For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Pashman, J.
Plaintiff in this case, the Township of Franklin, challenges the apportionment of seats on the regional school board of the North Hunterdon Regional High School District. Essentially, it argues that the apportionment formula embodied in N.J.S.A. 18A:13-8, as applied to its district, violates the "one-person, one-vote" rule laid down by the United States Supreme Court. See Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964).
Plaintiff commenced this action by filing a notice of appeal to the Appellate Division. R. 2:2-3(a)(2). It named as defendants the North Hunterdon Regional High School, the County School Superintendent and the State Commissioner of Education.*fn1 The suit was immediately challenged by the defendant board on two procedural grounds. The board argued first, that the suit was untimely because no appeal had been filed within 45 days of the Commissioner's order, R. 2:4-1, and second, that the plaintiff had failed to exhaust its administrative remedies before taking the appeal. The Appellate Division agreed and dismissed the appeal without making a decision on the merits. We granted plaintiff's petition for certification, 69 N.J. 74 (1975), and accepted its "Statement in Lieu of Transcript," supplemented by defendants' statement of facts, as the record on appeal.
Defendants' procedural contentions have not been pursued before this Court. Nevertheless, we conclude that
these claims would not bar the Court from rendering a determination on the merits since the issues presented are of public importance and involve substantial constitutional questions. See Jacobs v. State Highway Authority, 54 N.J. 393, 396 (1969); McKenna v. N.J. Highway Authority, 19 N.J. 270, 276 (1955); Holloway v. Pennsauken Tp., 12 N.J. 371, 375 (1953); Nelson v. So. Brunswick Planning Bd., 84 N.J. Super. 265, 275 (App. Div. 1964); Wilbert v. De Camp, 72 N.J. Super. 60, 68 (App. Div. 1962); R. 2:2-3(a)(3). Moreover, we are not faced in this case merely with an administrative regulation, but with the constitutionality of the apportionment statute itself.
Plaintiff argues that the current distribution of seats on the North Hunterdon Regional High School District School Board fails to adequately represent that municipality's population of 2,154.*fn2 It points out that it is represented on the fifteen member board by only one seat, while High Bridge, which has only a slightly higher population, 2,606, is allocated two seats. This results in a maximum deviation from population equality of 50.3% between the two municipalities, with Franklin Township having a variance of
27.2% above the norm and High Bridge having a variance of 23.1% below the norm.*fn3
As will be seen, the problems of apportioning seats on the Hunterdon regional school board while retaining local municipal lines are compounded by the unique physical characteristics of the region in which the Township of Franklin is located. Plaintiff is one of twelve constituent school districts which make up the North Hunterdon Regional High School District.*fn4 Counsel advised us that this is the largest number of constituent municipalities making up any single regional school district in this State, and possibly in the country. Moreover, these component municipalities have relatively small populations which are not equivalent in size; they range from 874 in Glen Gardner to a population of 4665 in Clinton Township. These municipalities, and the 25,412 persons in the district's "apportionment population," are spread over an area of 171.30 square miles.
The present statute was drafted specifically to meet North Hunterdon's apportionment problems. The sponsor's statement to the 1972 amendment to the act indicates that it was designed to deal with the problems of a district involving more than nine municipal members; the only district falling within that category was, and still is, North Hunterdon. Under the pre-existing apportionment formula the voter disparity would have been substantially greater. Although Franklin Township would have had a variance of only 1.7% from the norm, a maximum variance of 179.0% would have existed between Clinton Township and Glen Gardner.
In an affidavit filed on behalf of defendants, Ernest Reock, one of the primary draftsmen of the present apportionment statute, N.J.S.A. 18A:13-8, stated that he had specifically considered the problems of North Hunterdon in arriving at the scheme. He noted that he had been asked to determine whether High Bridge's inclusion in the region would have affected adversely the statutory formula even though it had not yet been formally included in the region at that time. Reock also indicated that he had considered alternatives to the present scheme which would reflect populations in a more representative fashion on the board. Increasing the size of the board was rejected because it would have resulted in an unmanageably large board. Similarly, "at large" elections were ruled out because they failed to take into account local municipal lines.
The present legislation was devised in order to provide the least possible deviation from voter equality while retaining local subdivision boundaries. Thus, in order to arrive at an appropriate apportionment of seats on the board, it utilizes the method of equal proportions,*fn5 a variable board size, and grouping of contiguous municipalities into representative districts. Where representative districts are used, board members are elected at large from within that district. Utilizing this scheme the defendants arrived at the current distribution of seats, which was certified by the County Superintendent on November 6, 1972.*fn6 An election of board members was conducted on February 6, 1973.