
    Ida F. Cohn, Plaintiff, v. E. Corning Townsend et al., Constituting the Board of School Examiners of the City of Buffalo, Defendants.
    (Supreme Court, Erie Special Term,
    July, 1905.)
    Statutory Construction law, § 24 — City of Buffalo — Charter, §§ 334, 337 — Holiday — Examination for public school teachers may be held Saturday afternoon.
    The provision of the Statutory Construction Law (L. 1892, ch. 677, § 24, as amd. in 1897) declaring that Saturday afternoon shall be deemed a public holiday “ for all purposes whatsoever as regards the transaction of business in the public offices of this state, or counties of this state” does not prohibit an officer from voluntarily performing an official act on such day, or render such act void or voidable, unless the act is such as to create an unlawful preference under the Recording Act or is prohibited by some other statute; and under a municipal ordinance (Ordinances of City of Buffalo, ch. 3, § 20) providing that “All offices in all departments and bureaus of the city government shall be open for the transaction of business on every day excepting Sundays and holidays from 8:30 o’clock A. M. until 4:30 o’clock P. M., and excepting on Saturday when the same shall be open from 8:30 o’clock A. M. until 12:00 o’clock M.’’, the board of school examiners are not prohibited from continuing an examination of applicants to secure positions as public school teachers, beyond noon on Saturday.
    The provision of the charter of the city of Buffalo (L. 1891, ch. 105, § 334) that the board of school examiners shall hold at least one stated meeting each month and (Id., § 337) that they shall hold stated public examinations at such of their regular meetings as they may designate, and at least as often as once every three months, of all the applicants, etc., and no statute prohibiting the holding of such examinations on Saturday, or requiring the said board of examiners to refrain from examining, on that day, persons who observe it as a day of worship, or obliging the board to grant such' persons a special examination on some other day, the court may not control the exercise of the discretion of said board to hold such examinations on Saturday.
    Obdeb to show cause why injunction should not be continued.
    Simon Fleisehmann, for plaintiff.
    Edward L. Jung, city attorney, for defendants.
   Kenefick, J.

This action is brought to enjoin forever the defendants as the board of school examiners of the city of Buffalo from holding examinations of applicants for public school teachers on Saturday and in particular to restrain them from continuing on Saturday the examination which was in progress when this action was commenced.

The complaint alleges in substance that the defendants in their official capacity began an examination of applicants on Monday, June 26, 1905, and announced that such examination would continue each day of the week including Saturday, from eight o’clock a. m. to twelve thirty o’clock p. m., each day being devoted to one or more subjects; that the plaintiff and a number of other persons entered the examination and participated therein down to Saturday; that plaintiff protested to the board against taking the examination in arithmetic and drawing scheduled for Saturday on the ground that “ She and her parents are members of the Orthodox Jewish Faith and Church under the teaching of which it is prohibited and is wrong and sinful for the members of said Church to do any work or labor of any kind or any writing or to perform any services whatsoever on their Sabbath, which continues from sundown on Friday evening of each week until sundown of Saturday the next day; ” that she requested the board to adjourn the examination to some other day or accord her a special examination on some other day, which request was refused; that plaintiff cannot and will not, because of her religious scruples aforesaid, perform on Saturday the work and writing necessary on such examination ; that the holding of such examination in part on Saturday afternoon is contrary to the statute of the State making Saturday afternoon a half-holiday and contrary to the ordinance of said city relating to the office hours of the various departments of the city government; and “ that by reason of the premises the defendants threaten to do the plaintiff irreparable injury and to deprive her of the equal protection of the laws of the land and of the State and to discriminate against her on account of her race.”

Upon this complaint and an accompanying summons and upon affidavits setting forth in detail the facts alleged in the complaint, Justice Lambert, on Friday, June thirtieth, granted an injunction restraining the defendants from continuing the examination on the next day, Saturday, July first, and from taking any proceedings upon and in connection with said examination on said last-named date, except to adjourn or postpone the same to some day other than a Saturday or a Sunday; and with said injunction said justice issued an order to show cause returnable at Special Term on July fifth, why the injunction should not continue during the pendency of the action. Before the examination was resumed on Saturday, July first, some of the defendants were duly served with the summons and complaint and injunction order. The question presented to this court is whether the injunction already granted shall be continued until final judgment.

The power of the court to grant the relief demanded in the complaint is challenged by the defendants, and, of course, if no such power exists in the court, the continuance of the injunction is not justified.

The threatened continuance of the examination a half-hour beyond noon of Saturday is claimed to be in violation of the statutes of the State and of the ordinances of the city. The State statute simply declares that Saturday afternoon shall be deemed a public half-holiday “ for all purposes whatsoever as regards the transaction of business in the public offices of this state or counties of this state.” Stat. Const. Law, § 24 (Laws 1892, chap. 677, as amd. by Laws 1897, chap. 614). It is reasonably clear that this statute applies only to State and county offices and has no application to city offices.

The city ordinance reads: “All offices in all departments and bureaus of the city government shall be open for the transaction of business on every day excepting Sundays and holidays from 8:30 o’clock a. m. until 4:30 o’clock p. m., and excepting on Saturday when the same shall be open from 8:30 o’clock a. m. until 12:00 o’clock m.” Ordinances, Chap. III, § 20.

It will be observed that the ordinance does not in terms declare Saturday afternoon a municipal half-holiday, nor does it in terms prohibit the transaction of business in the public offices of the city. It simply fixes the office hours.

The provision of the Statutory Construction Law above quoted is plainly more stringent than the ordinance in respect to the transaction of public business on Saturday afternoon and yet the Court of Appeals, in construing that provision, says: “ The obvious purpose of this statute was to authorize the closing of the public offices of the state and the counties upon public holidays for the purpose of relieving the officers and employees in such offices from the duty of performing official services on such days. * * * This is the extent of the statute. It' does not prohibit an officer from voluntarily performing an official act on such days or render such acts void or voidable unless the act is such as to create an unlawful preference under the Recording Act or is prohibited by some other statute.” Flynn v. Union Surety & Guaranty Co., 170 N. Y. 145, 147.

In view of this construction of the State statute, it cannot be seriously claimed that, under the city ordinance, the defendants were prohibited from continuing the examination beyond noon of Saturday.

The refusal of the defendants to adjourn the examination to some other day than Saturday, or to grant the plaintiff a special examination because of her religious scruples respecting the performance of manual work on the Jewish Sabbath, it is claimed “ deprives her of the equal protection of the laws of the land and of the State and discriminates against her because of her race.”

The charter of the city (Laws of 1891, chap. 105), in defining the duties of the school examiners, provides that “ The examiners appointed under this act, shall hold at least one stated meeting each month” (§ 334) and. that “The examiners shall hold stated public examinations at such of their regular meetings as they may designate, and at least as often as once every three months, of all the applicants who have filed their applications with the secretary as herein-before provided.” (§ 337.)

This is the only statutory direction with respect to the time of holding the examinations. The day or days except Sunday for holding the examinations within these periods are discretionary with the board of examiners. Sunday or the Christian Sabbath existed as a day of rest at common law and in adopting the common law in the Constitution of our State we took over Sunday as a civil institution of the State, and the Legislature has from time to time enacted laws to regulate its observance as such. Lindenmuller v. People, 33 Barb. 548, 569.

The transaction of public business on Sunday is prohibited, therefore, because of the character of the day as a civil institution. It is probably within the power of the Legislature to confer upon Saturday or any other day a similar character as a civil institution, and even to destroy the character of Sunday as such. Such power, however, does not exist in the courts, nor can it be effectuated by individual insistence on religious scruples, nor can it be imposed by the spiritual teaching of any faith or church.

In the Lindenmuller case, above cited, the court said: The Christian sabbath is one of the civil institutions of the state, and to which the business and duties of life are, by the common law, made to conform and adapt themselves. The same cannot be said of the Jewish sabbath, or the day observed by the followers of any other religion. The respect paid to such days, other than that voluntarily paid by those observing them as days of worship, is in obedience to positive law.”

Therefore, as there is no statute prohibiting the holding of such examinations on Saturday or requiring the board of examiners to refrain from examining on that day persons' who observe it as a day of worship, or obliging the board to grant such persons a special examination on some other day, it is well within the power of the board to hold such examinations on Saturday and there is no authority in the court to control the exercise of their discretion in that regard.

No rule of law is more firmly settled than that the court has no power to control the exercise of the judgment and discretion which the law reposes in an executive officer as a part of his official functions.

It may be entirely practicable for the board of examiners to refrain from holding examinations on Saturday or to grant special examinations on some other day to persons who observe Saturday as a Sabbath, but the decision of that question rests with the board and the court cannot guide or control it.

The facts alleged in the complaint do not establish or tend to establish that the plaintiff has been deprived of the equal protection of the laws, or has been discriminated against on account of her race, but indicate on the contrary that she is applying for a special privilege which it is not within the power of any court to grant.

The views hereinabove expressed necessarily lead to a denial of the motion to continue the injunction and to the vacation of the injunction heretofore granted.

Motion denied.  