Citizens to Protect Public Funds v. Board of Education/Concurrence Heher

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Case Syllabus
Opinion of the Court
Concurring Opinion

HEHER, J., concurring.

Once it is conceded that the local board of education is empowered to submit the merits of the issue to the electorate at public expense, the judicial supervisory jurisdiction is concerned only with the limitations of the power and the containment of its exercise within [NJ183] the bounds of reason. Censorship is not of the judicial province. City Affairs Committee v. Board of Com'rs of Jersey City, 134 N.J.L. 180 (E. & A. 1946).

The mode and manner of the performance of the local function, if directed to an end within the allotted sphere of action, is not a justiciable question. Action transcending the dictates of reason constitutes an excess of power correctible by the judicial process; but mere matters of policy, propriety, expediency, taste and delicacy in the way of action for the attainment of a lawful end are not subject to the least judicial superintendency. Debatable questions as to reasonableness of policy and procedure are not for the courts but for the local authority. We do not substitute our judgment in this regard for the discretion of the local administrative body, reasonably exercised; the judicial function is the correction of arbitrary and unreasonable action and abuse of power. Salisbury v. Borough of Ridgefield, 137 N.J.L. 515 (Sup. Ct. 1948). This is fundamental in the separation of powers; the judicial province is to confine the local agency within its delegated sphere of action. If the question of reasonableness be fairly arguable, then the doubt is to be resolved in favor of the action taken. If the object in view be lawful, the choice of means to that end rests in the sound discretion of the administrative authority; and there can be no judicial interference unless the mode of execution itself be contrary to law or palpably unreasonable or wanting in good faith. N.J. Good Humour, Inc., v. Board of Com'rs of Bradley Beach, 124 N.J.L. 162 (E. & A. 1940).

There can be no doubt that the thing done here was designed to and did in fact serve an essential public purpose. The local board of education is under a peremptory duty to provide "suitable school facilities and accommodations for all children who reside in the district and desire to attend the public schools therein," including "proper school buildings, together with furniture and equipment, convenience of access [A679] thereto, and courses of study suited to the ages and attainment of all pupils between the ages of five and twenty [NJ184] years"; and a failure "to provide such facilities or accommodations" may incur the loss of all state school aid, not to mention the personal consequences attending the failure of official duty. R.S. 18:11-1; R.S. 18:11-2, as amended by L. 1936, c. 88, p. 306.

It was conceded on the oral argument that 90% of the brochure constituted a fair presentation of the facts, and was unexceptionable. Complaint is directed to the "exhortation" to vote "yes," as in the nature of advocacy and therefore beyond the function of the administrative body. The court deems objectionable this and what is termed over-dramatization of "the dire consequences of the failure so to do," as the use of public funds for advocacy of "one side only of the controversial question without affording the dissenters the opportunity by means of that financed medium to present their side." The court distinguishes between "the presentation of facts merely" and "arguments to persuade the voters that only one side has merit," suggesting that the funds entrusted to the local authority "belong equally to the proponents and opponents of the proposition." "Presentation of facts" is within the implied power; but "arguments to persuade the voters" are not.

I consider this an arbitrary differentiation at variance with the realities and the essential content of the power. If the board may present the "facts" bearing upon the merits of the submission, on what consideration is it to be restrained from giving expression to its experienced judgment as to the existence of a public exigency and the course that will serve the need? It is all for the enlightenment of the electorate in aid of the just determination of an issue related to the public interest. There is no element of compulsion; it is purely informative. I cannot accept the proposition that there may be a presentation of the facts bearing upon the need, but not their assessment by the authority to whom the administration of the school system has been entrusted and whose judgment is informed by actual experience in the performance of the statutory duty. And was it not proper for the board to conclude with the statement that, [NJ185] if the need is to be served, the question submitted must be answered in the affirmative?

If there is to be a declaratory judgment denying the power as here exercised, I dissent. I would affirm the judgment of dismissal.