Bry-Nildsen, J.c.c. Temporarily Assigned.
[138 NJSuper Page 369] Plaintiff Board of Education of the Town of Belvidere, New Jersey (a Type II district not having a board of estimate), hereinafter "the board," instituted this action pursuant to the Uniform Declaratory Judgments Act, N.J.S.A. 2A:16-50 et seq. seeking a construction of N.J.S.A. 18A:14-3 and an adjudication of its obligations thereunder.
The matter is submitted for determination as an issue of law. There is no dispute concerning the facts which, briefly, are as follows:
In the discharge of its fundamental duty to provide in its district "suitable educational facilities including proper school buildings and furniture and equipment * * *," N.J.S.A. 18A:33-1 et seq. , after extensive preliminary studies the board found a need for additional school building facilities. It then developed a proposal to meet such needs, obtained the necessary approvals of such proposal and, on December 10, 1974, at a special election of the legal voters of Belvidere in accordance with the resolution of the board, the proposal authorizing the construction and furnishing of new school building facilities and providing for the issuance of bonds of the district to an amount not exceeding $4,500,000 to finance the cost thereof was placed upon the ballot. The proposition was approved by a vote of 473 in favor and 281 against. The amount of debt thereby authorized used up the total $832,275.68 borrowing margin of Belvidere, previously available for other improvements, and raised the net debt to $2,780,522.11 beyond such margin. The effect of such debt and the amount by which it exceeded the normal borrowing margin of the municipality was specifically declared in the resolution, notice and upon the ballot. N.J.S.A. 18A:24-24.
On June 20, 1975 the Attorney General of New Jersey approved the legality of the proceedings, pursuant to N.J.S.A. 18A:24-30.
On July 18, 1975, relying upon the December 10, 1974 referendum, the board borrowed $85,000 from the First National Bank of Belvidere, for which it gave its bond anticipation note in that amount on that date, and has used the proceeds of such loan for architectural fees and other legitimate expenses incidental to the proposal. It desires to proceed to completion of the project, being about ready to let the contract out for bids.
On September 9, 1975 defendant Margaret E. Bosco and Bert Card, as co-chairpersons of an organization designating
itself as "Concerned Citizens for the Community of Belvidere, New Jersey," presented to the board a "Petition for Referendum" bearing the signatures of some 382 persons purporting to comprise about 40% of the total legal voters of Belvidere qualified to vote in school district elections. In effect, the petition requests the board to adopt a resolution calling for a "Special Election and to submit to the electorate a proposal calling for the repeal or rescission of the referendum of December 10, 1974."
The petition does not cite any specific statute, stating only: "We hereby submit this Petition for Referendum in accordance with the Revised Statutes of New Jersey." Defense counsel in his brief and at oral argument urged that N.J.S.A. 18A:9-6 mandates that since the petition was signed by more than 40% of the qualified voters, the board must place the proposal before the voters at the next annual election or a special election called for the purpose.
The board contends that it has no legal power or authority to accede to defendants' request even were it desirous of doing so, which it has made abundantly clear it is not. It contends that once the matter has been approved by the electorate and its legal regularity certified by the Attorney General, it has no power whatsoever to re-open the matter. The board denies that N.J.S.A. 18A:9-6 applies, but it notes the language of N.J.S.A. 18A:14-3, which it also contends to be inapposite, but regards as having raised a justiciable question.
Defendants filed no answer to plaintiff's complaint nor did they set forth, by affidavit or otherwise, any reasons for the action they petitioned the board to take. One might reasonably assume the reason as being economic rather than educational since there is abroad today a growing fear of inflation, depression and unemployment, not to mention the increasing uncertainty concerning the municipal bond market and the interest rates which might be bid for the Board's bonds. Belvidere is a small community, with little industry and no immediate prospect for any substantial increase in
ratables. $4,500,000 would appear to be a relatively large debt for a small community, and its amortization with interest promises a significant annual debt service budget item. When taken along with the current trend of increasing faculty salaries, pensions and other benefits, and the constantly increasing cost of supplies, heating fuel and maintenance, the concern of the people is easily understood. While in December 1974 the same trends were clearly present, many thoughtful people are becoming increasingly insistent upon more conservative governmental spending. However, no economic emergency or major change in conditions peculiar to Belvidere has been brought to the court's attention.
The main thrust of defendants' position is that as members of the electorate they are entitled, as of right, to initiate propositions for submission to the voters of the school district, and that the board is required to conduct a special election for such purpose. Defendants in their brief and in oral argument repeatedly stressed the "democratic right of the people to settle such issues by the ballot," and their appeal to this court is to halt the erosion of the "democratic system" and to preserve the "Constitutional right of the people" to vote on issues of local concern. They assert in general terms that "the voters of Belvidere have the right to decide for themselves whether or not at this point in time they want to have the construction program continued." Moreover, the argument continues, if the people had the right to approve the proposal on December 10, 1974, they have a right to alter the program or to rescind it altogether at this time.
The precise question here presented does not appear to have been treated in any reported opinion in this State, nor have counsel cited a case in point from any other jurisdiction.
The point is glossed over by defendants and treated only in passing by plaintiff, but for the sake of a resolution of the fundamental issue presented, the court assumes that the rights of the bank, the architect and any others who may have ...