The evening star and Newark advertiser. [volume] (Newark, N.J.) 1907-1908, 1907-12-30
SCHOOL
BOARD GETS
BLACK EYE
CONTINUED from First pnge.)

- ~ 80
retain their offices. AS such they have a
remedy by quo warranto and do not need
the writ now asked for. Their application
ought therefore to be scanned carefully,
and the reasons for it ought to be cogent
TO induce the our to eXercies its discre-
ton in their favor.
The reasons do not seem to me such Is
would be likely to lead to the setting
aside OF the proceedings sought to be re-
viewed.
Il. The objection tina the school law Is
Unconstitutional because 1t creates an APP
pointive board of estimate with power to
fix the amount to be raised by taxation,
rests on a misrepresentation of the opinion
In township Of Bernards VS.. Allen. The
objection there was not that the board
was appointiye, but that 1t was appointed
by the Governor. a power quite beyond
the control Of people OF the township who
had TO pay the taxes. Justice Depue. in
his opinion, expressly stated that for local
purposes the local authorities are the
representatives of the people. and the OBJ
lection which he found TO be fatal to the
act then under review vas that 1t did not
purport TO confer the power Of taxation
on local municipal bodies. He did not inti-
mate that II the power had been conferred
on a local body 1t would ave made any
difference whether that local body was APP
portant to secure was local control OF the
local taxing authority; it was of compara-
lively minor Importance whether that
local control was direct. as In the case
49, VI ' az III INT
case OF an appointive body. At the time
or that decision the Legislature Of 1891,
creating an appolntive board of street and
water commissioner in f1rst-class cities,
with extensive powers, was still recent
ana must have been In the mind of the
1uuge' but there is no intimation that the
powers conferred upon that board were be-
yond the constitutional right of the Legis-
lature. The school law of 1902 contained a
ike provision for a board of school estI-
mate nut although the constitntionality Of
mat act was thoroughly debated in the
courts. there was nc suggestion that this
particular feature was obnoxious 10 INV
constitutional provision. 80
= The objection that the school law
provides for the education of children he
tween the ages OF 5 and 20 years. while the
constitution requires that the legislatures
shall provide for the Instruction of children
neeween . ana il only, does not appeal TO
the constitution TO forbid the Legislafure
from providing for better school facilities
man the constitution Itself requires: the
schQol fund Is. devoted TO the support of
public free schools for the equal benefit
or al the people OF tho State, and Is not
limited to children between 5 and Is wears
Of age. The question seems to me TO
have been settled by Rutgers College v.
Morgan.
20. Further reflection has convinced me
that the objection arising out of the use
Of voting machines is also without force.
No doubt. voting machines were not i'm
contemplation Of the trainers of the con-
Stltution, and there are expressions In
that instrument which might be held to be
Inconsistent with the use Of voting ma
chimes. but the question here involved is
the validity OF a referendum. such Il de-
vice Is a matter of ordinary legislation,
aside from the creation of a State debt or
the amendment of the constitution itself,
was as much outside the contemplation of,
the trainers Ns a voting machine, and l
see no reason why the Legislature In
adopting the new extra-constitutlonal de-
vice OF a referendum, may not surround
1t with such conditions as the Legislature
deems best. When the school law of
1903 was framed. the act providing for vot-
books for more than a year, and the refer
endum was necessarily such r referendum
as existing statutes permitted. Even IL
chimes were unconstitutional. SO FAR as
concerns voting for officers, it might still
be effective for the purposes of a refer
endum; just MS the act of 1887 giving
women the right 10 vote at school meet,
ings, although not effective as to the
choice of officers, was held to be effective
a Is b 10 me T F gebool 70 p y9 ! to Ma sppmro 81 vrooni
509-513. The court must always strive to
sustain the constitutionality OF an act of
the Legislature.
comes too late. The election has been held,
and 1t would be detrimental to the public
interest to have the validity of the
voters challenged at this late day.
u have also examined the other reasons
which were not elaborated at the oral
argument, but find In them nothing which
leads me TO think ! ought ito allow this
writ. l therefore decline to allow it,"
Chandler w. Riker, who made the
fight for the old board, received a
copy of the opinion 500 after II left
the hands of the stenographeFs. When
asked what steps. If any, he would
AXE next, he said that he vas not
prepared to say, but intlmated that IL
the old board wanted to contest the
right of the seating of the new board.
1t was "up to" the former to say SO.
Many think the denial of the writ
will end the matter.
The members of the large board who
have been identified with the fight may
again ask for a writ Of certiorari on
grounds not mentioned In the first appllca-
ton. or may institute quo warranto pro-
ceedings to prove that the members OF
the small board are not legally in office.
AT the time the present fight was started
1t was understood that II the application
was denied the fight would be dropped.
and this may kill the plans to effect re-
organization OF the large board at mid
night tomorrow, so as to have precedence
Of the small board in organization. If re-
Organization is effected then the posi-
bility Of the fight being carried further is
probable. II the funds can be secured.
A number of the commissioners in the
fight have denied that they have given any
money to carry on the legal battle, and IL
the matter goes further there is the possi-
bility of the question as to the source of
the funds being asked.
City Counsel James r.. Nugent has not
been officially notified OF the result OF the
application Nfor the writ, nor have the
ofbpr members NJ tho cIfv law denarfmonf