Board of Educ. of City of Elizabeth, Union County v. City of Elizabeth, A--40

• Decision Date: 23 November 1953
• Docket Number: No. A--40,A--40
• Parties: BOARD OF EDUCATION OF CITY OF ELIZABETH, UNION COUNTY v. CITY OF ELIZABETH et al.
• Court: New Jersey Supreme Court

Page 589

13 N.J. 589

100 A.2d 745

BOARD OF EDUCATION OF CITY OF ELIZABETH, UNION COUNTY v. CITY OF ELIZABETH et al.

No. A--40.

Supreme Court of New Jersey.

Argued Nov. 2, 1953.

Decided Nov. 23, 1953.

Raymond A. Leahy, Elizabeth, for appellants.

Martin B. O'Connor, Elizabeth, for respondent.

The opinion of the court was delivered by

VANDERBILT, C.J.

This is an appeal by the defendants below from a summary judgment in the Law Division of the Superior Court, which we have certified on our own motion before hearing in the Appellate Division of the Superior Court.

The complaint simply alleges: (1) that on March 25, 1953 the plaintiff board of education decided that it had underestimated in its annual estimate the amount of moneys necessary to run its schools for the current school year; (2) that it delivered to the members of the board of school estimate a statement of the amount of money necessary for that purpose; (3) that on May 29, 1953 the board of school estimate by formal action determined that the additional sum of $127,517 was necessary for the operation of the schools of Elizabeth for the school year July 1, 1952 to June 30, 1953; (4) that it delivered its certificate to the board of education and to the city council; but that (5) the city council failed to pay over the amount of the appropriation to the plaintiff.

Nowhere in the complaint is there any reference to an emergency. An emergency is first mentioned in the preamble to the certificate and resolution of the board of school estimate of May 29, 1953, attached to an affidavit of the secretary and business manager of the plaintiff board of education supporting its motion for summary judgment. Nor is the nature of the emergency discussed in the moving papers.

The answering affidavits of the city are more enlightening. They show that on March 13, 1952 the board of school estimate certified to the city a school budget of $3,852,814.91 for the school year July 1, 1952 to June 30, 1953, above mentioned. Because the requisition exceeded 1 1/2% Of the valuation of the assessable ratables of the city as determined by the county board of taxation for 1952, it was necessary under R.S. 18:6--53, N.J.S.A., for the city to consent to the appropriation, which it did on March 19, 1952. Within two months thereafter, on May 18, 1952, the board of education by resolution decided to increase the salaries of all school employees $200 a year commencing July 1, 1952, the beginning of the school year above mentioned. The resolution recited that 'it is necessary to have an additional or supplemental appropriation to meet the salary increase contemplated,' and to that end it requested the board of school estimate to provide an additional or supplemental appropriation of $190,000. This request the board of school estimate rejected on June 9, 1952. On November 13, 1952 the board of education again requested an additional or supplemental appropriation of $169,725, but this time for the salary increases in the second half of the school year. This request the board of school estimate likewise refused. Nevertheless, in the face of these rejections by the board of school estimate the board of education proceeded pursuant to its resolution of May 18, 1952 to grant all of its employees a $200 a year increase beginning July 1, 1952. The affidavit of the comptroller of the city states

'If it now finds itself short of funds, it is not caused by the fact that it underestimated its requirements in its annual estimate, the amount of money necessary, but solely because it granted the salary increases despite the fact that the Board of School Estimate refused to allow the money for such salary increases.'

These answering affidavits stand uncontradicted.

1. The city contends that the emergency appropriation of $127,517 is not binding on it because it has not consented thereto. It seeks to apply the concluding sentence of R.S. 18:6--53, N.J.S.A.

'No amount in excess of one and one-half per cent of the valuation of the assessable ratables of any municipality as determined by the county board of taxation shall be appropriated except with the concurrence and consent of the governing body expressed by its resolution duly passed.'

to the total of the annual appropriation (prepared pursuant to R.S. 18:6--49 to 53, N.J.S.A.) and the emergency appropriation. This construction is not tenable, however, for not only does the opening sentence of the section apply expressly to annual appropriations under R.S. 18:6--50 and 51, N.J.S.A. but emergency appropriations are dealt with separately in succeeding sections of the law, R.S. 18:6--55 to 57, N.J.S.A., the last of these sections being quite explicit as to the duty of the city:

R.S. 18:6--57. 'Upon receipt of the certificate of the board of school estimate delivered as required by section 18:6--56 of this title, the governing body of the municipality shall immediately appropriate the sum or sums for the purpose or purposes and shall raise such sum or sums in the manner provided by law for the raising of such funds by the municipality in emergencies and the raising of the funds required by such certificate, in such a case, shall be considered an emergency. Upon raising the funds the governing body shall cause the sum or sums to be paid forthwith to the custodian of school funds of the district for such purpose or purposes.'

Not only does the construction contended for by the city fly in the face of the express language of the statute, but it might fatally handicap the board of education in the event of disagreement between the board and the city in the event of an actual emergency.

2. With more cogency the city argues that there was in fact no genuine emergency, the situation having been produced by the act of the board of education itself and hence constituting no emergency at all in fact. In a school case an emergency has been defined as 'a sudden or unexpected occurrence or condition calling for immediate action,' Frank v. Board of Education of Jersey City, 90 N.J.L. 273, 278, 100 A. 211, 213, L.R.A.1917D, 206 (E. & A.1917). The facts of record as herein set forth and even the facts Dehors the record as elicited from counsel for the board of education at the oral argument of the appeal in our effort to get at the true facts of the case do not disclose an emergency in the sense in which the word is customarily used. At the most there was dissatisfaction among the employees of the board of education and talk of a strike by its janitors. On the other hand, the record discloses a persistent effort of the board of education, continued over many months, to force the city to appropriate funds for salary increases of $200 a year to each of its employees. Its efforts began within two months after the concurrence of the city in its annual budget for the year 1952--1953. It first sought $190,000 for such salary increases, beginning July 1, 1952, but this request was denied by the board of school estimate on June 9, 1952. The second request, this time for $169,725 for the same purpose, was made on November 13, 1952, only to be rejected on February 27, 1953. The third request, March 25, 1953, this time for $127,517, was finally acquiesced in by the board of school estimate on May 29, 1953, but meantime the board of education had been paying the salary increases since July 1, 1952. The statute does not contemplate such continuous pressure by the board of education on the board of school estimate and through it on the city. In the orderly conduct of school affairs budget- making should be an annual process except for real emergencies.

3. The board of education, on the contrary, takes the position that the requisition of the board of school estimate is mandatory on the city and that the city may not question the existence of an emergency, and it is on this theory that its complaint is predicated. But it concedes that a taxpayer might question the existence of an emergency as he might any other municipal or administrative action by a proceeding in lieu of Certiorari. The precise question of the finality of a recitation of a fact in the official action of a public body has been passed on in a taxpayer's suit attacking an alleged emergency appropriation, Lyons v. City of Bayonne, 101 N.J.L. 455, at pages 456--457, 130 A. 14, at page 14 (Sup.Ct.1925):

'The contention of the commissioners is that in each instance specified in the resolutions an emergency has arisen; that the resolutions in fact so declare, and that the determination of...