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 Hall, J. Schettino, J., concurring in result.
[39 NJ Page 301] The sole question in this case is when the amount to be raised by local taxation for the annual support of the public schools in a Chapter 6 school district must have the concurrence of the governing body of the municipality. The statute, R.S. 18:6-53, provides that the amount determined and certified by the Board of School Estimate as necessary for
this purpose shall be appropriated and raised by the governing body through inclusion in the local tax ordinance, but "[n]o amount in excess of one and one-half per cent of the valuation of the assessable ratables of any municipality as determined by the county board of taxation shall be appropriated except with the concurrence and consent of the governing body expressed by its resolution duly passed." (Emphasis supplied) The answer to the question depends on the meaning of the emphasized language. The Law Division held, 72 N.J. Super. 7 (1962), that it had reference to the total assessments filed with the county board by the local assessor as revised and corrected by the board, N.J.S.A. 54:4-47 (prior to amendment by L. 1960, c. 51) and 54:4-48, rather than, as contended by plaintiffs, to the figure produced by the board's increase of the assessments to equalize them at true value with those of the other taxing districts of the county, R.S. 54:3-17, 18 and 19 (all prior to amendment by L. 1960, c. 51); N.J.S.A. 54:4-49.
The question is entangled in the thicket of numerous statutory limitations or requirements keyed to tax assessments in one form of language or another and designed for varying purposes. Decisions on somewhat similar questions, but involving different situations and different statutory language, have emerged in Township of Maplewood v. Essex County Board of Taxation, 39 N.J. Super. 202 (App. Div. 1956), Township of Berkeley Heights v. Board of Education of Union County Regional High School District No. 1, 23 N.J. 276 (1957) and Essex County Park Commission v. Board of Chosen Freeholders, 58 N.J. Super. 93 (App. Div. 1959), certif. denied 31 N.J. 294 (1960). In the first two cases the figure after equalization was held controlling. In the last one a conclusion was reached comparable to that of the trial judge in the instant case. We are convinced that all three cases were rightly decided on the particular facts, statutory language and underlying purpose. We are further of the view that the rationale of the Park Commission decision is applicable here, resulting in an affirmance. We say this despite
the substantial difference in the statutory language in the instant case, upon which plaintiffs rely in urging that the result should rather be like that in Maplewood and Berkeley Heights. Before giving the reasons for our conclusion, we should spell out with more particularity the exact situation before us.
As has been indicated, the Elizabeth school district is a so-called Chapter 6 district, meaning that it is governed by the provisions of Chapter 6 of the Education law, R.S. 18:6-1 et seq. While it is coterminous with the municipality it serves, N.J.S.A. 18:6-2, as are all school districts in New Jersey, N.J.S.A. 18:7-2, 18:5-17.1 and 18:8-1 (consolidated and regional districts being coterminous with more than one municipality), it is a separate corporate entity, distinct and free from the government of the municipality except to the extent that the Legislature has provided for connection or interdependence. R.S. 18:6-21; N.J.S.A. 18:6-23 and 24; Merrey v. Board of Education of the City of Paterson, 100 N.J.L. 273 (Sup. Ct. 1924); George W. Shaner & Sons v. Board of Education of the City of Millville, 6 N.J. Misc. 671, 142 A. 425 (Sup. Ct. 1928); see Botkin v. Mayor and Borough, etc., Westwood, 52 N.J. Super. 416 (App. Div. 1958), appeal dismissed 28 N.J. 218 (1958); cf. Town Council of Montclair v. Baxter, 76 N.J.L. 68 (Sup. Ct. 1908); Board of Education of Long Branch v. Board of Commissioners of Long Branch, 2 N.J. Misc. 150 (Sup. Ct. 1924); Falcone v. Board of Education of Newark, 17 N.J. Misc. 75, 78, 4 A. 2 d 687 (C.P. 1939); Board of Education of the City of Hackensack v. City of Hackensack, 63 N.J. Super. 560 (App. Div. 1960); Kaveny v. Board of Commissioners of Montclair, 69 N.J. Super. 94 (Law Div. 1961), affirmed 71 N.J. Super. 244 (App. Div. 1962), certif. denied 36 N.J. 597 (1962).
Chapter 6 applies to all city school districts, except ones which choose to be governed by Chapter 7, and to those of any other municipality accepting its provisions. N.J.S.A. 18:6-2. The basic feature distinguishing the two chapters
is the almost complete absence of direct voter participation in school affairs under Chapter 6. Members of the Board of Education are appointed by the mayor or other chief executive officer of the municipality, R.S. 18:6-4, whereas in Chapter 7 districts (as well as in consolidated and regional districts), they are chosen by the electorate at the annual school elections, R.S. 18:7-4. In other than Chapter 6 districts, the yearly appropriations for the running of the schools to be raised by local taxes (levied and collected by the municipal government with all other taxes), as well as authority to raise and expend capital funds for the acquisition of land, the building of schoolhouses and the like, must also have voter approval. R.S. 18:7-78.
In Chapter 6 districts quite a different financial mechanism is prescribed. A Board of School Estimate is provided for, consisting of five members -- two appointed by the Board of Education from among its membership, two members of the governing body selected by it, and the mayor or other chief municipal executive officer. R.S. 18:6-48. With respect to the annual appropriations for current expenses and repairing and furnishing the district schools, the subject of this case, the Board of Education is required to deliver to the Board of School Estimate, by February 1 of each year, its proposed budget of estimated expenses and revenues for the ensuing school year. N.J.S.A. 18:6-49. The latter board is directed to hold a public hearing thereon and, by February 15, "fix and determine the amount of money necessary to be appropriated for the use of the public schools in the district for the ensuing school year" and certify the amount so fixed to the Board of Education and the municipal governing body. N.J.S.A. 18:6-50. The governing body is required to appropriate the amount so certified, without change or other action on its part, by including it in the tax ordinance, Townsend v. State Board of Education, 88 N.J.L. 97 (Sup. Ct. 1915), except that it shall not make the appropriation without its affirmative concurrence and consent if the certified amount exceeds "one and one-half per cent of the valuation
of the assessable ratables * * * as determined by the county board of taxation." R.S. 18:6-53. The legislative scheme as to appointed school boards, is, therefore, to place in a separate, intermediate body, the majority of whose members are elected officials, the determination of the amount to be raised by taxation for current school purposes and, in addition, to give a kind of veto power to the whole municipal governing body when the figure fixed by the intermediate body exceeds a certain amount.
In January 1961 the Elizabeth Board of Education adopted a resolution fixing the basis of teachers' salaries for the ensuing school year and providing for the normal increment plus an additional increase for each teacher and a further adjustment in some cases. It thereafter delivered to the Board of School Estimate its proposed budget for the year calling for a local tax appropriation of $6,408,248.71, which included funds to provide the salary increases mentioned. The Board of Estimate, on February 14, certified to the City Council the sum of $6,308,248.71, the certificate being signed by the mayor and two of the four other members. The ...