Schettino, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D. Gaulkin, J.A.D. (dissenting).
This appeal involves a fundamental question concerning the legislative division of the powers and responsibilities of government at the municipal level between the local governing body and the board of education.
On September 23, 1958 the Mayor and Council of the Borough of Westwood adopted a resolution requesting the Bergen County Clerk to print upon the official ballots to be used at the general election in the borough on November 4, 1958, the following question as a non-binding referendum (R.S. 19:37-1, as amended):
"Should any action be considered to effect a deconsolidation of the Consolidated School District of Westwood and Washington Township?"
A copy of the resolution was duly filed with the county clerk and he has printed the question on the sample and official ballots. R.S. 19:37-2, as amended.
About three weeks later plaintiff, a borough citizen and taxpayer, commenced this action in lieu of prerogative writ seeking to set aside the resolution as illegal and void and to direct the county clerk to remove the question from the ballot on the principal grounds that the resolution goes beyond the power and authority granted a municipal governing body by the cited statute and constitutes an illegal interference by such body with the affairs of the consolidated school district, a separate and distinct entity.
Plaintiff moved for summary judgment in the Law Division on October 24. The trial court, in view of the time emergency apparently, and most properly, relaxed the rule forbidding such a motion until after the expiration of 20
days from the service of the complaint. R.R. 4:58-1; cf. R.R. 4:88-4; R.R. 1:27 A. On the motion affidavits were presented in behalf of plaintiff and the governing body which detailed the situation and its background. No issue of fact was presented thereby and the issue was purely legal. The motion was denied that day.
Plaintiff applied to us on October 27, on proper notice, for leave to appeal. Leave was granted because of the general public importance of the matter. By reason of the very urgent time element counsel for all parties agreed that their oral arguments and briefs on the motion, which thoroughly discussed the merits, should be considered by the court, together with a supplemental memorandum subsequently filed, as their presentation on the appeal itself. The Deputy Attorney General orally expressed to the court the viewpoint of the Commissioner of Education on the issue without objection by any of the parties. We decided the appeal on October 29, one judge dissenting, reversing the order denying plaintiff's motion for summary judgment, directing the entry of a judgment in this court granting the motion to the extent of setting aside the resolution as illegal and void and of ordering the county clerk to remove the public question from the official ballot to be used at the general election on November 4 and further ordering that our mandate should issue forthwith. Since the borough has appealed and the matter will be heard by the Supreme Court on November 3, it is essential that we immediately express the reasons for our decision.
At the outset we consider certain procedural objections raised by the borough, which we find not to be dispositive. It is suggested that the action comes too late and should be dismissed since the county clerk has already printed and delivered the sample and official ballots. (R.S. 19:14-1; 19:14-21, as amended, 24 and 25, as amended; R.S. 19:49-2, as amended.) While this is true, the county clerk says that, since voting machines are used in Bergen County, that portion of the ballot setting forth the question can be removed from the machines without any real practical
difficulty. The fact that the sample ballot sets forth a question which will not appear on the official ballot on the machines is not controlling under the circumstances since this is not a case where a change in the ballot at a very late date would add to be voted on a question, candidates or offices not set forth on the sample ballot without sufficient opportunity for the electorate to become informed thereon. Cf. Michaels v. Johnson , 33 N.J. Super. 77, 85 (App. Div. 1954). The borough also suggests that plaintiff should have proceeded under R.S. 19:14-20, as amended, which provides for a summary proceeding to correct an "error" appearing on the ballot copy prepared by the county clerk. The matter involved is not an "error" within the contemplation of that section. Michaels v. Johnson, supra (33 N.J. Super. at page 83). Since the question involved is the fundamental power and authority of the municipal governing body in calling for the referendum, plaintiff's proper remedy was that adopted, namely, a complaint in lieu of prerogative writ to review the underlying resolution.
To consider the basic issue in proper focus, we must, in conjunction with our discussion of it, sketch not only the events in Westwood culminating in the resolution, but also outline the New Jersey statutory scheme for the distinct separation at the local level of the public school system from other municipal governmental functions, in municipalities of the class here concerned. Our decision must rest upon the interpretation of the letter and spirit of the legislative intent as applied to the precise problem before us.
Effective July 1, 1951, Westwood and its neighbor, Washington Township, established a consolidated school district pursuant to the statute (N.J.S.A. 18:5-17.1 to 17.29, inclusive) and the consolidated district has been operative since. Westwood had both a high school and elementary schools; the township had only the latter. The effect of consolidation is to create a single separate entity and body corporate to administer the school systems formerly separately administered by the boards of education of the communities entering into the consolidation. The board of education of
the consolidated district gains title to all of the property and assets of the consolidating school districts and is subject to their contracts, debts and other obligations. The consolidated district thereafter has all the powers and duties and is subject to the same restrictions of a so-called "Chapter 7 School District." N.J.S.A. 18:5-17.6.
In New Jersey school districts of whatever classification, though coterminous with municipal boundaries except in cases of consolidated or regional districts, are, and have been for more than half a century, local governmental units, governed by a board of education. R.S. 18:6-21 and 18:7-54. George W. Shaner & Sons v. Board of Education of City of Millville , 6 N.J. Misc. 671, 673 (Sup. Ct. 1928). They are separate, distinct and free from the control of the municipal governing body except to the extent our education law provides. Such freedom is practically complete in the case of Chapter 7 districts; much less so in Chapter 6 districts.
The statutes relating to the latter (R.S. 18:6-1 et seq.) applicable to cities and such other municipalities as may elect to be governed by it, provide for a system where the members of the board of education are appointed by the chief executive officer of the municipal government and annual appropriations, bond issues and other financial matters are determined by a board of school estimate composed of representatives of both the municipal governing body and the board of education.
A Chapter 7 school district, provided for by R.S. 18:7-1 et seq. , also applicable to consolidated districts as we have noted, has almost no connections, except mechanical ones, with the local municipal government. This form of district exists in every municipality except cities and even a city may elect to accept its provisions. The governmental mechanics of such a district constitute the most direct democratic form we have in this state. Not only are the members of the board of education elected by the voters at separate school elections held at different times and places than municipal, primary or general elections, but the annual amounts of money to be raised by taxation, the purchase of
land, the erection of buildings and the issuance of bonds must all be submitted to and affirmatively authorized by the voters at such elections.
While school taxes in New Jersey are assessed, levied and collected along with all other taxes in one levy by the municipality and not by the school district (in many other states school districts levy and collect their own taxes separately), the municipal authorities act only as a mechanical agent of a Chapter 7 school district in levy, collection and remittance and the governing body may not change by even one cent the school tax amount fixed by the school district voters. The fact that the borough is the collecting agent for school district taxes does not give the slightest basis for intrusion in school affairs. Such a district may also even exceed its own debt limit and invade the borrowing power of the municipality by action of the voters at a school election and without the approval of the local governing body. R.S. 18:5-84 and 18:5-85(a)(3), both as amended.
Our examination of Chapter 7 of Title 18 of the Revised Statutes discloses only one substantial instance where the municipal governing body may exercise any power over school affairs. That is in the case where school district voters have twice rejected a budgetary appropriation submitted at the annual school election, in which event the law provides that the governing body of the municipality shall determine the amount "necessary to provide a thorough and efficient system of schools in the district" for the ensuing school year, which amount shall constitute the tax levy for school purposes. R.S. 18:7-82. This is a most limited function, obviously provided by the Legislature to prevent a breakdown in public education in an extreme situation, and cannot be interpreted to give the governing body any warrant for otherwise intruding upon the administration of school affairs directly or indirectly. (This happened in the ...