# Durgin v. Brown > Supreme Court of New Jersey · April 2, 1962 · 37 N.J. 189 URL: https://www.frixlaw.com/law-library/cases/9699199 ## Case - **Full name:** 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 - **Court:** Supreme Court of New Jersey - **Decided:** April 2, 1962 - **Citations:** 37 N.J. 189; 180 A.2d 136; 1962 N.J. LEXIS 216 - **Precedential status:** Published - **Opinion:** Concurrence by Ekancis - **Judges:** Weintkaub, Habeman - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699199 ## Opinion text *205 Ekancis, J. (concurring in result). I concur in the result, and in fact with the entire opinion of the Chief Justice, except the portion designated “III,” which plainly goes beyond the needs of the issue before us. That portion declares illegal any effort on the part of a consolidated school district looking toward establishment of a legislative means of making deconsolidation possible, if the effort entails expenditure of money from the education board’s treasury. More particularly, the declaration is that if payment of an attorney’s fee is required in connection with the attempt, such a board of education cannot direct its attorney to prepare for study and consideration by the Legislature a suggested draft of a statute creating some reasonable procedure to restore the independent autonomy of the constituent municipalities and to permit each of them to provide its own school system. The thesis of the majority is that a consolidated board has no authority to use any portion of the moneys contributed by the taxpayers of the municipal partners to bring about or to attempt to bring about its own demise; that such funds must be employed in furthering the educational interests of the whole district and not of an integral part thereof. But it does not follow in all cases and under all circumstances that the interests of the whole district are not served by the advocacy of a legislative plan to permit segregation into independent municipal districts. In fact, the contrary may be true; the interests of the whole in some situations may be better promoted by division into self-governing units. Continuance of the union in perpetuity may be harmful to the whole as well as to the parts. 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 *206 capable of sustaining and ought to have its own school system; that the whole of the district will be benefited by a severance. On learning that the statute is silent as to a means of achieving the desired objective, the members by unanimous vote engage their attorney for a reasonable fee to prepare a suggested form of enabling enactment for submission to the Legislature. Suppose further they agree that the draft shall contain a provision for a referendum on the question in the entire district, and that reasonable safeguards be included for equitable division of existing school property and financial burdens. Under the opinion of the court here, the attorney could not be retained for the purpose—although, if he wished to act without compensation, the board’s action would be legal. 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 *207 pronounced. Suppose a majority of the board in good faith believe that the interest of the district as a whole would be better served by deconsolidation, or, at least, by existence of a means of enabling the people to express a choice on that subject -through the ballot. Under our democratic system of government, control of such boards rests in the hands of the majority of its members. There is no sound reason why, in the honest pursuit of that principle, the majority should be prevented from paying its attorney to draft a reasonable statutory plan which, if approved and adopted by the Legislature, will make possible formal expression of the sentiments of the taxpayers as to continuance or deconsolidation of the school district. Eor 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699199. Public record. Not legal advice.