Town Council of Montclair v. Baxter
| Decision Date | 24 February 1908 |
| Citation | 68 A. 794,76 N.J.L. 68 |
| Parties | TOWN COUNCIL OF MONTCLAIR v. BAXTER, State Superintendent. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Certiorari by Charles J. Baxter, State Superintendent, against the town council of Montclair, to review an action of such council. Writ dismissed.
Argued November term, 1907, before SWAYZE and TRENCHARD, JJ.
Robert M. Boyd, Jr., for prosecutor. Charles H. Hartshorne (Hartshorne, Insley & Leake), for the Board of Education. Robert H. McCarter, Atty. Gen., for the State Superintendent of Public Instruction.
The town council of Montclair refused to appropriate $197,500, which the Board of School Estimate is supposed to have fixed and determined as the amount necessary for the purchase of land and building of a new grammar school. The State Superintendent of Public Instruction decided that this refusal was erroneous, and a violation of section 14 of the school law. P. L. 1903, 2d Sp. Sess. p. 8. Thereupon the writ of certiorari was allowed.
The State Superintendent is clothed with the authority to decide all controversies and disputes that shall arise under the school laws, subject to appeal to the State Board of Education. P. L. 1903, 2d Sp. Sess. p. 7, § 10. We have held that the prerogative writs of the state should not be awarded until the remedies provided by the school law have been exhausted. Stockton v. Board of Education, 72 N. J. Law, 80, 59 Atl. 1061. If this controversy arose under the school laws, the writ was prematurely allowed, since there had been no appeal to the State Board of Education. This question was argued as if its solution depended upon whether it was mandatory upon the council under section 76 (page 28) of the act to appropriate the amount fixed and determined by the Board of School Estimate, and it is this question only which we are now called upon to decide.
We think section 76 is mandatory in its terms. The fact that it uses the word "may" instead of "shall" is, of course, not conclusive. That the word "shall" is used in section 75 (page 27), which provides for current expenses, and the word "may" in section 76, which provides for new schoolhouses, would be a persuasive argument against giving a mandatory force to section 76, if there were nothing to explain the change of words. There is, however, an apparent reason for the change. Money for current expenses is properly required to be included in the annual budget and raised by taxation; but an option is given to the council to raise money for the extraordinary expense of new buildings, either by including the sum in the annual budget or borrowing the amount by means of an issue of bonds. This alternative makes necessary the use of...
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