WILLIAM J. DURGIN (AND 9 OTHERS), PLAINTIFFS-RESPONDENTS, v. JOHN E. BROWN (AND 6 OTHERS), AND THE BOARD OF EDUCATION OF THE WESTWOOD CONSOLIDATED SCHOOL DISTRICT, DEFENDANTS-APPELLANTS
Supreme Court of New Jersey
Argued February 6, 1962-Decided April 2, 1962
37 N.J. 189
Reversed.
For reversal-Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN-7.
For affirmance-None.
WILLIAM J. DURGIN (AND 9 OTHERS), PLAINTIFFS-RESPONDENTS, v. JOHN E. BROWN (AND 6 OTHERS), AND THE BOARD OF EDUCATION OF THE WESTWOOD CONSOLIDATED SCHOOL DISTRICT, DEFENDANTS-APPELLANTS.
Argued February 6, 1962-Decided April 2, 1962.
Mr. Irving C. Evers argued the cause for plaintiffs-respondents (Mr. Jacob Schneider, attorney).
WEINTRAUB, C. J. This appeal is from a judgment of the Superior Court, Law Division, (1) ordering the Board of Education of the Westwood Consolidated School District (herein Board) to erect a senior high school and (2) declaring invalid a resolution of the Board directing its attorney to prepare a legislative bill for the deconsolidation of the district. We certified the matter before the Appellate Division acted upon it.
The controversy has a long history. The school district was created in 1951, upon elections held in the Borough of Westwood (herein Borough) and Washington Township (herein Township).
There being no statutory authorization for deconsolidation, the governing body of the Borough sought to persuade the Legislature to permit it. In September 1958 the Borough passed a resolution to submit to its voters the question, “Should any action be considered to effect a deconsolidation * * *?” The submission of the question was enjoined, the Appellate Division holding that since the governing body of the Borough had no power to legislate in this area, it could not seek an advisory referendum under
The need to expand school facilities was clear. After several studies, the Board adopted proposals (1) to build a senior high school and (2) to build an elementary school, both in the Township. The cost was to be financed by a bond issue. By reason of the debt limitations of
The membership of the school board consisted of eight elected in the Borough and one in the Township, the distribution being based upon the census of 1950. Despite the preponderant representation from the Borough, the Board had determined the welfare of the school district required the improvements embodied in the proposals thus supported by the referendum vote. But in February 1960, while Schinck was pending, there was an election in the Borough for four seats upon the Board. Candidates who ran on a platform for deconsolidation and a pledge to retain the senior high school in the Borough prevailed by a vote of 2 to 1. A majority of the Board took its cue from these returns. It became plain that the Board would not execute the proposals approved by the referendum.
The Board asked the Senator and Assemblymen from Bergen County to sponsor legislation for deconsolidation, and when an Assemblyman requested a suggested bill, the Board on April 13, 1960, by a vote of 7 to 1, adopted a resolution directing its attorney to prepare a measure. Meanwhile, citizens having complained to the State Commissioner of Education of the Board‘s failure to proceed, he advised the Board by letter of April 7, 1960 that he would investigate the delay. At its meeting of April 13, at which the Board adopted the resolution just referred to, the Board, by a vote of 7 to 1, authorized a letter to
“So that the Commissioner will be aided in his investigation we should like to state that the majority of the Board have individually stated that they do not intend to move the High School from Westwood. Should this be what is disturbing the Commissioner and some of the residents of this district, we would like to state that the candidates recently elected to office in February ran on a ticket advocating deconsolidation of the district and promising that they would not allow the high school to be removed from Westwood. In furtherance of the promises, this Board has recently written a letter to our State Senator and Assembly requesting their aid in introducing a bill permitting deconsolidation. The Board‘s action was supported by the 2 to 1 vote given the recently elected candidates running on such platform. Should the Commissioner question the action taken by the majority members of this Board, we quote the following from the case of Botkin v. Westwood, 52 N. J. Super. 416 which states at page 432, ‘That segment of the Borough‘s population favoring deconsolidation is not without proper means to raise the question and have it determined. As is usual in a representative form of government, candidates for the consolidated district board of Education can run for office on that issue and if there is ultimately elected a majority of the board favoring such action, the Board can take steps to attempt to secure legislation or otherwise resolve the problem fairly and in an appropriate manner. It will thereby be considered by the body to which the law has committed such matters. In the meantime, local sentiment can undoubtedly be ascertained by interested civic groups or organizations through postal questionnaire or similar means, if such an expression is thought desirable.‘”
We will later comment upon the Board‘s reference to Botkin v. Westwood.
The State Commissioner dispatched his staff to the school district, and on June 28, 1960 he sent the Board a copy of the report of the study. The report concluded that the school district should “proceed immediately to carry out the program as approved by the voters for the expansion of the educational facilities.”
The Board nonetheless declined to build the new senior high school. The present suit, to compel it to do so, was started in August 1960. On November 21, 1960 the Board engaged an educational consultant, Dr. William K. Wilson, to make a study, but under a specific direction which would
At the trial of the present case, it appeared that the Board had sought to place the Wilson plan before the State Commissioner of Education who however declined to consider it because of the pendency of this suit. In an effort to conclude the controversy, the trial court suggested the new plan be presented to the Commissioner under an agreement that if he disapproved it, the Board would promptly execute the proposals adopted at the referendum. The suggestion was accepted, with however the proviso that the trial court would review an adverse ruling by the Commissioner if the Board should charge it to be arbitrary.
The Board then adopted a resolution proposing to renovate the existing high school in the Borough, to acquire lands adjacent to its site, and to erect a junior high school and an administration building in the Township. This new proposal, based on the Wilson report, was submitted to the Commissioner.
The Commissioner held a hearing. He disapproved the new plan, concluding it did not meet the condition in
The trial was then resumed. The Board asked the trial court to review the Commissioner‘s action on the ground that it was arbitrary. The court did review it and found the challenge was not sustained.
Upon the conclusion of the case, the court held the Board was arbitrary in its refusal to execute the program approved by the referendum and ordered the Board to proceed with it. With respect to the other issue in the case, the validity of the resolution directing the attorney for the Board to prepare a legislative bill for deconsolidation, the court found the Board exceeded its power.
I.
The present
“The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.”
Pursuant to this mandate, the Legislature prescribed a comprehensive scheme whereby such education would be furnished by boards of education within their respective school districts.
A.
The issue is whether the trial court erred in ordering the Board to carry out the proposal approved by the referendum vote.
Alternatively, the Board contends the referendum in nowise limited its broad discretion to decide what facilities are “suitable,” and hence, notwithstanding the vote, it may consider the problem anew. The Board argues that since
But in the last analysis, whether a statute is mandatory despite words which, abstractly, may be permissive, depends upon the intent of the Legislature, gathered from the context in which the words appear. Harvey v. Essex County Board of Chosen Freeholders, 30 N. J. 381, 391 (1959); Montclair v. Baxter, 76 N. J. L. 68, 69 (Sup. Ct. 1908). So, the word “authorize” has been found to be peremptory. State v. Newark, 28 N. J. L. 491 (Sup. Ct. 1860).
Hence we must look for the sense of the statutory scheme. We start with the proposition that ordinarily the object of an election is to ascertain the will of the electorate. Where
Nor does the referendum serve to vest in local government the power to deal with a problem. That power was already granted to the Board by
In these circumstances, the Legislature could hardly have meant that, notwithstanding the election, the Board may change its mind with the freedom it would have if its discretion alone were involved. Rather we think the Legislature committed the final judgment to the voters.
This is not to say that the vote upon the referendum must be obeyed no matter what may later ensue. We may assume the Legislature intended some residual power to meet the extraordinary or unexpected. One can conceive of supervening events which so nullify the premise upon which the vote was had, that discretion remains in the Board to seek relief from the mandate in the public interest. But to rehash the merits of the policy decision which was submitted to the electorate and to decline to fulfill its will because the same or new members of the Board now prefer another program is something else. The time for the Board‘s decision upon such matters was before the vote. When the voters approved the proposals, the debate upon policy was ended.
It may well be that the individual members acted in good faith in the sense that they believed their official duty was to the section which voted them into office, but if such was their thinking, they misconceived their duty. The Board is an instrumentality of the State itself, 78 C. J. S., Schools and School Districts § 24, p. 656, obligated to meet the educational needs of the children of the whole district. The Legislature provided for elections of members from constituent municipalities to the end that the interests of all may be known and reflected. It did not, by that mode of selection, suggest the members of the Board have anything less than an undivided duty to the whole. See McDonough v. Roach, 35 N. J. 153, 158 (1961).
Hence we find no justification for the Board‘s refusal to proceed. It did not have the discretion to revisit the scene and reconsider what had been decided. We add that if such discretion could be found, the evidence would lead inescapably to the conclusion that the new view was with a jaundiced eye. The Board started with a determination to keep the high school in the Borough and simply sought to build a case on that premise without regard to the interests of the entire school district. This is evident from the excerpt quoted above from the letter to the State Commissioner which the Board authorized at its meeting of April 13, 1960.
It will be recalled that in that letter the majority of the Board claimed its course was supported by Botkin v. Westwood, supra (52 N. J. Super., at p. 432). There the
B.
The Board contends the trial court erred in overruling its charge that the Commissioner was arbitrary in his refusal to consent to the substitute proposal.
In the light of the conclusions we have reached, the correctness of the Commissioner‘s decision seems of no moment. If the Board was bound to proceed with the original proposal, it is not important whether the Commissioner correctly refused to consent to the substitute plan.
The precise role of the submission to the Commissioner during the trial of the case is somewhat obscure. The trial court had in mind something in the nature of a settlement, the parties to abide by the Commissioner‘s decision as to the substitute plan. An element of uncertainty was later added when a controversy developed as to what the agreement really meant.
The view of the arrangement, most favorable to the Board, would be that with court approval the parties reached an agreement of settlement which should be enforced even though the Board had no lawful defense to the primary claim. Upon that hypothesis, however, the Board is nonetheless bound to execute the original proposal for the reason that the Commissioner‘s action was not unreasonable.
The main thrust of the attack upon the Commissioner‘s refusal to consent to the substitute plan is that he misconceived his role under
The Board quarrels with the Commissioner‘s finding with respect to the subject we have italicized. The Board contends this language means the Commissioner may inquire only as to whether there is some method of financing the project more economical than a bond issue. Hence, says the Board, the Commissioner had no authority to inquire into the internal economics of the substitute plan and the quality of the educational program it would provide, and then to compare the plan in those terms with the original proposal.
The Board‘s construction of the statute is strained. If the Legislature had in mind an inquiry merely as to whether there was a method of financing more economical than a bond issue, it would hardly call upon the State Commissioner of Education for a decision. His expertise is in other areas. Surely in making the settlement agreement, the parties had no such thought. We say this because upon that view of the statute the submission to the Commissioner would have been an idle thing. First, no one suggested the possibility of a more economical method of financing. Second, the Commissioner had already consented to the original proposal for a bond issue, which, upon the Board‘s present view of the statute, would have been a finding that there was no more economical method of financing. Thus the Commissioner‘s consent to the substitute plan would have been a foregone conclusion. Quite obviously, the parties understood the Commissioner would make the very inquiry he did make.
The Commissioner‘s findings were well grounded. Hence the Board cannot escape its duty to proceed with the
C.
The conclusions we have reached make it unnecessary to consider sundry allegations of error in the conduct of the trial.
II.
The school board contends plaintiffs failed to exhaust their administrative remedy.
The State Commissioner of Education has jurisdiction to decide “all controversies and disputes arising under the school laws,”
This statutory scheme has been broadly construed to the end that the judiciary may have the benefit of the special experience of the administrative agencies in this important area. We have no precise precedent, but other decisions readily support the view that the controversy before us comes within the statute. See Waldor v. Untermann, 10 N. J. Super. 188 (App. Div. 1950); Welsh v. Board of Education, 7 N. J. Super. 141 (App. Div. 1950); Ridgway v. Board of Education, 88 N. J. L. 530 (Sup. Ct. 1916); Montclair v. Baxter, supra (76 N. J. L. 68).
The question therefore is whether we should undo what has been done because plaintiffs did not exhaust the administrative remedy.
R. R. 4:88-14 provides:
“Except where it is manifest that the interests of justice require otherwise, proceedings under Rule 4:88 shall not be maintainable, so long as there is available judicial review to a county court or inferior tribunal or administrative review to an administrative agency or tribunal, which has not been exhausted.”
The requirement for the exhaustion of the administrative remedy is neither jurisdictional nor absolute in its terms.
There is no rigid formula for the exercise of that discretion. Nolan v. Fitzpatrick, supra (9 N. J., at p. 486). The public interest in a speedy determination may be considered. Waldor v. Untermann, supra (10 N. J. Super., at p. 191), and Koven v. Stanley, 84 N. J. L. 446, 447 (Sup. Ct. 1913). Here, the need for a prompt solution of a school problem and the possible prejudice from rising building costs, plus the delaying moves which had already beset the program, were weighty considerations in favor of acceptance of the dispute. The amount of administrative expertise involved must also be considered, but although the views of the State agencies would undoubtedly be desirable, the case ultimately involved a question of law concerning the effect to be accorded to the referendum. In these circumstances we cannot quarrel with the trial court‘s exercise of discretion. Moreover, the court in fact received the benefit of the expertise of the State Commissioner of Education both by reason of his report of June 1960 and his decision upon the application for consent to the substitute plan. Surely the public interest would not be served by rerunning the litigation.
III.
The remaining question is whether the trial court erred in setting aside the Board‘s resolution directing its attorney to prepare a legislative bill for deconsolidation of the school district.
We assume the attorney was to be specially compensated for that effort. The record is not clear, but the Board presents the issue in those terms, contending it “has the
The Board relies upon Reilly v. Ozzard, 33 N. J. 529 (1960), in which we said that local government may seek or oppose legislation affecting its interests (p. 544) and may direct its attorney to prepare a legislative bill (p. 546). The difference here, however, is that the Legislature did not commit to the school board the power to destroy itself or to recommend its own demise. The sum involved may be small, but if the principle for which the Board contends should be upheld, a school board could as well spend substantial moneys to campaign to the same end. See Citizens to Protect Public Funds v. Board of Education, 13 N. J. 172 (1953).
The funds of the Board are committed to education within the whole district. Here those funds would be used to advance the interests of but a part of the whole, in response to the sentiment within the Borough to go another way. The Legislature did not authorize a school board to devote public moneys to support factional controversies. If internal dissension should embarrass a board‘s ability to comply with its public duty, it would be quite enough for it to express that opinion, and leave it to others to finance a movement for legislation. If the governing body of a county or a municipality attempted to draw upon its treasury to finance the effort of a portion to secede from the whole, there could be but one answer. Such is in essence the situation in this case. It is not pretended that the welfare of the children within the Township (or even within the Borough) would be advanced by deconsolidation. Rather a majority of the Board, bound to further the State‘s duty to all children within the school district, would use moneys, earmarked for that purpose, for the relief of the taxpayers of a part of the district. The resolution was correctly adjudged invalid.
The judgment is accordingly affirmed.
Let me illustrate. Two small municipalities, each unable to support a school system, or perhaps not having enough resident children to warrant an independent system, join to establish a school district. With the passage of years, each municipality experiences tremendous population growth. As a result, all of the members of the consolidated board of education feel that each municipality is
Consider another hypothesis: Suppose that shortly after the formation of a consolidated school district and while relations were harmonious, but at a time when there was neither need nor immediate intention to divorce the units, the board members decided without dissenting vote that in anticipation of future growth, or perhaps even future dissension, some legislative machinery for deconsolidation ought to be available. Under the majority opinion they would lack authority to engage their attorney for pay to prepare a proposal for the necessary legislation.
Management of a consolidated school district is committed to the discretion and judgment of the board of education. It seems to me to be well within their official function, as representatives of the entire district, not only to seek correction of what they may conceive to be a legislative oversight, but also to make reasonable expenditure of their operating funds to assist in accomplishing the result. No hard and fast rule is needed, either barring or limiting such expenditures. The ordinary rule of reason ought to provide sufficient safeguard against excesses.
Reference has been made thus far to hypothetical instances where there was unanimity among the board members. My departure from the majority opinion is more
For the reasons outlined, in my judgment the dictum of the majority does not represent sound doctrine.
The trial court found, and this court agrees, that the majority members of the Board of Education, in engaging its attorney to prepare legislation to bring about deconsolidation, were not acting in the interest of the whole district but on the contrary were consciously serving what they conceived to be the partisan interest of the municipality in which they resided. There is ample evidence to support that finding, and for that reason I concur in the result announced in the opinion of the Chief Justice.
JACOBS, J., joins in this concurrence.
HANEMAN, J. (concurring in result). I join with Justice Francis in his concurring opinion, except so much thereof as would permit the Board to retain counsel by a majority vote rather than by a unanimous vote.
JACOBS, FRANCIS and HANEMAN, JJ., concurring in result.
For affirmance-Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN-7.
For reversal-None.