Plaintiffs seek an adjudication that N.J.S.A. 18:9-1 et seq., the legislation creating the State Federation of District Boards of Education (State Federation) and prescribing its functions, is unconstitutional. Alternatively, they urge that if the legislation is constitutional, the State Federation be enjoined from engaging in activities deemed ultra vires. Defendant has moved for summary judgment. Although plaintiffs filed no such cross-motion, it was stipulated that the matter be considered before the court as on cross-motions for summary judgment. The parties agree that there are no factual issues.
The State Federation is a creature of the Legislature, N.J.S.A. 18:9-1 et seq. Pursuant to N.J.S.A. 18:9-2 each district board of education selects annually one of its members as a delegate to the State Federation. N.J.S.A. 18:9-3 provides that the State Federation
"* * * may investigate such subjects relating to education in its various branches as it may think proper, and it shall encourage and aid all movements for the improvement of the educational affairs of this state." (Emphasis supplied)
Plaintiffs contend that the statute is unconstitutional as being violative of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. It is urged that the organization of the State Federation violates the one man-one vote principle enunciated in
Reynolds v. Sims, 377 U.S. 533, 537, 84 S. Ct. 1362, 12 L. Ed. 2 d 506 (1964), and in Jackman v. Bodine, 43 N.J. 453 (1964). Plaintiffs argue that since each district board of education is entitled to only one delegate to the State Federation, the citizens of the larger municipalities are being deprived of equal protection of the laws since the voice of the delegates from smaller communities is equal to that of the delegates from the larger communities.
Although plaintiffs' standing to sue was not raised as an issue in this case, the court notes that they lack such standing. The decision in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2 d 663 (1962), to the effect that members of the electorate have standing to challenge the constitutionality of legislative apportionment, is not apposite in the instant case, basically for two reasons. Firstly, the court in Baker was concerned with the apportionment of a legislative body and specifically held, inter alia, that a voter in a more populated voting district had standing to challenge legislation malapportioning the state legislature since his vote was diluted, thereby denying him equal protection of the laws. As hereinafter observed, the instant case does not at all concern the apportionment of a legislative body.
Secondly, the court in Baker determined that plaintiffs had suffered a direct and substantial harm. Such a finding is absent in the present case. It is axiomatic that one who challenges the constitutional validity of a statute must suffer or be threatened with direct and substantial injury as a consequence of the enforcement of the statute. Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258 (1958); Koons v. Board of Comm'rs of Atlantic City, 134 N.J.L. 329, 338 (Sup. Ct. 1946), affirmed 135 N.J.L. 204 (E. & A. 1947); Bd. of Education of Mountain Lakes v. Maas, 56 N.J. Super. 245 (App. Div. 1959), affirmed 31 N.J. 537 (1960), certiorari denied 363 U.S. 843, 80 S. Ct. 1613, 4 L. Ed. 2 d 1727 (1960). The individual plaintiffs' basis of direct and substantial harm lies in the allegation in his complaint that he is a New Jersey taxpayer residing in the City of Newark. The
contention is that since the State Federation is supported by public tax moneys, said moneys being derived from annual dues which defendant has the power to assess upon all of the district boards of education, the individual plaintiffs are harmed by the purported unconstitutional composition of the State Federation. Plaintiffs' theory is untenable. Reference is made to the decision in Doremus v. Board of Education, 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (1952). There plaintiffs were taxpayers seeking to invalidate, as a violation of the First Amendment, a New Jersey statute which provided for Bible reading in public schools. They urged that they had standing because of their status as taxpayers, alleging that the schools were maintained by public funds. The United States Supreme Court decided that plaintiffs' status as taxpayers was not sufficient to give them standing to sue. The court stated:
"* * * There is no allegation that this activity is supported by any separate tax or paid from any particular appropriation or that it adds any sum whatever to the cost of conducting the school. No information is given as to what kind of taxes are paid by appellants and there is no averment that Bible reading increases any tax they do ...