In lieu of prerogative writ.
Brown, G.h., J.c.c. (temporarily assigned).
The plaintiffs, who are citizens and taxpayers of the City of Englewood, challenge the validity of the governing body's action in seeking to place on the official ballot for the coming general election the following proposition:
"Are you in favor of transferring certain elementary school grades from their present schools into a single school for such grades?"
N.J.S.A. 19:37-1 enables this municipal procedure if the foregoing can be said to be a
"* * * question or policy pertaining to the government or internal affairs [of the municipality] * * *."
This statutory device for ascertaining voter sentiment is so obviously useful to those who are burdened with the duty of promoting the public welfare that a court should interfere only where a misuse is plain. The articulation of citizen opinion is of the essence of democracy.
The principle for judicial guidance was spelled out by the Appellate Division in Santoro v. South Plainfield , 57 N.J. Super. 498 (1959):
"* * * referendum questions must relate to action which the municipality has the authority to take * * *. If the municipality has no power to act it has no right to seek the voters' advice whether to do so." (at p. 501.)
The plaintiffs contend that in this instance the principle is violated. They say that "The assignment of students to one school or another within the City of Englewood school system is purely the responsibility of the Board of Education."
There can be no argument that the desirability of student transfers between schools and any method for accomplishing the same are policy matters exclusively within the board of education province. But the fact that only board of education initiative can effect such action does not necessarily mean that the governing body has no proper concern in the area.
During the argument on the hearing of this action it was represented as a fact, without contradiction, that the consolidation proposal originated with the board of education. That agency, it was said, referred the matter to the board of ...