Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
These appeals involve a review under R.R. 4:88-8 of the consents given by the State Commissioner of Education (hereinafter "Commissioner") and the State Local Government Board (hereinafter "Board") to a proposal for a new school bond issue, in excess of defendant school district's debt limit, acting under N.J.S.A. 18:5-86. Plaintiffs, who are residents and taxpayers of the Borough of Westwood, contest the adequacy of the proofs before these state administrative officials and the procedural propriety of the approval action taken by each of them. Additionally, plaintiffs challenge the constitutionality of N.J.S.A. 18:5-86 because it interposes an "alien will" between the Legislature and the electorate, contrary to our 1947 Constitution, Art. IV, Sec. I, par. 1, and because that section of the School Bond Law does not contain proper standards to guide the two agencies in carrying out their delegated functions.
Much of the background of this case may be found in the opinion of this court in Botkin v. Westwood , 52 N.J. Super. 416 (1958), appeal dismissed 28 N.J. 218 (1958). A reading of that case will explain the dissatisfaction of many Westwood residents and taxpayers with the present school
arrangement and the proposed expansion of the school plant to be financed by the issuance of bonds. Plaintiffs reflect that dissatisfaction.
On July 1, 1951 the Borough of Westwood, formerly a receiving school district for its neighbor, Washington Township, joined with the latter in establishing defendant consolidated school district pursuant to N.J.S.A. 18:5-17.1 et seq. The Westwood Consolidated School District has operated from that date onward, there being no provision in our statutes for deconsolidation. Since its creation the school district has been faced with a ballooning school population in Washington Township, rendering existing school facilities entirely inadequate and creating an obvious need for more facilities. This problem has engaged the attention of local officials over the past few years. Various programs have been considered and certain steps taken to alleviate crowded schools. Two new elementary schools, both in Washington Township, were built, and additions made to two other elementary schools. Studies looking to a more complete solution of the local problem were undertaken, and citizen interest stimulated through committees and discussion. Defendant district board of education has continued to give the matter its undeviating attention.
In December 1958 a bond proposal referendum of $2,325,000 for a junior high school in Washington Township went before the voters and was defeated. Faced with the continuing need for additional school facilities, the school board, after careful study, adopted two proposals: (1) to build a new senior high school, and (2) to erect a third elementary school, both in Washington Township. The present Westwood High School was to be converted into a junior high school. The total cost of this program, $3,100,000, was to be financed by a bond issue.
There was a good deal of opposition to the plan by Westwood residents, apparently, among other reasons, because they would be obliged to pay for a large share of the cost of the proposed construction, while Washington Township,
a rapidly growing community, would enjoy most of the benefits. On November 2, 1959 the board of education, in compliance with N.J.S.A. 18:5-86(a), submitted both proposals to the Commissioner and the Board for approval and consent as required by subsections (c) and (d) of the statute.
Under the School Bond Law, a school district must meet certain financial conditions before it may authorize and issue new bonds for construction of facilities without prior state administrative approval. N.J.S.A. 18:5-84 and 85. When the net school debt of the district reaches a certain ceiling (6% or 8%) new bonds may not be authorized and issued until the Commissioner and the Board have endorsed their consents to the bond proposal. N.J.S.A. 18:5-86(c) provides:
"Within 60 days after submission to the State Commissioner of Education of a copy of a proposal or ordinance pursuant to subsection (b) of this section, he shall endorse his consent thereon if he shall be satisfied and shall record in writing his estimates that existing educational facilities in such school district are or within 5 years will be less than 80% adequate, that the new educational facilities to be financed pursuant to such proposal or ordinance will within 10 years be fully utilized, and that under existing statutes there is no alternative method of providing such new educational facilities which would be more economical. If the State Commissioner of Education shall not be so satisfied within said period of 60 days, he shall endorse his disapproval on such copy."
It will be seen that the Commissioner is primarily concerned with the need and feasibility of the proposed educational facilities.
The Board, in turn, investigates the financial stability of the school district and is required to make certain calculated estimates within the area of its administrative expertise. This can be seen from a reading of N.J.S.A. 18:5-86(d), which provides:
"Within 60 days after the submission to the Local Government Board of any copy of a proposal or ordinance pursuant to subsection
(b) of this section, it shall cause its consent to be endorsed thereon if it shall be satisfied and shall record by resolution its estimates that the amounts to be expended for the new educational facilities to be financed pursuant to such proposal or ordinance are not unreasonable or exorbitant, and that issuance of the bonds mentioned and described in such proposal or ordinance will not materially impair the credit of any municipality comprised within such school district or substantially reduce its ability during the ensuing 10 years to pay punctually the principal and interest of its debts and supply essential public improvements and services, and that authorization of such bonds would not be possible under the provisions of either section 18:5-84 or section 18:5-85 of this article, and that, taking into consideration trends in population and in values and uses of property and in needs for educational facilities, the net school debt of such school district will at some date within 20 years be less, in the case of a certified local school district, than 8%, or in the case of any other school district, than 6% of the average assessed valuation of property in such school district as stated in supplemental debt statements, which might be filed on such date. If the Local Government Board shall not be so satisfied within said period of 60 days, it shall cause its disapproval to be endorsed on such copy."
The Board is thus primarily concerned with the financial stability of the issuing district.
The record shows that the school district provided both the Commissioner and the Board with detailed information on forms supplied by these administrative agencies. Both held public hearings and afforded objectors an opportunity to appear. Although notice of these hearings was posted both in the borough and in the township, only one objector appeared before the Commissioner, and none before the Board. Following the hearings, and after considering the information and data submitted, the Commissioner endorsed his consent to the bond proposal on November 18, 1959, and the Board its consent on November 30. The proposals for the new senior high school and new elementary school were submitted to the voters at a referendum held December 9, 1959. Although Westwood voted against the proposals, they carried in the school district because of the preponderating favorable vote in Washington Township.
Plaintiffs contend that N.J.S.A. 18:5-86 is unconstitutional because it interposes an alien will between the Legislature and the voters. The argument is predicated upon Attorney-General v. McGuinness , 78 N.J.L. 346 (E. & A. 1910), and McCarthy v. Walter , 108 N.J.L. 282 (E. & A. 1931). McCarthy involved the Park Act of 1902 (c. 277), which provided that it was not to be submitted to the voters of any county for acceptance or rejection unless and until the freeholder board by resolution so determined. In ruling that the discretion so lodged in the freeholders was an alien will intervening between the Legislature and the electorate, the court adopted the language of the McGuinness case (78 N.J.L. , at page 384):
"* * * the legislative will may be imposed as law upon municipalities, but, if any other will is to intervene between the legislature and such municipalities, it must be the will of the people who are to be governed by such law and not an alien will, even though it be that of the governing body for the time being of the municipality. * * *"
McGuinness concerned the former Civil Service Act (L. 1908, c. 156). Although holding that the law was valid insofar as it authorized municipalities and counties to adopt it by referendum, even though the statute involved delegation of some municipal governmental authority to a state commission, the Court of Errors and Appeals held the law unconstitutional as an improper delegation of legislative power to the local governing body by giving it the power to determine, in its discretion, whether the law should become effective. Thus, in both these leading cases, the voters were at the mercy of an independent will. Cf. Bucino v. Malone , 12 N.J. 330 (1953), holding constitutional the Faulkner Act, L. 1950, c. 210; N.J.S.A. 40:69 A -1 et seq. , and distinguishing the McCarthy and McGuinness cases.
A number of cases have limited the quoted holding of McGuinness solely to a delegation of law-making authority.
Where the act of the Legislature is complete, and the intervention of a will foreign thereto is not determinative of the operative effect of the law, the statute is unobjectionable on the constitutional ground advanced by plaintiffs. In Hartman v. Board of Chosen Freeholders , 127 N.J.L. 170 (Sup. Ct. 1941), acceptance by the freeholder board of custody and control of the county jail under authorizing legislation was held not to constitute a delegation of legislative power in contravention of Art. IV, Sec. I, par. 1 of the 1844 State Constitution. Eccles v. Egg Harbor Twp. Comm. , 11 N.J. Misc. 698 (Sup. Ct. 1933), and Worth v. Westfield , 81 N.J.L. 301 (Sup. Ct. 1911), held that a governing body did not exercise a legislative power in determining whether to accept or adopt an act creating a board of assessors in lieu of a single assessor. Our former highest court, in Hayes v. Hoboken , 93 N.J.L. 432 (E. & A. 1919), held constitutional an enabling statute allowing an intervening determination as to whether a police pension system should be adopted. L. 1916, c. 144. It reached a similar result in Noonan v. Hudson County Freeholder Board , 52 N.J.L. 398 (E. & A. 1890), involving an act which gave the freeholder board the right to determine whether a proposal to construct a county road should be submitted to the voters. Wilson v. Collingswood , 81 N.J.L. 634 (E. & A. 1911), affirming 80 N.J.L. 626 (Sup. Ct. 1910), concerned a statute requiring a proposal for the construction of water works in a borough, as well as the bond issue needed to finance the program, to be submitted to the voters for their approval. State Board of Health and State Water Supply Commission approval of the proposed water works was also required. Although the court did not deal with the issue here raised by plaintiffs, the decision reflects an understanding of the principle we have just discussed.
Our present Supreme Court has considered the operation of N.J.S.A. 18:5-86 on two separate occasions and reviewed both the functions to be performed by administrative regulation, Citizens to Protect Public Funds v. Parsippany-Troy
Hills Bd. of Education , 13 N.J. 172, 177 (1953), and the legislative standards, Kenilworth v. Raubinger , 15 N.J. 581, 586 (1954). Kenilworth was a case similar to this one, but the constitutional issue was not raised. In the light of these two cases, it would seem reasonable to say that the constitutional defects claimed to inhere in N.J.S.A. 18:5-86 have not been so obvious as to suggest themselves until plaintiffs brought this action. In neither case did the court admit of any doubts about the validity of the statute.
The functions to be discharged by the Commissioner and the Board under the statute in question can hardly be classified as legislative. Nor do we consider that the statutory mandate to act within certain standards allowed them untrammeled discretion. The provision of the School Bond Law under attack is clearly distinguishable from cases where the law does or does not become effective at the discretion of an alien will. Here the state agencies do not exercise volition as to whether the referendum shall or shall not take place. They merely determine whether or not there exist certain conditions specified by the Legislature relevant to the necessity of the proposed program and the school district's capacity to finance it without undue fiscal difficulty.
The School Bond Law is, of course, operative in every school district, from the moment of its creation. The only question here is whether a proposal for a new bond issue shall be submitted to the voters after certain standards are satisfied. McGuinness and McCarthy , above, recognized this distinction. When the Faulkner Act was attacked in Bucino v. Malone , above, the Supreme Court clearly pointed out that the alien will which was there ...