Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, J.A.D.
Plaintiffs Board of Education of the City of Hackensack and two individual taxpayers of the municipality challenge the validity of a resolution of the Mayor and Council of the City of Hackensack providing for the placement on the official ballot to be used at the next general election and to be voted upon by the voters of the city the following proposition:
"Are you in favor of spending $2,586,579.00, excluding equipment, based on an estimate published by the Board of Education in June, 1960, for the conversion of the State Street Junior High School into a consolidated Central Junior High School?"
The Bergen County Clerk has arranged to place this question on the ballot to be voted upon by the voters of Hackensack at the general election of November 8, 1960.
The Law Division, Bergen County, held the resolution lawful, and plaintiffs appeal.
The action of the governing body was taken pursuant to N.J.S.A. 19:37-1, which reads as follows:
"When the governing body of any municipality or of any county desires to ascertain the sentiment of the legal voters of the municipality or county upon any question or policy pertaining to the government or internal affairs thereof, and there is no other statute by which the sentiment can be ascertained by the submission of such question to a vote of the electors in the municipality or county at any election to be held therein, the governing body may adopt at any regular meeting an ordinance or a resolution requesting the clerk of the county to print upon the official ballots to be used at the next ensuing general election a certain proposition to be formulated and expressed in the ordinance or resolution in concise form. Such request shall be filed with the clerk of the county not later than forty days previous to the election."
The result of such a referendum is not binding on the governing body. R.S. 19:37-4.
The assault upon the proposed referendum is made upon the following grounds: (1) the resolution was required to be adopted at a regular meeting of the governing body, but in fact was adopted at a special meeting September 26, 1960; (2) the subject of the referendum is an improper intrusion by the governing body into school affairs; it is not a matter pertaining to the "government or internal affairs" of the municipality, within the interpretation of the statute by this court in Botkin v. Mayor and Borough Council of Borough of Westwood , 52 N.J. Super. 416, 432 (App. Div. 1958), appeal dismissed on other grounds 28 N.J. 218 (1958); and see Santoro v. Mayor and Council of Borough of South Plainfield , 57 N.J. Super. 498 (App. Div. 1959), for the reason that the problem involved in the proposition was not then before the governing body nor within its jurisdiction; (3) there are specific statutes available by which the sentiment of the voters on the question can be ascertained by referendum; and (4) the phraseology of the proposition is false and misleading.
The pertinent statutory and factual background is as follows:
The Hackensack school district is what is known as a "Chapter 6" district. R.S. 18:6-1 et seq. The here significant characteristic of such a district is that general responsibility for its fiscal affairs is shared between an appointive Board of Education and a Board of School Estimate comprised of some members both of the Board of Education (here, two) and of the governing body of the municipality (here, three, including the Mayor). When the Board of Education decides it is necessary to raise funds for land or buildings it prepares and delivers to the members of the Board of School Estimate a statement of the amount estimated as necessary therefor, R.S. 18:6-59. The latter agency is directed ("shall") to "fix and determine the amount necessary therefor" and to certify such amount to the Board
of Education and to the governing body, R.S. 18:6-60. The statute then provides that the governing body "shall," subject to N.J.S.A. 18:6-62, either: (a) appropriate the sum so fixed in the same manner as appropriations generally are made or (b) by ordinance appropriate the amount of money so fixed and borrow the requisite funds through the issuance of bonds "in accordance with the provisions of Article 18 of Chapter 5 of this Title (§ 18:5-84 et seq.)" and under specified regulations not here pertinent. N.J.S.A. 18:6-61. The moneys appropriated or the proceeds of ...