69 N.J.L. 649 | N.J. | 1903
The question presented for solution is the constitutionality of the so-called General School law of 1902, entitled “An act to establish a system of public instruction.” Pamph. L., p. 69. It is attacked as being a “local or special law, providing for the management and support of free public schools,” and therefore prohibited by article 4, section 7, paragraph 11, of the constitution as amended in 1875.
The act contains two hundred and fifty sections. Our present inquiry relates particularly to those portions that have to do with, the home government of the schools, as distinguished from state and county supervision. Sections 33 to 41 are grouped under article 5, with the caption “School Districts.” Sections 42 to 80 are. grouped under article 6, with the caption “Boards of Education in City School Districts.” Sections 81 to 99 are grouped under article 7, with the caption “Boards of Education in Township, Incorporated Town and Borough .School Districts.” Articles 6 and 7 provide separate codes for the school districts covered thereby respectively. The differences relate principa]ly to the mode of choosing the local trustees, and to the method of raising moneys for the support and maintenance of the schools. For city districts there is a referendum to the people of the question whether the board of education shall be appointed by the mayor or shall be elected by the people. The annual financial budget is to be made up by a board of school estimate, of which two1 members are to be appointed by the board of education from its own membership, and the common council or other body having power to make appropriation of moneys raised by tax in such city, is to appoint two from its membership, and these four, together with the mayor or other chief executive officer of the city, are to constitute the board. The same board determines the amounts necessary to be raised for the purchase of lands and construction, &c., of school buildings—the power of appropriating and borrowing money for the purpose being reposed in the common council or other municipal body. In the township,
From the opinion delivered by Mr. Justice Dixon in the Supreme Court, it is manifest that the only question discussed before that court was the constitutional validity of a classification of school districts for the purpose of divergent legislation, made by placing all city school districts in one class and all other school districts in another class. The act was dealt with as if, either by its terms or by force of previous legislation, all the school districts of the state were coterminous with the bounds of some municipality.
In this court certain features of the act not adverted to below were pointed out and discussed. As will be presently shown, they result in subdividing the two principal classes of districts just mentioned and bring into jfiay special discriminations, so that the act does not operate uniformly in all cities, nor uniformly in all the other forms of municipality.
Our constitution, since the amendments of 1875, has recognized the common law classification 'of municipalities into counties, cities, incorporated towns, boroughs, villages and townships, and it is already established by repeated decisions of this court that the constitutional inhibition against special legislation regulating the internal affairs of municipalities is not violated by laws that make distinctions between the different forms of municipalities, based merely on the common law classification. Hermann v. Guttenberg, 34 Vroom 616; Boorum v. Connelly, 37 Id. 197.
It is equally well settled that where the legislature makes a
In the present case we have to consider not only the constitutional prohibition of special laws regulating municipal affairs, but the additional prohibition of special laws “providing for the management and support of free public schools.”
In Lowthorp v. Trenton, 33 Vroom 795, this court, speaking through the present Chief Justice, intimated a doubt whether under this clause any classification of schools or-of school districts was permissible. Upon full consideration we are now unanimously of the opinion that such classification, within due limits of generality, is permissible. Assuming that, for purposes'of local management and support, a single school might be treated as a natural, logical unit, and that the adjacent territory, whose children should attend there for education and whose citizens and property owners ought to contribute especially to its support and to have voice in its management, might be set apart as a “school district,” we entertain no doubt that these units may be grouped together so that single districts may- be made to comprise numerous schools, combined for purposes of local government.
We are likewise unanimous in the view that schools and school districts having characteristics so nearly alike as to require similar treatment in' legislation may be grouped together in classes, and that such classification may b'e made the basis of divergent legislative provisions, appropriate to the different classes respectively. In the opinion of all, a legislative classification of school districts,'proceeding on lines germane to the objects and purposes of the law, would serve to make general an enactment providing for the management and support of the free public schools.
A minority of the judges, including the writer of this opinion, have found ourselves unable to adopt this view. We give to the constitutional prohibition of special laws respecting, schools an independent force and effect, unqualified by the prohibition respecting municipal legislation. We read 'it in connection with the constitutional mandate that “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 this state between the ages of five and eighteen years.” Assuming that the legislature might make the schools a matter oj special concern to the several municipalities, either by establishing school districts coterminous with municipal districts, but having separate local government, or even by delegating the
Accepting, however, the view of the majority in the present case as settling the ’law upon this topic, it follows that if the statute under consideration had made the school districts everywhere coterminous with municipal boundaries, and had 'based its divergent provisions respecting school management and support upon the common law classification of the municipalities, the act would have been sustained.
But we are all of the opinion that this act contravenes the constitution, in that while assuming to adopt in general the common law classification, it makes exceptions and distinctions with respect to certain school districts that are arbitrarily set apart and separately legislated about, or left subject to previous -legislation, in such a manner as to render the act local and special within the constitutional interdict.
' ITow this is done, we will attempt to point out. As already remarked, article 6 assumes to provide a code of government for “city school districts,” article 7 a code for “township, incorporated town and' 'borough school districts.” If all school districts were included in one or the other of these classes, and if each code consisted of regulations uniformly operative upon the class in question, the common law method of classification would be satisfied. Such, however, 'is not the case.
The provisions respecting the delimitation of the districts are 'found principally in section 33 of 'the act, which reads as follows:
*655 “33. Each township, city and incorporated town shall he a separate school district, but each incorporated villáge and each borough hereafter created shall remain and be a part of the school district in which said incorporated village or borough shall be situate at the time of its incorporation; and each borough heretofore incorporated which shall not have assumed the functions of a separate school district by the election of a board of education,-or which shall not have actually acted as a separate school district, shall be and remain, and shall be deemed to have been and remained, a part of the school district in which it was situate at the time of its incorporation as a borough, any law to the contrary notwithstanding; provided, that whenever it shall appear to the state superintendent of public instruction that the best interests of any borough require that it be a separate school district, he shall make an order creating such borough a separate school district; such order shall not take effect until approved by the state board of education; provided further, that nothing in this section shall be construed as abolishing any school district which shall have assumed the functions of and acted as a separate school district by the election of a board of education prior to the introduction of this act, or changing the boundaries of -any school district possessing complete official autonomy prior to. the introduction of this act, but such district shall be and remain a separate school district until consolidated with an adjoining school district as hereinafter provided.”
It will be perceived at once that this section makes little, if any, change in the territorial boundaries of the districts as they existed de facto at the time the1 act was passed. The case is submitted to us without either findings of fact, or evidence upon which to base a finding of fact, determining the actual bounds of the school districts as they ■ existed prior to this act. If, however, they had been uniformly coterminous with municipal boundaries, the-second proviso of section'33 would have been uncalled for. Therefore, that -proviso- amounts to a legislative declaration that there existed certain échool -dis
We do not undertake to say whether other laws are to be found upon the statute book, under whose operation school district boundaries have been rendered non-conformable to municipal boundaries. Enough has been said to show that section 33 of the present act, by its second proviso, excepts from the force and effect of its earlier clauses a group or groups of school districts set apart by themselves according to arbitrary characteristics that existed at the time of the passage of this act. It would seem that specially incorporated
Nor are we now questioning the power of the legislature with respect to establishing the bounds of school districts. Our present concern is with the method of their classification for the purposes of this act. It is plain that this classification does not uniformly follow the common law classification of the municipalities, for the districts do not uniformly coincide with the bounds of the municipalities themselves. How many exceptions are permitted by the act is obscure, and there is nothing before us to elucidate this question. That exceptions exist is entirely clear; that they are arbitrarily made is equally so.
An examination of articles 6 and 7 will disclose that the governmental regulations therein contained are applicable in terms only to school districts that are co-extensive with the bounds of a single municipality. It is at least doubtful whether they apply to a district comprising only a part of one municipality, or comprising parts of two or more municipalities. That they were not intended to be applied in their entirety to all the school districts of tire state is rendered quite plain by section 244, which is as follows: ?
“In any school district which comprises a municipality and a'portion of an adjoining municipality, members of the board of education shall be selected in the • same -manner' in all respects as they are selected in said district at the time of the passage of this act, and moneys for the maintenance of public*658 schools therein, shall he ordered, assessed, levied and collected in the same manner as they are ordered, assessed, levied and collected therein at the time of the passage of this act.”
We should note, also, that part of section 249 which declares that members of boards of education in all township, incorporated town-and borough school districts shall continue to be elected or appointed in the same manner as said members have been heretofore elected or appointed.
Therefore, in respect at least to two-principal matters relating to the management and support of the schools (to wit, the selection of the local trustees, and-the ordering and raising of moneys for maintenance of the schools), arbitrary exceptions have been made from the general applieancy of articles 6 and 7.
In section 250 we find the declaration-that “all school districts shall hereafter be governed solely by the provisions of this act,” and a- general repealer of inconsistent provisions. It is manifest, however, that this language cannot have the effect of overriding special saving clauses and provisos contained in -the act itself. It cannot subject to the provisions of article 6 or .of article 7 any school district that is not within the descriptive terms of those articles. Neither can any district, so far as the selection of members of the board of education and the ordering and raising of moneys for school support are concerned, be governed by section -244, and at the same time be governed by inconsistent provisions contained in .article 6 or in article 7. In short, the language quoted from section 250 must be construed as bringing all school districts within the provisions of this act, so far and so far only as those -provisions in terms apply to any district in question.
Two further clauses of this act require specific mention at this point. In section 246 there is a clause confirming all elections or submissions to the voters of any school district under the General School law of 1900, of the, question whether in such district the board of education should- be elected by the people or otherwise, with the declaration that in every such
Again, there is a proviso appended to section 250, declaring “that this act shall not repeal or affect the provisions of any general act which may have been or which may hereafter be-accepted by a vote of the people in any city or school district in this state.”
Now, under the act of 1900 (Pamph. L., p. 206, §§ 45, 46) a referendum upon the question whether the school board should be elected or appointed was granted to every municipality, irrespective of its form of incorporation, provided it were divided into wards. In municipalities not divided into wards there was no referendum and the members of the board of education were in all cases to be elected by the people; the only local option being as to the number- of members that should constitute the board. Pamph. L. 1900, p. 217, §§ 85, 86, &c. It was this discrimination between school districts in municipalities divided into wards and school districts in municipalities not so divided that was held illusory and unconstitutional by this court in Lewis v. Jersey City, 37 Vroom 582. Thus the effect of section 246 of the act of 1902, and of the proviso of section 250, in confirming a referendum theretof ore held under the act-of 1900, is to-perpetuate the consequences of an unconstitutional classification of school districts in a limited number of localities that happen to have taken action under the void law prior to the enactment of-the-present one. For under the present act, while a somewhat similar and perhaps identical referendum is- open to city districts, subject to some qualifications (Pamph. L. 1902,
If the effect of section 246, in confirming the results of a previous referendum, was to lead to uniformity, it might be supported. Tiger v. Morris Common Pleas, 13 Vroom 631; Bumsted v. Govern, 18 Id. 368; 19 Id. 612.
Now, with respect to cities that are divided into wards, the confirmed referendum does tend to uniformity, because, by the act of 1902, they are placed on the.same basis as cities not divided into wards, and the circumstance of the referendum having been employed prior to the adoption of the act of 1902 might be treated as immaterial. This is on the assumption that the subject-matter of the referendum was the same under the act of 1900 as under the act of 1902, a point we do not stop to critically examine. . But with respect to townships, incorporated towns and boroughs that are divided into-wards, the effect of section 246 is to produce diversity; for' those divided into wards that have heretofore employed the referendum must have an appointive school board if they have-so voted, whereas townships, incorporated towns and boroughs that have no wards, and those that have wards but have heretofore voted for an elective board, or did not vote-at all upon the question, must hereafter have elective boards.
Returning to section 33, it will be noticed that boroughs are thereby divided into two classes. The territory of boroughs heretofore incorporated, if already organized as a separate school district,‘is to-so remain unless afterwards consolidated with adjoining territory. In boroughs hereafter incorporated, the people are not to have independent school government' unless the state superintendent of public instruction and the state board of education shall unite- in so- determining. If any rational basis exists for this discrimination, it has not been pointed out.
Enough has been said to demonstrate that the act adheres neither to the common law classification of municipalities nor to any legislative classification that is germane to the subject-matter. The classification of school districts is intricate, and not easily followed. Plainly, however, numerous subclasses are dealt with, and these, as a rule, are distinguishable only by unimportant characteristics.
As already appears, these minor classifications (as they may be called for convenience) are made the basis of discriminations in the act that have no reasonable pertinency to the needs or circumstances of the districts thus set apart. The classification is purely arbitrary. It was very properly conceded by the learned attorney-general that in this respect the act under consideration is in. contravention of the fundamental law.
It is argued, however, that these unconstitutional features may be treated as excrescences upon the general scheme of the act, and may be totally disregarded, leaving the statute in its main features to remain. Upon this question we adhere to the declaration of Mr. Justice Depue, afterwards Chief Justice, speaking for this court, in Johnson v. State, 30 Vroom 535 (at page 539),: “It is undoubtedly elementary law that the same statute may be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand, and that which is unconstitutional will be rejected. 'But if the different parts of the act are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not have passed
In. the absence of any express declaration to the contrary contained in the act itself, the presumption is that the legislature intended any given enactment to be effective in its entirety. Iowa Life Insurance Co. v. East. Mutual Life Insurance Co., 35 Vroom 340, 346. In seeking the legislative intent, the presumption is against any mutilation of a statute, and. the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process.
Assuming the act- sub juclice to be constitutional in its general features, we might perhaps say that so much of section 246 as undertakes to perpetuate the discriminations that result from the employment of a referendum under a previous unconstitutional statute might be exscinded as a mere excrescence.
But the other discriminations stand, we think, on an entirely different basis. Section 33, for instance, contains in and of itself nothing unconstitutional,- unless it be the provisions respecting boroughs. It purports to establish the bounds of the several school districts of the ■ state, and, as already mentioned, it leaves the existing school districts to remain -as- they stood prior to the passage of the act, aro existing school district beiaag abolished or being changed in respect to its boundaries. We are not prepared to say that the legislature -may aaot, by special act,-create a school district, just as they ■ create aaew municipalities, by the delimitation of a specified portioaa of the area of the state for that piarpose. What'may be doaae by specific descriptioaa may be done by reference to other legislatioia or by refereaace to the existing status. The uncoaastitutioaaality of the preseaat law arises, not from the -mode in which the bouaads of the several school districts are pointed'out in- section 33, but: from the mode in
Were this done, we should still have the de facto school districts as they stood at the passage of the act, some of them coterminous with the bounds of cities, townships, incorporated towns or boroughs, and a remaining group not coterminous with any municipality, being either. made up -of a portion of one municipality, or portions of two or more municipalities, or comprising the whole of one municipality and a portion of another. Then we find article 6 prescribing a code for city school districts, article 7 a code for
Our attention is called to a supplement, approved March 2d, 1903 (Pamph. L., p. 22), by which sections 244 and 250 are amended. Under Allison v. Corker, 38 Vroom 596, the amendments, so far as they go, may relieve the act of unconstitutionality. This could have no effect upon the present decision, however, for this case arose before the passage of the supplement. The effect of the supplement is to strike out the second proviso of section 250, and thereby to eliminate one .feature which seems to contribute to render the act unconstitutional. But section 244, as amended, while conferring upon the board of education in any school district, which
For these reasons the judgment of the Supreme Court must be reversed and the proceedings under review be. set .aside, with costs.
In the determination of this case, the following questions were submitted to the vote of the court:
First. Is legislation' which provides one method for the •management and support of free public schools in cities and .another and a different method for all other municipalities prohibited by article 4, section 7, paragraph 9, of the eonsti•tution, which forbids the passage of private, local or special laws providing for the management and support ‘ of free •public schools ?
Yes—Ti-ie Chancellor, .Pitney, Bogert, Yredenburgh, Yroom. 5.
No—The Chibe Justice, Yan Syckel, Fort, Hendrick•son, Green, Gray. 6.
Second. Do the provisions of the act of 1902, entitled “An -act to establish a system of public instruction,” which except certain school districts from the two general classes created by the act and impose divergent rules and regulations in respect of school management and support upon those excepted districts, render the act. unconstitutional ?
Third. Shall the judgment of the Supreme Court be affirmed ?