papers before him concerning the matter of his determination. No hearing was conducted or sought and no oral testimony was taken. The evidence before him was entirely documentary and is contained in the record upon this appeal. From the evidence before him the following appeared: District No. 2 of the town of Brookhaven, Suffolk county, is one of the many school districts subject to the jurisdiction of the Commissioner of Education and of the Regents under the Education Law. From the records of the Education Department it appears that said district is a union free school district and has a board of education. This district was formed from the consolidation of several districts. One school took the place of several. Eleven teachers were employed. In the year in question there were 256 pupils in the school. The assessed valuation of the district was over $1,600,000 and the tax rate in said district was approximately $10 per $1,000. On November 2, 1923, a taxpayer of the district having a child of school age and living three miles from the schoolhouse over a road very little traveled, especially in winter, filed a petition with the Commissioner of Education petitioning “ for relief arising out of the following statements of facts.” The petitioner stated that at the time the old school districts were consolidated the residents of the old district in which she had lived were promised that they would either have transportation provided for the children, or a branch school would be kept in that part of the new district. She stated that the promise to provide the transportation, or to keep a branch school had never been kept. She stated the facts showing the necessity of transportation for her own daughter, eight years of age, and her inability to otherwise send her daughter to school. She stated in her petition: “ 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. On August 14, 1923, the petition, of which the annexed is a copy, was handed to the president of the Board of Education by the attorney of deponent with a request for the Board to take *49some action thereon. That deponent is informed that at the regular meeting of the Board of Education the matter was laid on the table indefinitely, the Board refusing to take any action thereon.” Her petition set forth the necessities of the children of others living in her vicinity and also the character of the road over which these children would have to travel. She appealed to the Commissioner for relief and for an order requiring the board of education to furnish a conveyance for the children residing in her vicinity. Thereafter the board of education filed an answer to this petition. From an examination of said answer it appears that none of the allegations of the petition were denied but the board set up certain facts which it claimed justified the failure to provide transportation. Various affidavits in support of the petition were thereafter filed as a reply to the answer of the board of education. Neither the board nor any one else made application for a hearing upon the issues involved or for an oral argument and no issues were raised except the issue of the merits as raised by the answer of the board. The Commissioner of Education considered the papers on appeal and pursuant to. authority conferred upon him by statute, he designated one of his assistants to investigate the matter, who thereafter made such investigation and reported in writing the facts found by him upon the merits of this controversy. In his affidavit before us on this appeal, the Commissioner of Education states the case before him as follows: “ That deponent as Commissioner of Education after a careful consideration of all the facts presented in this case came to the conclusion that the petitioner’s child and other children of compulsory school age in the neighborhood, known as South Setauket, were being unlawfully deprived of school privileges in that they could not attend school because their parents were unable to provide transportation, and because the district through its electors assembled at district meeting had failed to do so and because the Board of Education had failed to give any proper attention to the appellants’ repeated requests that something be done; that the situation was further aggravated because of the fact that the former South Setauket district in which the appellant lives had been consolidated with District No. 2, as appears from the undisputed allegations of the petition, and the children required to attend the central school without any provision being made for transportation; that in such circumstances the power conferred by statute upon the voters of the district to provide transportation became their duty and since the matter had come before the district meeting and been ‘ turned down,’ as alleged in the petition and not denied in the *50answer, and since the electors had failed to perform their plain duty and since the Board of Education, as the official representatives of the district, had repeatedly ignored the appellant’s request to take some action in regard thereto, it became deponent’s duty, as Commissioner of Education, to overrule and correct the district’s refusal to provide transportation and to require the district to perform its duty and to compel the district, acting through its Board of Education, to provide adequate transportation.”
On March 21, 1924, the Commissioner rendered his opinion and decision in writing in which he set forth all the facts and proceedings and his“ views upon the duty of the district under the law. He sustained the appeal and ordered the board of education “ to provide conveyance * * * 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.” He also ordered: “ 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.”
The Commissioner has not given an arbitrary construction or application of the statutory duty imposed upon the district in this instance. He has fully explained the grounds of his decision. In his opinion the Commissioner stated as follows: “ The law does not impose upon a district the arbitrary duty of providing transporation for children living in remote parts of the district. Qualified electors of a district may, by a majority of the votes of those present, provide by tax or otherwise for the conveyance of children of school age whenever there are any such children in the district who reside so remote from the schoolhouse that they are practically deprived of school advantages during any portion of the school year (See Education Law, § 206, subd. 18), but where it appears that districts have been dissolved and consolidated and children are required to walk an excessive distance in order to attend school it has been held repeatedly that there was an obligation on the part of the consolidated district to see that conveyance was furnished. This is particularly true where, as in the present case, it affirmatively appears that the parents have no adequate means of transporting the children. Where the children are so placed that they cannot walk to and from school during any portion of the school year and their parents are unable to provide conveyance it has been held repeatedly that it is the duty of the district in which such children reside to take action under the authority conferred by the above-cited section of the Education Law and make necessary provision for conveyance. In my opinion this. *51district has failed to fulfill its duty in this respect as to these children residing in the above-mentioned portion of the district. This is not a case where the taxable resources of the district are insufficient to justify an order requiring transportation. The district has an assessed valuation of over $1,600,000. While a school is being maintained with eleven teachers, the tax burden is not heavy and the evidence establishes the fact that the children living in this neighborhood are being denied educational advantages at present because they have no means of attending the school in their district and for that reason most of them have not attended school at all during the present school year. This condition cannot be permitted to continue. The consolidated district is financially able to provide transportation and the Board of Education must take immediate steps to do so.” (See Matter of [Hawkins] Appeal Relative to Transportation of Children [Town of Brookhaven] 31 State Dept. Rep. 85.)
The decision of the Commissioner was thereafter duly filed in the district and a copy thereof was served upon the board of education. Instead of complying with the decision and order of the Commissioner, the board of education called a district meeting and submitted to that meeting the question whether transportation should be provided. The voters present at that meeting voted against providing such transportation. When this action was called to the attention of the Commissioner, an order was made by the acting Commissioner of Education withholding from the district the balance of the public moneys due to it on account of the failure of the district to comply with the decision and order of the Commissioner as authorized by the statute. Thereafter this certiorari proceeding to review the determination of the Commissioner was commenced.
It is urged that the Commissioner had no authority to issue his order (1) because the order was predicated upon an appeal from the action of the board of education and not from any action of a district meeting; (2) because section 206, subdivision 18, of the Education Law is not mandatory but provides that the inhabitants of the district at a district meeting may authorize transportation and the levying of a tax therefor; that the power of the board of education to provide transportation is dependent upon previous action of the district meeting authorizing the same; and that this board of education was not so authorized and has been ordered by the Commissioner to do something which the statute did not authorize the board to do or the Commissioner to direct it to do; and (3) that the Legislature had no power to confer upon the Commissioner of Education authority to direct the *52levying of a tax upon the inhabitants of the district to enforce his decision under section 891 of the Education Law, even assuming that the appeal before him included an appeal in consequence of the action of the district meeting as well as that of the board of education.
It is provided by section 890 of the Education Law (as renum. from § 880 by Laws of 1918, chap. 252) that “ any person conceiving himself aggrieved may appeal or petition to the Commissioner of Education who is hereby authorized and required to examine and decide the same; and the Commissioner of Education may also institute such proceedings as are authorized under this act and his decision in such appeals, petitions or proceedings shall be final and conclusive, and not subject to question or review in any place or court whatever. Such appeal or petition may be made in consequence of any action: 1. By any school district meeting; * * * 7. By any other official act or decision of any officer, school authorities, or meetings concerning any othér matter under this chapter, or any other act pertaining to common schools.” It is also expressly provided by section 891 of the Education Law (as renum. from § 881 by Laws of 1918, chap. 252) that “The Commissioner, in reference to such appeals, petitions or proceedings, shall have power: 1. To regulate the practice therein. * * * 4. 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.” These grants of power must be considered in conjunction with the Constitution (Art. 9, §§ 1, 2) and the other provisions of the Education Law. In this connection the Court of Appeals has said: “ By the Education Law the Education Department is charged with the general management and supervision of all public schools and all of the educational work of the State (Education Law, sec. 20), and the Commissioner of Education is the chief executive officer of the State system of education (Education Law, secs. 20, 94) and he is by the Legislature recognized as having judicial functions. (Education Law, secs. 46, 94, 398, 890, 891, 892.) The authority of the Commissioner of Education to hear appeals as by the statute provided and the binding effect of his decision and that of his predecessors in authority have been a part of our statute law since 1822. (Laws of 1822, chapter 216.) * * * The purpose of the statute and of the *53amendment is to make all matters pertaining to the general school system of the State within the authority and control of the Department of Education and to remove the same so far as practicable and possible from controversies in the courts. It has been frequently held that there is conferred upon the executive head of the Education Department power to review on the petition of a person aggrieved any decision mentioned in the School or Educ-cation Law. * * * The State Constitution was revised and established in 1894 and it provides: ' The Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated.’ It also provides: ‘ The corporation created in the year 1784, under the name of the Regents of the University of the State of New York, is hereby continued under the name of The University of the State of New York. It shall be governed and its corporate powers, which may be increased, modified or diminished by the Legislature, shall be exercised by not less than nine Regents.’ (Constitution State of New York, article 9, secs. 1, 2.) It was ratified by the people with knowledge and appreciation of the history of the free common schools of the State and of The University of the State of New York.” (Bullock v. Cooley, 225 N. Y. 566, 576.) Thus the broad purpose of the Education Law to make all matters pertaining to the general school system of the State within the authority and control of the Commissioner of Education as the executive head of the department has been held to be constitutional and valid. The Commissioner has the power to review on the petition of a person aggrieved, any decision mentioned in the Education Law. Section 890 of the Education Law “ gives the Commissioner power of deciding controversies arising from the action or failure of action of bodies or individuals generally or, for the time being, made agencies of the Education Department and which are subject to the undisputed authority of the Education Law and bound to obey its commands. * * * As illustrative of other subdivisions we find specified as those whose actions may be reviewed, school district meetings,” etc. (People ex rel. Hylan v. Finegan, 227 N. Y. 219, 224.)
Thus a school district meeting stands in the position of an agency of the Education Department and is subject to the undisputed authority of the Commissioner to decide controversies arising from its action or failure of action. The same is true of the board of education of this school district. The question of transportation of school children is a matter of school administration and policy under the Education Law. It is an incident and in some cases a necessary incident to the enforcement of the compulsory attend*54anee law. (Education Law, art. 23, as amd.) Unless the Commissioner exceeded any statutory authority in dealing with this controversy over transportation in this district, his ruling is final and conclusive under the law. It is claimed that his order was predicated upon an appeal from the action of the board of education and not from the action of the district meeting. The statute, however (Education Law, § 891), gives to the Commissioner the power to regulate the procedure and practice in all of the applications made to him for a review of any such decision. The statute does not prescribe any limitations as to practice. It is sufficient if the moving papers show facts sufficient to support his jurisdiction. He had the right to treat the petition and proceeding before him in this case as an appeal from the failure of the district meeting to act as well as the failure of the board to take such action as the situation required. The petition before him showed the necessary fact as to refusal of the district meeting to provide transportation. He could make the procedure before him as informal as he desired. He treated the appeal as one in consequence of the action of the district meeting and he granted to the petitioner the ultimate relief to which she conceived herself entitled and for which she asked. To say that his order was predicated upon an appeal only from the action of the board of education, is to find contrary to the fact expressly stated by the Commissioner. He expressly found that the district had passed upon the question with disapproval. He substituted his judgment for that of the district, as he had a right to do, and ordered the board of education to act accordingly.
The next question which arises is whether the Commissioner was guilty of a usurpation of power in substituting his judgment for that of the district meeting where the language of the Education Law (§ 206, subd. 18) is not mandatory in form but merely confers power upon the district meeting, through the vote of the inhabitants thereat, to provide for transportation by “ tax or otherwise.” It is provided by section 206, subdivision 18, of the Education Law that “ whenever in any school district children of school age shall reside so remote from the school-house therein that they are practically deprived of school advantages during any portion of the school year, the inhabitants thereof entitled to voté are' authorized to provide, by tax or otherwise, for the conveyance of any or all pupils residing therein * * * to the school maintained in said district, and the trustees thereof may contract for such conveyance when so authorized in accordance with such rules and regulations as they may establish, ’ ’ etc. It is claimed by the petitioners that this language is permissive only, leaving the matter to the judgment of *55the inhabitants of the district “ to provide, by tax or otherwise, for the conveyance ” and limiting the trustees’ right to “ contract for such conveyance when so authorized.” It is a long-established principle that where a public body is clothed with power and furnished with means to do an act required for the public interests, the execution of such power will be insisted upon as a duty, although the statute conferring it is only permissive. In such cases the word “ may ” is interpreted as mandatory. (People ex rel. Cayuga Nation v. Land Commissioners, 207 N. Y. 42, 50; Phelps v. Hawley, 52 id. 23; Hagadorn v. Raux, 72 id. 583; Hutson v. City of New York, 9 id. 163.) Under the broad and final power of the Commissioner to review any decision of the district meeting as a school agency and to decide the matter for the district, the Commissioner had the power to apply this doctrine in rendering his decision. Did he apply it arbitrarily and capriciously? That is the only question that might survive in a court review. In his opinion the Commissioner does not hold it to be the arbitrary duty of the district under this statute to provide transportation for children living in remote parts of any district, but he holds that under the facts and circumstances of this case, where districts have been dissolved and consolidated and children are required to walk an excessive distance under serious obstacles which prevent them from walking to and from school during any portion of the school year and their parents are unable to provide conveyance, thus unlawfully depriving these children of school privileges and in a district which has taxable resources amply justifying provision for transportation, the power conferred by the statute upon the voters of the district to provide such transportation becomes their plain duty under the Education Law. Since the electors had failed to perform their plain duty when the matter was brought before the district meeting and since the board of education, as the official representatives of the district, had repeatedly ignored the petitioner’s request to take some action in regard thereto, the Commissioner held it to be his duty to overrule and correct the district’s refusal to provide, by tax or otherwise, for the conveyance and to compel the district, acting through its board of education, to provide adequate transportation. The express grant of power to the inhabitants of the district to provide, by tax or otherwise, for such conveyance must be considered with the other provisions of the Education Law which make all matters pertaining to the general school system of the State, including decisions of school district meetings, within the authority and control of the Commissioner of Education as the executive head of the department. It seems clear that the Commissioner had the right to overrule and correct the refusal of the *56district meeting to provide this transportation and to substitute his judgment for that of the district meeting and thus to lay the foundation for his order directing the district through its board of education to provide such transportation.
But it is claimed that his order involves the levying of a tax upon the inhabitants of this district and that the Legislature was without power to confer authority upon the Commissioner of Education to levy such a tax; that the power to tax cannot be delegated by the Legislature and that this rule is subject solely to the exception that the Legislature may delegate to municipal officers the power to tax, for municipal purposes, property within the municipality. This argument calls in question the right of the Commissioner “ to provide, by tax or otherwise, for the conveyance ” under section 206, subdivision 18, of the Education Law, when he substitutes his action for that of the district in overruling or correcting its action and also that provision of section 891 of the Education Law which gives to him the power “ 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.” The theory, that this clear statutory authority authorizing the Commissioner to direct the levying of a tax upon the district is unconstitutional and void, is clearly unsound. The Commissioner does not levy the tax. He merely substitutes his decision for that of the district meeting. The school district is a unit of a unique State system which has been under the control of the Commissioner of Education and his predecessors in authority and the Regents since 1822. And since the passage of the Consolidated School Law of 1864 (Laws of 1864, chap. 555, tit. 12, § 2, subd.. 4) the Commissioner of Education and. his predecessors in authority have had the power given by section 891, subdivision 4, of the Education Law, to direct the levy of taxes when necessary or proper to give effect to their decisions. (See, also, Consol. School Law of 1894 [Laws of 1894, chap 556], tit. 14, § 2, subd. 4; Education Law of 1909, § 361, subd. 4.) This statutory power has been repeatedly exercised during so many years without having been disturbed on the ground of unconstitutionality that it ought not now to be questioned upon any such theory of interference with our principles of local self-government and as constituting “ taxation without representation.” With knowledge and appreciation of the history of the management of the common schools of the State as a State system under the control of the State Department of Public Instrudtion and the Regents, there were inserted in the Constitution of 1894 provisions {supra) giving to the Legislature special powers and duties with reference to the maintenance and support of a “ system ” of free *57common schools in the State. Clearly the “ system” intended could have been that which the Legislature had adopted and approved for thirty years prior to the granting of the special constitutional power to the Legislature.
For these reasons I dissent from the views and determination of the majority of the court and vote for an affirmance of the order.
Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.