For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[51 NJ Page 293] The judgment is affirmed for the reasons expressed in the following portion of the opinion of Judge Simmill in the Law Division:
"This is an action in lieu of prerogative writ brought by the Borough of Matawan challenging defendants' interpretation of N.J.S.A. 18:8-17 (3) prior to its amendment in 1965, and challenging the constitutionality of N.J.S.A. 18:8-26. Both sides now move for summary judgment. Plaintiff seeks both a declaration that the State Commissioner of Education and the Monmouth County Board of Taxation are acting in violation of N.J.S.A. 18:8-17 (3) and a read-justment of the apportioned taxes between the Borough and the Township of Matawan. It is argued that because of this alleged illegal action plaintiff has been assessed for more than its share of taxes for the support of the regional school systems and, correspondingly, defendant, Township of Matawan, has been assessed for less than its share. Moreover, it is contended that the act by which regional school districts are created, N.J.S.A. 18:8-26, is unconstitutional; hence the regional school district in question is illegal and void.
"The Matawan Regional School District was created in 1961 by special election pursuant to N.J.S.A. 18:8-26 and consists of two municipalities, the Borough of Matawan and the Township of Matawan. The voters also determined that the revenue to be raised for the regional school district was to be apportioned upon the basis of average daily enrollment (hereafter referred to as ADE) of pupils from the constituent municipalities during the preceding year. The figure is obtained by dividing the number of days the school is open into the total days present and absent.
"It is of importance to note that the school year begins on July 1 and terminates on June 30 of the following calendar year. The chronological sequence of events begins with an election in February, held pursuant to N.J.S.A. 18:8-16, in which the voters are asked to approve the budget for the next school year beginning on July 1. After approval by the electorate, the amount is certified by the school district to the Monmouth County Board of Taxation on or before March 1 of each year in accordance with N.J.S.A. 54:4-45. The County Board of Taxation must apportion the figures
among the constituent municipalities; such apportionment in this case being based on the ADE of each constituent. All assessments must be filed by April 10, N.J.S.A. 54:4-52. The ADE figure, so critical to ascertaining apportionment figures, is supplied to the Board in March by the State Commission of Education.
"The ADE figure submitted by the Commissioner is the crux of this case. Because the figure is submitted in March of a school year not yet complete, the figure by necessity represents the ADE of the school year ending on the preceding June 30. Quite obviously in March, the school year in progress is not yet complete and the ADE figure for it is unavailable. For convenience and clarity the Court will refer to the measuring years as one, two and three. Year one represents the completed school year from which the Commissioner has derived the ADE. Year two represents the year in which the apportionment is made and year three represents the year for which the apportionment is made.
"Plaintiff has demonstrated that since 1961 the Township has been growing at a faster rate than the Borough. Thus, the argument is presented that according to the terms of N.J.S.A. 18:8-17 (3), the year two ADE figure should be used in order to more accurately reflect the actual enrollment of each constituent and, more important, to more equally distribute the burden of education costs, year two being the statutorily authorized 'preceding year.' Further plaintiff argues the fact that the ADE figures for year two are not available in March is of no consequence because they do subsequently become available in July or August and an adjustment could be made at that time. The Court is now called upon to determine whether the 'preceding year' standard established in N.J.S.A. 18:8-17 (3) has as its reference point, year two, the year in which the apportionment is determined, or year three, the year for which the apportionment is used.
"The statute in question was amended in 1965 and now provides that the apportionment shall be based on the number
of pupils enrolled on the last day of September of 'current school year.' N.J.S.A. 18:8-17 (3) (1965). Thus the problem posed in the instant case has been removed prospectively.
"The defendants urge that plaintiff has failed to exhaust its administrative remedies and that, therefore, the present action should be dismissed. It is their contention that plaintiff must first either appeal to the Division of Tax Appeals as provided by N.J.S.A. 54:2-35 or to the Commissioner of Education as proved by N.J.S.A. 18:3-14 and N.J.S.A. 18:3-15. Under the former statute the Division of Tax Appeals is authorized to hear an appeal of any action or determination of a county board of taxation. The latter statute provides an ...