On appeal from the Superior Court, Law Division, certified by this Court on its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Brennan. For affirmance -- Justices Wachenfeld, Burling and Jacobs. The opinion of the court was delivered by Vanderbilt, C.J. Burling, J. (dissenting). Mr. Justice Wachenfeld and Mr. Justice Jacobs authorize me to state that they concur in the views expressed herein.
This is an appeal by the defendants below from a summary judgment in the Law Division of the Superior Court, which we have certified on our own motion before hearing in the Appellate Division of the Superior Court.
The complaint simply alleges: (1) that on March 25, 1953 the plaintiff board of education decided that it had underestimated in its annual estimate the amount of moneys necessary to run its schools for the current school year; (2) that it delivered to the members of the board of school estimate a statement of the amount of money necessary for that purpose; (3) that on May 29, 1953 the board of school estimate
by formal action determined that the additional sum of $127,517 was necessary for the operation of the schools of Elizabeth for the school year July 1, 1952 to June 30, 1953; (4) that it delivered its certificate to the board of education and to the city council; but that (5) the city council failed to pay over the amount of the appropriation to the plaintiff.
Nowhere in the complaint is there any reference to an emergency. An emergency is first mentioned in the preamble to the certificate and resolution of the board of school estimate of May 29, 1953, attached to an affidavit of the secretary and business manager of the plaintiff board of education supporting its motion for summary judgment. Nor is the nature of the emergency discussed in the moving papers.
The answering affidavits of the city are more enlightening. They show that on March 13, 1952 the board of school estimate certified to the city a school budget of $3,852,814.91 for the school year July 1, 1952 to June 30, 1953, above mentioned. Because the requisition exceeded 1 1/2% of the valuation of the assessable ratables of the city as determined by the county board of taxation for 1952, it was necessary under R.S. 18:6-53 for the city to consent to the appropriation, which it did on March 19, 1952. Within two months thereafter, on May 18, 1952, the board of education by resolution decided to increase the salaries of all school employees $200 a year commencing July 1, 1952, the beginning of the school year above mentioned. The resolution recited that "it is necessary to have an additional or supplemental appropriation to meet the salary increase contemplated," and to that end it requested the board of school estimate to provide an additional or supplemental appropriation of $190,000. This request the board of school estimate rejected on June 9, 1952. On November 13, 1952 the board of education again requested an additional or supplemental appropriation of $169,725, but this time for the salary increases in the second half of the school year. This request the board of school estimate likewise refused. Nevertheless, in the face of these rejections by the board of school estimate the board of education
proceeded pursuant to its resolution of May 18, 1952 to grant all of its employees a $200 a year increase beginning July 1, 1952. The affidavit of the comptroller of the city states
"If it now finds itself short of funds, it is not caused by the fact that it underestimated its requirements in its annual estimate, the amount of money necessary, but solely because it granted the salary increases despite the fact that the Board of School Estimate refused to allow the money for such salary increases."
These answering affidavits stand uncontradicted.
1. The city contends that the emergency appropriation of $127,517 is not binding on it because it has not consented thereto. It seeks to apply ...