Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
[72 NJSuper Page 61] Plaintiffs seek judgment setting aside the reapportionment of the membership of the Board of Education of the Central Regional School District in Ocean County made by defendant Charles S. Whilden, Ocean County Superintendent of Schools, pursuant to the provisions of N.J.S.A. 18:8-5; directing him to apportion the membership to provide for a representation of two members for Lacey Township; and ordering defendant Elizabeth DeCamp, secretary of the board of education, to accept for
filing the nominating petition of plaintiff John C. Parker and to place his name upon the ballot to be used in the school board election to be held February 6, 1962.
Plaintiffs, who are the members of the Lacey Township Committee, Lacey Township itself, and Parker, instituted this action in the Law Division by a verified complaint in lieu of the prerogative writ of mandamus. An order issued calling upon defendants to appear before the Law Division on January 12, 1962 and show cause why judgment should not be entered granting the relief sought by plaintiffs, and further, restraining them from taking any action with respect to the printing of ballots for the school board election pending final determination of the matter. Defendants moved to dissolve the temporary restraint and dismiss the complaint because plaintiffs had failed to exhaust their administrative remedies, as required by R.S. 18:3-14 and 15 and R.R. 4:88-14. Upon the return day of the order to show cause it was suggested that the Law Division might not be vested with jurisdiction since the matter involved the review of action by a state administrative agency under R.R. 4:88-8. The Law Division judge thereupon, on his own motion, transferred the case to the Appellate Division.
Both sides agree that this matter properly belongs in the Appellate Division. A state agency is involved, since all county superintendents of schools are appointed by the State Commissioner of Education with the advice and consent of the State Board of Education, N.J.S.A. 18:4-1, and are directed and supervised by him, N.J.S.A. 18:3-19. A county superintendent of schools exercises general supervision over the public schools of the county in his charge, in accordance with rules and regulations prescribed from time to time by the State Board of Education, N.J.S.A. 18:4-7. He is required to render an annual report to the State Commissioner of Education on such matters
relating to the schools under his direction as the Commissioner shall require, R.S. 18:4-8.
In September 1954 the school districts of Berkeley and Lacey Townships, and the Boroughs of Island Heights, Seaside Park, Seaside Heights and Ocean Gate, formed a regional school district known as the Central Regional School District under the provisions of R.S. 18:8-1 et seq. , as amended. N.J.S.A. 18:8-4 provides that when such a regional school district is created the county superintendent of schools shall select from among the citizens of the school districts comprising the regional district nine members to constitute the regional board of education. The regional board of education, as originally constituted, was comprised of two members each from Berkeley and Lacey Townships and Seaside Park Borough, and one member from each of the remaining school districts of the Boroughs of Seaside Heights, Island Heights and Ocean Gate. This apportionment continued until the results of the 1960 federal census were promulgated and became effective in New Jersey on May 6, 1961. N.J.S.A. 52:4-2. It then became necessary for defendant County Superintendent of Schools Whilden to recompute and reapportion the membership of the regional board of education in accordance with N.J.S.A. 18:8-5, which provides:
"The membership of the regional board of education shall be apportioned by the county superintendent or county superintendents of schools among the several school districts uniting to create a regional school district as nearly as may be according to the number of their inhabitants as shown by the last Federal census officially promulgated in this State, but each constituent school district shall have at least 1 member on the regional board of education. The membership as apportioned shall continue to represent the respective constituent school districts on the regional board of education until changed by reapportionment by the county superintendent or county superintendents of schools of the county or counties in which any part of the regional school district is situated. Such reapportionment shall be made immediately succeeding the official promulgation in
this State of each subsequent Federal census or as otherwise required by section 18:5-3 of this Title. Notwithstanding any such reapportionment, the members of the regional board of education, as theretofore apportioned among the constituent school districts, shall continue in office for the terms for which they were elected or appointed, and provision shall be made for election of their successors only to the extent necessary to provide, for each constituent school district, the representation in membership on the regional board of education to which such school district is entitled by reason of any such reapportionment. If by reason of any such reapportionment a constituent school district becomes entitled to increased representation in membership on the regional board of education, such additional members shall be elected from such school district at the next annual regional school district election."
On December 26, 1961 defendant county superintendent of schools announced the reapportionment required under N.J.S.A. 18:8-5. The 1960 federal census figures for the member districts of the Central Regional School District, the original apportionment, and the December 26, 1961 apportionment, follow:
Municipality Population Apportionment Apportionment
Island Heights Boro. 1,150 2 1
Seaside Park Boro. 1,054 1 1
Seaside Heights Boro. 954 1 1
N.J.S.A. 18:7-25 requires that all nominating petitions of candidates for election to a board of education shall be filed with the school board on or before the 40th day preceding the school election date. Although R.S. 18:8-8 formerly called for the election of regional board members on the first Tuesday in February, the section as last amended by L. 1955, c. 159, § 7, eliminates mention of that date. However, section 9 of the 1955 act, now N.J.S.A. 18:8-16, fixes the annual regional school district election as the first Tuesday in February. (We note that R.S. 18:7-14, relating
generally to school districts in townships and boroughs, fixes the second Tuesday in February for the election. However, N.J.S.A. 18:8-16 is a much later act and deals specifically with regional boards of education. The filing date for the election in this case was therefore December 28, 1961.)
Plaintiff John C. Parker has been a member of the regional board of education, serving as one of the Lacey Township representatives. His present term of office expires on the first Monday following the forthcoming school board election. N.J.S.A. 18:8-8. Desirous of reelection to the board, he presented his nomination petition to defendant Elizabeth DeCamp, school board secretary, seeking a position on the ballot at the February school board election. She refused to accept it, although it is conceded that the petition is in all respects proper and filed within time.
Plaintiffs contend that the reapportionment method employed by the county superintendent of schools is arbitrary, capricious and unauthorized under N.J.S.A. 18:8-5. They insist that the proper and most equitable method for determining the representation which each of the member school districts shall have on the regional board of education is the so-called method of equal proportions. By this method each municipality would be assigned one member initially, as called for by N.J.S.A. 18:8-5, and the remaining three members allotted so that Berkeley Township would be entitled to a total of three members and Lacey Township to two. It is plaintiffs' claim that as a result of defendants' actions Lacey Township will be deprived of its proper representation on the regional board of education, and plaintiff Parker deprived of his right to stand as candidate for re-election to the board.
Plaintiffs readily agree that N.J.S.A. 18:8-5 does not by its terms establish any particular formula or method to be used in reapportioning membership on the regional board.
The only statutory directive is that such membership be apportioned "as nearly as may be" according to the population of each member school district as shown by the latest federal census figures, with the single limitation that each district shall have at least one member on the regional board. Under the statutory directive, say plaintiffs, the county superintendent of schools must use that method of apportionment which the dictates of common sense and justice require in order to assure as equitable a representation as possible. They charge that the method defendant county superintendent has used "patently" does not comply with that requirement.
The method adopted by defendant Whilden is commonly known as the Vinton method. This method is based upon a fixed ratio and operates ...