For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J. Francis, J. (concurring in result). Jacobs, J., joins in this concurrence. Haneman, J. (concurring in result). Jacobs, Francis and Haneman, JJ., concurring in result.
This appeal is from a judgment of the Superior Court, Law Division, (1) ordering the Board of Education of the Westwood Consolidated School District (herein Board) to erect a senior high school and (2) declaring invalid a resolution of the Board directing its attorney to prepare a legislative bill for the deconsolidation of the district. We certified the matter before the Appellate Division acted upon it.
The controversy has a long history. The school district was created in 1951, upon elections held in the Borough of Westwood (herein Borough) and Washington Township (herein Township). N.J.S.A. 18:5-17.1 et seq. Within a few years discontent arose in the Borough. The reason was the rapid increase in the population of the Township, which, the dissidents felt, led to a greater tax burden than would be theirs if the union were dissolved.
There being no statutory authorization for deconsolidation, the governing body of the Borough sought to persuade the Legislature to permit it. In September 1958 the Borough passed a resolution to submit to its voters the question, "Should any action be considered to effect a deconsolidation * * *?" The submission of the question was enjoined, the Appellate Division holding that since the governing body of the Borough had no power to legislate in this area, it could not seek an advisory referendum under N.J.S.A. 19:37-1, which permits a municipality thus "to ascertain the sentiment of the legal voters * * * upon any question or policy pertaining to the government or internal affairs thereof." Botkin v. Westwood, 52 N.J. Super. 416 (1958), appeal dismissed, 28 N.J. 218 (1958).
The need to expand school facilities was clear. After several studies, the Board adopted proposals (1) to build a senior high school and (2) to build an elementary school, both in the Township. The cost was to be financed by a bond issue. By reason of the debt limitations of N.J.S.A. 18:5-84, the consents of the State Commissioner of Education
and of the Local Government Board had to be obtained, N.J.S.A. 18:5-86, prior to the submission of the proposals to the voters of the school district. The required consents were given. On December 9, 1959 the referendum was carried by a vote of 2,189 to 1,960. In the Township the vote was 1,345 to 117 for the proposals, while in the Borough the vote was 844 to 1,843 against. Thereupon taxpayers of the Borough appealed without success from the consents given by the State Commissioner of Education and the Local Government Board. Schinck v. Board of Education of the Westwood Consolidated School District, 60 N.J. Super. 448 (App. Div. 1960).
The membership of the school board consisted of eight elected in the Borough and one in the Township, the distribution being based upon the census of 1950. Despite the preponderant representation from the Borough, the Board had determined the welfare of the school district required the improvements embodied in the proposals thus supported by the referendum vote. But in February 1960, while Schinck was pending, there was an election in the Borough for four seats upon the Board. Candidates who ran on a platform for deconsolidation and a pledge to retain the senior high school in the Borough prevailed by a vote of 2 to 1. A majority of the Board took its cue from these returns. It became plain that the Board would not execute the proposals approved by the referendum.
The Board asked the Senator and Assemblymen from Bergen County to sponsor legislation for deconsolidation, and when an Assemblyman requested a suggested bill, the Board on April 13, 1960, by a vote of 7 to 1, adopted a resolution directing its attorney to prepare a measure. Meanwhile, citizens having complained to the State Commissioner of Education of the Board's failure to proceed, he advised the Board by letter of April 7, 1960 that he would investigate the delay. At its meeting of April 13, at which the Board adopted the resolution just referred to, the Board, by a vote of 7 to 1, authorized a letter to
the State Commissioner summing up the Board's position in these words:
"So that the Commissioner will be aided in his investigation we should like to state that the majority of the Board have individually stated that they do not intend to move the High School from Westwood. Should this be what is disturbing the Commissioner and some of the residents of this district, we would like to state that the candidates recently elected to office in February ran on a ticket advocating deconsolidation of the district and promising that they would not allow the high school to be removed from Westwood. In furtherance of the promises, this Board has recently written a letter to our State Senator and Assembly requesting their aid in introducing a bill permitting deconsolidation. The Board's action was supported by the 2 to 1 vote given the recently elected candidates running on such platform. Should the Commissioner question the action taken by the majority members of this Board, we quote the following from the case of Botkin v. Westwood, 52 N.J. Super. 416 which states at page 432, 'That segment of the Borough's population favoring deconsolidation is not without proper means to raise the question and have it determined. As is usual in a representative form of government, candidates for the consolidated district board of Education can run for office on that issue and if there is ultimately elected a majority of the board favoring such action, the Board can take steps to attempt to secure legislation or otherwise resolve the problem fairly and in an appropriate manner. It will thereby be considered by the body to which the law has committed such matters. In the meantime, local sentiment can undoubtedly be ascertained by interested civic groups or organizations through postal questionnaire or similar means, if such an expression is thought desirable.'"
We will later comment upon the Board's reference to Botkin v. Westwood.
The State Commissioner dispatched his staff to the school district, and on June 28, 1960 he sent the Board a copy of the report of the study. The report concluded that the school district should "proceed immediately to carry out the program as approved by the voters for the expansion of the educational facilities."
The Board nonetheless declined to build the new senior high school. The present suit, to compel it to do so, was started in August 1960. On November 21, 1960 the Board engaged an educational consultant, Dr. William K. Wilson, to make a study, but under a specific direction which would
fulfill the Board's determination to keep the senior high school in the Borough. Dr. Wilson recommended a program on the basis of this restriction, although he conceded his recommendations would be different if he had had a free hand.
At the trial of the present case, it appeared that the Board had sought to place the Wilson plan before the State Commissioner of Education who however declined to consider it because of the pendency of this suit. In an effort to conclude the controversy, the trial court suggested the new plan be presented to the Commissioner under an agreement that if he disapproved it, the Board would promptly execute the proposals adopted at the referendum. The suggestion was accepted, with however the proviso that the trial court would review an adverse ruling by the Commissioner if the Board should charge it to be arbitrary.
The Board then adopted a resolution proposing to renovate the existing high school in the Borough, to acquire lands adjacent to its site, and to erect a junior high school and an administration building in the Township. This new proposal, based on the Wilson report, was submitted to the Commissioner.
The Commissioner held a hearing. He disapproved the new plan, concluding it did not meet the condition in N.J.S.A. 18:5-86(c) that "there is no alternative method of providing such new educational facilities which would be more economical." The Commissioner concluded the proposed use of the existing high school lacked flexibility for future development; that the cost of rehabilitating the high school, part of which was about 50 years old, was excessive and uneconomical in view of the limitations upon its use for a modern senior-high-school educational program; that the proposed plan was basically concerned with housing, as such, rather than the quality of the educational program; that while there might be some immediate cash saving, the plan did not provide "an efficient long-range flexible economical solution to your secondary school housing problem";
and hence the plan was not the most economical method of providing new educational facilities.
The trial was then resumed. The Board asked the trial court to review the Commissioner's action on the ground that it was arbitrary. The court did review it and found the challenge was not sustained.
Upon the conclusion of the case, the court held the Board was arbitrary in its refusal to execute the program approved by the referendum and ordered the Board to proceed with it. With respect to the other issue in the case, the validity of the resolution directing the attorney for the Board to prepare a legislative bill for deconsolidation, the court found the Board exceeded its power.
The present Constitution (Art. VIII, § IV, par. 1) directs, as did its predecessor (Art. IV, § VII, par. 6), that:
"The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years."
Pursuant to this mandate, the Legislature prescribed a comprehensive scheme whereby such education would be furnished by boards of education within their respective school districts. R.S. 18:11-1 commands that each school district "shall provide suitable school facilities and accommodations for all ...