The opinion of the court was delivered by
Hall, J. A. D.
This appeal involves a fundamental question concerning the legislative division of the powers and responsibilities of government at the municipal level between the local governing body and the board of education.
On September 23, 1958 the Mayor and Council of the Borough of Westwood adopted a resolution requesting the Bergen County Clerk to print upon the official ballots to be used at the general election in the borough on November 4, 1958, the following question as a non-binding referendum (R. S. 19:37-1, as amended):
“Should any action be considered to effect a deconsolidation of the Consolidated School District of Westwood and Washington Township?”
A copy of the resolution was duly filed with the county clerk and he has printed the question on the sample and official ballots. R. S. 19:37-2, as amended.
About three weeks later plaintiff, a borough citizen and taxpayer, commenced this action in lieu of prerogative writ seeking to set aside the resolution as illegal and void and to direct the county clerk to remove the question from the ballot on the principal grounds that the resolution goes beyond the power and authority granted a municipal governing body by the cited statute and constitutes an illegal interference by such body with the affairs of the consolidated school district, a separate and distinct entity.
Plaintiff moved for summary judgment in the Law Division on October 24. The trial court, in view of the time emergency apparently, and most properly, relaxed the rule forbidding- such a motion until after the expiration of 20 days from the service of the complaint. R. R. 4:58-1; cf. R. R. 4:88-4; R. R. 1:27A. On the motion affidavits were presented in behalf of plaintiff and the governing body which detailed the situation and its background. No issue of fact was presented thereby and the issue was purely legal. The motion was denied that day.
Plaintiff applied to us on October 27, on proper notice, for leave to appeal. Leave was granted because of the general public importance of the matter. By reason of the very urgent time element counsel for all parties agreed that their oral arguments and briefs on the motion, which thoroughly discussed the merits, should be considered by the court, together with a supplemental memorandum subsequently filed, as their presentation on the appeal itself. The Deputy Attorney General orally expressed to the court the viewpoint of the Commissioner of Education on the issue without objection by any of the parties. We decided the appeal on October 29, one judge dissenting, reversing the order denying plaintiff’s motion for summary judgment, directing the entry of a judgment in this court granting the motion to the extent of setting aside the resolution as illegal and void and of ordering the county clerk to remove the public question from the official ballot to be used at the general election on November 4 and further ordering that our mandate should issue forthwith. Since the borough has appealed and the matter will be heard by the Supreme Court on November 3, it is essential that we immediately express the reasons for our decision.
At the outset we consider certain procedural objections raised by the borough, which we find not to be dis-positive. It is suggested that the action comes too late and should be dismissed since the county clerk has already printed and delivered the sample and official ballots. (R. S. 19:14-1; 19:14-21, as amended, 24 and 25, as amended; R. S. 19:49-2, as amended.) While this is true, the county clerk says that, since voting machines are used in Bergen County, that portion of the ballot setting forth the question can be removed from the machines without any real practical difficulty. The fact that the sample ballot sets forth a question which will not appear on the official ballot on the machines is not controlling under the circumstances since this is not a case where a change in the ballot at a very late date would add to be voted on a question, candidates or offices not set forth on the sample ballot without sufficient opportunity for the electorate to become informed thereon. Cf. Michaels v. Johnson, 33 N. J. Super. 77, 85 (App. Div. 1954). The borough also suggests that plaintiff should have proceeded under R. S. 19:14-20, as amended, which provides for a summary proceeding to correct an “error” appearing on the ballot copy prepared by the county clerk. The matter involved is not an “error” within the contemplation of that section. Michaels v. Johnson, supra (33 N. J. Super. at page 83). Since the question involved is the fundamental power and authority of the municipal governing body in calling for the referendum, plaintiff’s proper remedy was that adopted, namely, a complaint in lieu of prerogative writ to review the underlying resolution.
To consider the basic issue in proper focus, we must, in conjunction with our discussion of it, sketch not only the events in Westwood culminating in the resolution, but also outline the Hew Jersey statutory scheme for the distinct separation at the local level of the public school system from other municipal governmental functions, in municipalities of the class here concerned. Our decision must rest upon the interpretation of the letter and spirit of the legislative intent as applied to the precise problem before us.
Effective July 1, 1951, Westwood and its neighbor, Washington Township, established a consolidated school district pursuant to the statute (N. J. S. A. 18:5-17.1 to 17.29, inclusive) and the consolidated district has been operative since. Westwood had both a high school and elementary schools; the township had only the latter. The effect of consolidation is to create a single separate entity and body corporate to administer the school systems formerly separately administered by the boards of education of the communities entering into the consolidation. The board of education of the consolidated district gains title to all of the property and assets of the consolidating school districts and is subject to their contracts, debts and other obligations. The consolidated district thereafter has all the powers and duties and is subject to the same restrictions of a so-called "Chapter 7 School District.” N. J. S. A. 18:5-17.6.
In New Jersey school districts of whatever classification, though coterminous with municipal boundaries except in cases of consolidated or regional districts, are, and have been for more than half a century, local governmental units, governed by a board of education. R. S. 18:6-21 and 18:7-54. George W. Shaner & Sons v. Board of Education of City of Millville, 6 N. J. Misc. 671, 673 (Sup. Ct. 1928). They are separate, distinct and free from the control of the municipal governing body except to the extent our education law provides. Such freedom is practically complete in the case of Chapter 7 districts; much less so in Chapter 6 districts.
The statutes relating to the latter (R. S. 18:6-1 ei seq.) applicable to cities and such other municipalities as may elect to be governed by it, provide for a system where the members of the board of education are appointed by the chief executive officer of the municipal government and annual appropriations, bond issues and other financial matters are determined by a board of school estimate composed of representatives of both the municipal governing body and the board of education.
A Chapter 7 school district, provided for by R. S. 18:7-1 e.t seq., also applicable to consolidated districts as we have noted, has almost no connections, except mechanical ones, with the local municipal government. This form of district exists in every municipality except cities and even a city may elect to accept its provisions. The governmental mechanics of such a district constitute the most direct democratic form we have in this state. Not only are the members of the board of education elected by the voters at separate school elections held at different times and places than municipal, primary or general elections, but the annual amounts of money to be raised by taxation, the purchase of land, the erection of buildings and. the issuance of bonds must all be submitted to and affirmatively authorized by the voters at such elections.
While school taxes in Yew Jersey are assessed, levied and collectéd along with all other taxes in one levy by the municipality and not by the school district (in many other states school districts levy and collect their own taxes separately), the municipal authorities act only as a mechanical agent of a Chapter 7 school district in levy, collection and remittance and the governing body may not change by even one cent the school tax amount fixed by the school district voters. The fact that the borough is the collecting agent for school district taxes does not give the slightest basis for intrusion in school affairs. Such a district may also even exceed its own debt limit and invade the borrowing power of the municipality by action of the voters at a school election and without the approval of the local governing body. R. S. 18:5-84 and 18:5-85 (a) (3), both as amended.
Our examination of Chapter 7 of Title 18 of the Revised Statutes discloses only one substantial instance where the municipal governing body may exercise any power over school affairs. That is in the case where school district voters have twice rejected a budgetary appropriation submitted at the annual school election, in which event the law provides that the governing body of the municipality shall determine the amount “necessary to provide a thorough and efficient system of schools in the district” for the ensuing school year, which amount shall constitute the tax levy for school purposes. R. S. 18:7-82. This is a most limited function, obviously provided by the Legislature to prevent a breakdown in public education in an extreme situation, and cannot be interpreted to give the governing body any warrant for otherwise intruding upon the administration of school affairs directly or indirectly. (This happened in the consolidated district last February but that fact can give no warrant for municipal intrusion in school affairs at any other time or in any other connection.) In only one other situation does it appear that a governing body may properly express itself in school matters; the governing body as well as the board of education may initiate electoral consideration of a change from a Chapter 6 to a Chapter 7 school district or vice versa. R. S. 18:6-3 and 18:7-3, both as amended. (The right to so change is not granted to a consolidated school district. R. S. 18:6-2 and 18:7-2, both as amended). It is indisputable that the legislative intention is clear beyond question that a Chapter 7 school district shall be completely independent and free from any control or intrusion by the municipal governing body in the affairs committed to its sole sphere. George W. Shaner & Sons v. Board of Education of City of Millville, supra. It is, of course, most fundamental that a local governmental unit, being but a creation of the State, is capable of exercising only those powers of government granted to it by the Legislature. Wagner v. Mayor and Municipal Council of City of Newark, 24 N. J. 467, 474 (1957). This principle is equally applicable with respect to the relation between separate governmental entities at the municipal level. A mayor and council are not omnipotent in all spheres of local government simply because they arc the municipal governing body.
Nor do we think the fact that we are concerned with a consolidated school district indicates any different conclusion by reason of the particular circumstances. Such a district can be created only through the initiative action of each board of education interested in the proposed consolidation in calling a special school election to secure the preference of the voters of its district on the proposal. N. J. S A. 18:5-17.2. A governing body may have no hand in it. The consolidated board membership of nine is apportioned among the participating communities on the. basis of population as shown by the. last federal census, with reapportionment made each decade. N. J. S. A. 18:5-17.8. The number so apportioned to each community are elected by the voters thereof at annual school elections. N. J. S. A. 18:5-17.9. In our case West-wood elects the great majority of the members since its population by the 1950 census was 6,766 as compared with 1.208 inhabitants for the township. New Jersey Legislative Manual, 1957, p. 238. Total annual tax levies to cover the expenses of running the consolidated system and debt service are determined by the favorable joint vote of the electorate of all participating municipalities at the annual school election. N. J. S. A. 18:5-17.13. The amount thereof apportioned to and to be raised by taxation in each participating municipality is determined by the county board of taxation in accordance with a statutory formula generally based on the ratio of assessed valuations in each to the total in all. In 1958 Westwood’s share was 62.26% and the township’s 37.74%. Such apportioned amounts are thereafter levied, collected and remitted to the board of the consolidated district by the tax collecting machinery of the respective municipalities. N. J. S. A. 18:5-17.14. The governing body thereof has no more to do with such taxes than where the municipality has its own separate school district.
There is no provision in the statute for dissolution of deconsolidation and it is conceded there is no available present means to accomplish it. The wisdom of the omission thereof is entirely a legislative and not a judicial matter. (The viewpoint expressed at the argument on behalf of the Commissioner of Education that he supports plaintiff’s position and would oppose legislation permitting deconsolidation, falls, of course, in the policy field, and can have no significance in our determination of the case.) The Legislature has, by its silence so far, said that the marriage, entered into for better or for worse on the favorable vote of the electorate of each community, cannot be dissolved. A similar absence of provision for dissolution is noted in the statutory provisions relating to regional school districts. R. S. 18:8-1 et seq. But see N. J. S. A. 18:5-1.2 et seq., permitting break-up of a school district originally coterminous with one municipality where that municipality has been divided into two or more.
Since this consolidated school district was established, its school population has substantially increased in common with most other communities. We are not advised whether that increase has been greater proportionately in the borough or in the township. In any event the consolidated district has acquired additional land, built new schools, and enlarged existing ones with voter approval. Its last expansion pro-proposal was defeated. It is to be resubmitted to the electorate in a few weeks. For the last year or two there has been dissatisfaction with the set-up by a substantial segment of the borough citizenry. No indication is given us of the attitude of the township people, who have a very substantial stake in the joint venture which cannot be brushed aside. While the reason for the discontent is not precisely stated, it can be surmised that many in the borough feel things are working to the financial disadvantage of borough taxpayers. Whether this claimed result is thought to he due to the statutory basis of apportionment of expenses between the two municipalities is not stated. In any event there has been increasing agitation in the borough for deconsolidation in which the mayor and council have taken a prominent part.
In 1957 the then mayor appointed a committee composed of two councilman and other citizens to inquire into the method of bringing about, if advisable, a deconsolidation. In January 1958 the committee held a public meeting in Ihe council chambers at which the Senator from the county was present. A petition was presented to him, signed by approximately 2,200 persons, expressing a desire to bring about a deconsolidation. We presume the signors were citizens of Westwood. If they were all voters eligible to participate in a school election, they represented a very substantial portion of the. electorate, for in 1956 the borough cast only 4,032 votes for presidential electors. (New Jersey Legislature Manual, 1957, p. 635). At the meeting the Senator stated that there was no law permitting separation and that he would bo unwilling to introduce any enabling legislation designed lo permit such (there was no indication whether he was referring to a general or special act) unless the desire to do so was clearly expressed by the voters of Wesfvood. It may soundly be inferred that the present referendum finds its origin in that statement and constitutes an oifort to supply the suggested expression of sentiment. In April 1958 another committee was appointed by the succeeding mayor to study the advantages and disadvantages of school consolidation. The second committee had a conference in the spring of 1958 with representatives of the State Department of Education, who also advised present law did not permit dissolution and that any new legislation should require electorate approval of the precise dissolution plan by the township as well as the borough before it should become effective. The committee submitted a lengthy report to the mayor and council under date of September 12, 1958 but we are not informed as to the conclusion. It is not stated in the record whether appointment of these committees by the mayor was authorized by action of the borough council or whether he merely created them as a citizen on his own initiative. If the former is the case, the governing body was certainly acting beyond its allotted sphere.
Without a doubt the matter of dissolving the consolidated district has become a major community controversy. No indication is given to us of the viewpoint of the members of the consolidated district board of education representing Westwood. It is most significant to note, however, that the matter has become completely embroiled in local partisan politics, since two candidates for the borough council at the ensuing general election, having the same party designation, are urging as a major campaign issue the advocacy of a referendum on deconsolidating the school district. It is very clear that the legislative scheme of separation of school district from governing body has for one of its principal objects the very sound policy of keeping partisan politics out of the administration of local public education as far as possible and to preclude the very kind of political involvement which is now happening in Westwood. The provisions of Chapter 7 are illustrative of this intention. Annual and special school elections must be conducted at different times than primary or general elections. R. S. 18:7-14 and 45. They cannot even be held within 20 days of a regular election. R. S. 18:7-46, as amended L. 1958, c. 113. School elections are called and conducted by the board of education and not through the regular election machinery. R. S. 18:7-15, 16 and 34. Political parties and organizations can have no participation therein. 12. $. 18:7-47.10. Candidates for the hoard of education cannot run with party labels and may not even be grouped on the ballot. R. S. 18:7-30. The aim is clear that the local school system shall be run by the citizens through their elected representatives on the board of education and not by political parties and that the elections of board members shall be on the basis of educational issues and not partisan considerations. That aim is certainly broken down when a referendum oil a school question is placed on a general election ballot and candidates for political office campaign on the issue raised by the referendum.
We are certain that this particular referendum question does constitute a prohibited intrusion, under the principles we have stated, in school district affairs by a body which has no business intermeddling with them in the slightest degree except as the legislature has permitted. The question itself is vague and somewhat meaningless in asking whether any action to effect deconsolidation should be “considered.” It would appear that the whole matter has already been very thoroughly considered by the study committees. If we construe it really to mean “should any action be undertaken” or “should legislation be sought” to effect deconsolidation, the situation is made no better for, as we have said, the local governing body is not empowered in any way to seek or take any such action in the field of school affairs. As reasons for their respective positions we are urged on the one hand by plaintiff that an affirmative referendum vote would hamper educational administration until the matter of deconsolidation was finally settled and on the other hand by the borough that no real harm can come because a favorable vote would not in and of itself bring about deconsolidation or an intrusion in school affairs and might ultimately benefit Westwood’s citizens and that the people should have a right io express their sentiments as to which a court should not interfere. We do not consider that such arguments by either side are of importance in arriving at our decision. As we have pointed out, the issue before us is much more fundamental and must be determined on the broad and basic plane. 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.
It is suggested to us that a legislative intent applicable to the instant situation indicating an exception to the basic principles we have set forth and permitting the present referendum to be sustained is to be found in the broad language of R. S. 19:37 — 1, as amended, providing for non-binding referenda. The language of that section of the election law reads: “When the governing body of any municipality or of any county desires to ascertain the sentiment of the legal voters of the municipality or county upon any question or policy pertaining to the government or internal affairs thereof * * (emphasis supplied), it may adopt an ordinance or resolution to provide for such “at the next ensuing general election.” (We say at this point that we are not called upon to decide whether the statute is broad enough to permit a board of education to call for such a referendum. Offhand it would appear not to do so. There is no comparable or applicable provision in the education law). We are convinced that the quoted section can only be interpreted to mean a question of policy relating to matters in that sphere of government committed by law to and within or related to the powers of the bodjr permitted to call for the referendum. In other words, sentiment can only be asked for with respect to matters concerning or as to which the particular body has the power to act. Any broader inter-,; pretation would open the doors without any restriction and would lead to nothing but confusion and turmoil. It would go far beyond the obvious purpose of the device, i. e., to assist the body calling for the vote in determining the course of action it should pursue on a problem or issue before it and within its jurisdiction. Since here the matter of school district deconsolidation is outside the governing body’s sphere and it could not act in the matter in any way, the language of the referendum statute itself furnishes no support to the borough’s position.
Finally, it is intimated that perhaps the mayor and council could lawfully act in the premises in that it has standing to petition the Legislature under N. J. S. A. 1:6-10 et seq. fox the enactment of a special law permitting dissolution of the consolidated district. The cited statute implements the new provision of the Constitution of 1947 (Article IV, Section VII, paragraphs 9 and 10) allowing the passage of private special or local laws regulating the internal affairs “of any municipal corporation formed for local government, or of any county” upon petition of the governing body thereof under procedure to be prescribed by general law.
There are two answers to the suggestion. First, the petition procedure is only available or necessary where the proposed law regulates internal affairs. It was long ago held that the creation or dissolution of a municipal corporation, including a school district, did not amount to regulation of the internal affairs thereof and so a special law to such effect was not in violation of the prohibition of the Constitution of 1844 (Article IV, Section VII, paragraph 11). Howe v. Board of Education of Landis Township School District, 72 N. J. L. 158, 163 (Sup. Ct. 1905); Worthley v. Steen, 43 N. J. L. 542 (Sup. Ct. 1881). This holding remains sound today for the provision of the present Constitution is substantially identical in this respect. Article IV, Section VII, paragraphs 8 and 9. The petition procedure is therefore inapplicable. Secondly, and more important, a municipal governing body may only petition for such legislation regulating its internal affairs and not those of another governmental entity over which it has no power. The same interpretation must be given to these constitutional and statutory provisions as we announced in our discussion of the referendum statute and for the same reasons.
The order denying plaintiff’s motion for summary judgment is reversed and judgment is directed to be entered in this court as hereinabove set forth.