#### The People ex rel. Frank R. Merrall, Relator, *v.*James S. Cooley, School Commissioner of the County of Nassau, and Andrew S. Draper, Commissioner of Education of the State of New York, Respondents.

(Supreme Court, Kings Special Term,

January, 1912.)

Common schools — Division and consolidation of district — School districts and sites — Meetings of voters — Appeals from orders and resolutions — Appellate jurisdiction of State Superintendent.

The Legislature may provide that all matters involving the administration of the educational system of the State shall in the ' first instance be confided to the educational authorities.

A meeting of an incorporated village held pursuant to sections 130, 131 of the Education Law (Laws of 1910, chap. 140) voted that the village be separated from the union school district and be and become a separate school district. Pursuant to said section 131(3) the result of the canvass of the vote at said meeting was certified to the county school commissioner with a request that he certify that the territory of the village was a separate school district but he declined so to do until satisfied that the entire territory of the village was within the boundaries of the said union school district. Under section 880(7) of the Education Law the school district and an elector thereof took an appeal to the State Com- ■ missioner. of Education who, under section 881 of said statute, stayed the issuance of the certificate separating the school district as voted, and a motion of the village to dismiss the appeal upon the ground that the State Commissioner of Education had no jurisdiction to hear it was denied.

*189Held, that the decision of the question whether the village was not wholly within the said union school district as well as the status of the appellants was for the State Commissioner of Education under the provisions of the Education Law; that mandamus would not lie to compel the State Commissioner of Education to rescind the order staying the issuance of a certificate and compel the county school commissioner to issue the said certificate.

Motion by the respondents to quash the alternative writ of mandamus and to dismiss the proceedings.

Huntington, Rhinelander & Seymour (Origen S. Seymour of counsel), for relator.

William Willett, Jr., for James S. Cooley, county eom.missioner, respondent.

Frank B. Gilbert, for Andrew S. Draper, State Commissioner, respondent.

Kelley, J.

I am of opinion that this proceeding must be dismissed, for the following reasons :

The relator is a resident in and president of the incorporated village of Lawrence in'Hassau county. Pursuant to sections 180 and 131 of the Education Law (Laws 1910, chap. 140) a meeting was held on April 8, 1911, at which it was voted that the village be separated from Union Free School District Ho. 15, and be and become a separate school district. The vote at the meeting was canvassed and the result certified to the respondent school commissioner Cooley, with a request that he certify that the territory of the village was a-separate school district, which is the procedure provided in subdivision 3, section 131 of the Education Law. It is apparent that school commissioner Cooley does not favor the . separation. He declined to issue the certificate until he was satisfied that the entire territory of the village of Lawrence, which is sought to be constituted a separate district, was within the boundaries of Union School District Ho. 15. It is so required in the Education Law. More than that, he coun*190seled an appeal by Union Free School District Mo. 15 to the State Commissioner of Education from the proceedings of the meeting at which the village sought to separate 'itself from the district. The school district and one -Joseph H. Foster, an elector in the district, thereupon appealed to the respondent State Commissioner of Education, claiming that they were aggrieved by the transaction at the village meeting.. The Education Law (§ 880, subd. 7) authorizes an appeal to the Commissioner of Education by any person conceiving himself aggrieved “ By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any othér act pertaining to common schools.” The State Commissioner of Education made an order on May 5, 1911, staying school commissioner Cooley from issuing the certificate separating the school district as voted at the meeting. The issuance of such a stay is provided for in section 881 of the Education Law.

The village of Lawrence'then made a motion before the •State Commissioner to dismiss the pending appeals, upon the ground that he had no1 jurisdiction to hear them, as the appellants were not 'persons aggrieved within the meaning of the statute. This motion was denied, the village was granted time in which to. answer the appeals, but no further proceedings have been taken on such appeals, and they are still pending before the State Commissioner.

The relator now asks a mandamus to compel the State Commissioner of Education to rescind the order staying Commissioner Cooley from issuing the certificate of separation of the district and also commanding commissioner Cooley to issue the certificate in question.

I think the proceeding for mandamus is improper. .These matters are before the State Commissioner of Education for decision. The alleged ground on which the appeals are taken and on which Commissioner Cooley refuses to issue the certificate is that the village of Lawrence is riot wholly within School District Mo. 15. This is one of the statutory requirements before a separate school .district can be formed. The decision of this question, as well as the status of the appellants, is given *191by the Legislature to the State Commissioner of Educa- • tion by the Education Law. It is a part of the general supervisory power which the people have seen fit to vest in the department of education. I think these matters must be decided, in the first instance, at any rate, by the Commissioner of Education. I am not called upon here to pass upon the constitutionality of the provisions in the Education Law which seek to make the decision of the Commissioner of Education final and conclusive and not subject to review in any court. This language is certainly startling at first reading, but I do not think it deprives the courts of jurisdiction in" proper cases, or prevents interference in case the vested rights of any citizen are interfered with. But, certainly, the Legislature could properly provide that all these matters involving the administration of the educational system of the State should be confided, in the first instance, to the educational authorities. The relators sought to constitute themselves a separate district, pursuant to the authority granted in the Education Law, and they must take it as a whole. They cannot accept one part of it and reject another. The Legislature might have repealed the Education Law the day before the village meeting, and there would have been no authority for the action taken. So, when they grant the privilege, it seems to me they may provide for its review by the educational authorities. The village itself is a municipal corporation created by the Legislature. It may be that the Commissioner of Education will sustain the contention of the relator when the matter comes before him. If he' does not, and his action is illegal, or without jurisdiction, I am very sure that it can be reviewed notwithstanding the sweeping provisions of the statute which, at first blush, would seem to make him independent of all authority. But if he has jurisdiction of the matter and of the parties the courts will not interfere with his action any more than in many similar departmental transactions under the law. The courts are not without jurisdiction but, when these matters are left by the Legislature to other legally constituted tribunals, the courts do not interfere. The language of the statute which seems to exempt the commissioner from review has been before the courts; *192and the individual citizen is not without remedy, if he has a legal grievance. People ex rel Light v. Skinner, 159 N. Y. 162; Matter of Light, 30 App. Div. 50; People ex rel. Walrath v. O’Brien, 112 id. 97; People v. Skinner, 74 id. 58; Union F. S. Dist. v. Village of Glen Park, 109 id. 414. I think that the relator’s application is premature and that the writ should be quashed and the proceedings dismissed.

Application denied.