Board of Ed. of City of Hackensack v. City of Hackensack, A--66

• Decision Date: 01 November 1960
• Docket Number: No. A--66,A--66
• Citation: 63 N.J.Super. 560,165 A.2d 33
• Parties: BOARD OF EDUCATION OF the CITY OF HACKENSACK in the County of Bergen et al., Plaintiffs-Appellants, v. CITY OF HACKENSACK in the County of Bergen et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 560

63 N.J.Super. 560

165 A.2d 33

BOARD OF EDUCATION OF the CITY OF HACKENSACK in the County of Bergen et al., Plaintiffs-Appellants, v. CITY OF HACKENSACK in the County of Bergen et al Defendants-Respondents.

No. A--66.

Superior Court of New Jersey Appellate Division.

Argued Oct. 31, 1960.

Decided Nov. 1, 1960.

John F. Butler, Hackensack, argued the cause for plaintiffs-appellants.

John W. Leyden, Jr., Hackensack, argued the cause for defendants-respondents.

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiffs Board of Education of the City of Hackensack and two individual taxpayers of the municipality challenge the validity of a resolution of the Mayor and Council of the City of Hackensack providing for the placement on the official ballot to be used at the next general election and to be voted upon by the voters of the city the following proposition:

'Are you in favor of spending $2,586,579.00, excluding equipment, based on an estimate published by the Board of Education in June, 1960, for the conversion of the State Street Junior High School into a consolidated Central Junior High School?'

The Bergen County Clerk has arranged to place this question on the ballot to be voted upon by the voters of Hackensack at the general election of November 8, 1960.

The Law Division, Bergen County, held the resolution lawful, and plaintiffs appeal.

The action of the governing body was taken pursuant to N.J.S.A. 19:37--1, which reads as follows:

'When the governing body of any municipality or of any county desires to ascertain the sentiment of the legal voters of the municipality or county upon any question or policy pertaining to the government or internal affairs thereof, and there is no other statute by which the sentiment can be ascertained by the submission of such question to a vote of the electors in the municipality or county at any election to be held therein, the governing body may adopt at any regular meeting an ordinance or a resolution requesting the clerk of the county to print upon the official ballots to be used at the next ensuing general election a certain proposition to be formulated and expressed in the ordinance or resolution in concise form. Such request shall be filed with the clerk of the county not later than forty days previous to the election.'

The result of such a referendum is not binding on the governing body. R.S. 19:37--4, N.J.S.A.

The assault upon the proposed referendum is made upon the following grounds: (1) the resolution was required to be adopted at a regular meeting of the governing body, but in fact was adopted at a special meeting September 26, 1960; (2) the subjct of the referendum is an improper intrusion by the governing body into school affairs; it is not a matter pertaining to the 'government or internal affairs' of the municipality, within the interpretation of the statute by this court in Botkin v. Mayor and Borough Council of Borough of Westwood, 52 N.J.Super. 416, 432, 145 A.2d 618 (App.Div.1958), appeal dismissed on other grounds 28 N.J. 218, 146 A.2d 121 (1958); and see Santoro v. Mayor and Council of Borough of South Plainfield, 57 N.J.Super. 498, 155 A.2d 23 (App.Div.1959), for the reason that the problem involved in the proposition was not then before the governing body nor within its jurisdiction; (3) there are specific statutes available by which the sentiment of the voters on the question can be ascertained by referendum; and (4) the phraseology of the proposition is false and misleading.

The pertinent statutory and factual background is as follows:

The Hackensack school district is what is known as a 'Chapter 6' district. R.S. 18:6--1 et seq., N.J.S.A. The here significant characteristic of such a district is that general responsibility for its fiscal affairs is shared between an appointive Board of Education and a Board of School Estimate comprised of some members both of the Board of Education (here, two) and of the governing body of the municipality (here, three, including the Mayor). When the Board of Education decides it is necessary to raise funds for land or buildings it prepares and delivers to the members of the Board of School Estimate a statement of the amount estimated as necessary therefor, R.S. 18:6--59, N.J.S.A. The latter agency is directed ('shall') to 'fix and determine the amount necessary therefor' and to certify such amount to the Board of Education and to the governing body, R.S. 18:6--60, N.J.S.A. The statute then provides that the governing body 'shall,' subject to N.J.S.A. 18:6--62, either: (a) appropriate the sum so fixed in the same manner as appropriations generally are made or (b) by ordinance appropriate the amount of money so fixed and borrow the requisite funds through the issuance of bonds 'in accordance with the provisions of article 18 of chapter 5 of this Title (§ 18:5--84 Et seq.)' and under specified regulations not here pertinent. N.J.S.A. 18:6--61. The moneys appropriated or the proceeds of the bonds are directed to be paid to the custodian of school funds of the school district for disbursement on warrant of the Board of Education.

The only direct qualification upon the obligation of the governing body to raise the needed money by one or the other of the two specified methods is N.J.S.A. 18:6--62, which provides that no appropriation pursuant to N.J.S.A. 18:6--61 shall be made, which, if added to the net school debt, exceeds 3% Of the average assessed valuations of property, unless the governing body assents thereto. Subject to this proviso, the duty of the governing body to raise the money is mandatory. Town Council of Montclair v. Baxter, 76 N.J.L. 68, 68 A. 794 (Sup.Ct.1908); County of Monmouth v. Board of Com'rs of Long Branch, 2 N.J.Misc. 150 (Sup.Ct.1924). It is conceded by the parties that an appropriation of anything like two and a half million dollars for school purposes would bring into operation the condition specified by N.J.S.A. 18:6--62 and thereby, in effect, give the Mayor and Council of Hackensack an absolute veto over such an expenditure.

An understanding of the full scope of the issues herein requires reference also to N.J.S.A. 18:5--84 et seq., which further regulate issuance of school bonds, and are applicable, by reference, to the duty of a Chapter 6 municipal governing body under N.J.S.A. 18:6--61, as noted above.

A Chapter 6 'certified school district' (which Hackensack is) may not issue bonds increasing the net school debt to more than 8% Of average assessed valuations (N.J.S.A. 18:5--84, subd. b.) except by ordinance passed by a two-thirds vote of the governing body, or by a majority vote plus a favorable popular referendum. N.J.S.A. 18:5--85. (Other expedients for by-passing N.J.S.A. 18:5--84 are available under N.J.S.A. 18:5--86 but are not here pertinent.) Whenever N.J.S.A. 18:5--85 is resorted to, the percentage of net debt as stated in the supplemental debt statement of the municipality on file must not exceed 7%. Ibid. The parties have stipulated that a bond issue of the amount mentioned in the proposition here at issue would be interdicted by the 8% Criterion fixed in N.J.S.A. 18:5--84, subd. b. mentioned above, but if ordained under authority of N.J.S.A. 18:5--85 would not offend the 7% Limitation specified therein in reference to the supplemental debt statement. It follows that the latter statutory section is available to the governing body of Hackensack as authorization should it choose, when and if the question is ripe for its action, to adopt an ordinance to issue the indicated amount of bonds for the stated purpose.

It remains but to cite, in respect to pertiment legislative background, N.J.S.A. 18:6--63, which in substance provides that, whether or not otherwise required, the governing body may at its option call for a popular referendum at any general, special or muncipal election confirming an ordinance authorizing the issuance of bonds under N.J.S.A. 18:5--85.

In June 1960 the Board of Education published and distributed throughout the city a pamphlet describing a proposed plan endorsed by the Board for the establishment of a single junior high school in the city pursuant to the recommendations of a Citizens Advisory Committee. The pamphlet gave notice of a public meeting June 20, 1960 at which views of the public would be solicited and consideration given by the Board as to which of two proposed sites should be used for the school. A sketch and summary of the cost items on each site basis was set out. Under the heading: 'Proposed Addition to State Street Junior High School' (emphasis added) the 'estimated cost figures' are shown to aggregate $2,586,579, of which $1,911,000 is allocated to 'Building: 91,000 sq. ft. * * *' and $131,500 to 'Alterations to Existing Buildings.' Land acquisition was estimated at $276,579.

On September 12, 1960 the Board of Education duly resolved that it was necessary to acquire certain land in the vicinity of the State Street School for school purposes and that $295,000 was the amount required. On September 20, 1960 the Board wrote the Mayor and Council that it intended to expand the State Street School and requested a meeting of the Board of School Estimate on October 17, 1960 to fix and determine the amount needed for the land, pursuant to statute.

On September 26, 1960, at a special meeting of the Mayor and Council broadly publicized and attended by members of the Board of Education, school system officials and large numbers of the public, the governing body adopted the referendum resolution here in question.

I.

By the time the governing body decided to act on the referendum it was too late to comply with the statutory directives of 40 days' notice to the county clerk and action at a regular meeting since such meetings are held only on the first and third Tuesdays of each month. Therefore action was taken at a special meeting. We have considered...