(dissenting). The courts of New Jersey have never been called upon to.decide the specific question whether a municipality has authority to control the location of a public school by means of a zoning ordinance. In my judgment no such authority exists and therefore the provision of the Ho-Ho-Kus ordinance barring such schools from the R-l residence zone is ultra vires and invalid. Thus, it cannot operate as a preventive measure against the Ho-Ho-Kus Board of Education. Consequently, the provision, if effective at all, undertakes to exclude only private schools from the zone. Such exclusion of private nonprofit high schools constitutes discrimination contrary to the intent and spirit of N. J. S. A. 40:55-33.1, L. 1961, c. 138, and is therefore void.
But even if the statute were not in existence, so far as the plaintiff is concerned, the result should be the same. If public schools are not or cannot be banned from a residence district under a municipal ordinance, I do not believe a nonprofit private school can be excluded. See Brandeis School v. Village of Lawrence, 18 Misc. 2d 550, 184 N. Y. S. 2d 687 (Sup. Ct. 1959); In re O’Hara, 389 Pa. 35, 131 A. 2d 587 (Sup. Ct. 1957); Diocese of Rochester v. Planning Board, 1 N. Y. 2d 508, 154 N. Y. S. 2d 849, 136 N. E. 2d 827 (Ct. App. 1956); Catholic Bishop of Chicago v. Kingery, 371 Ill. 257, 20 N. E. 2d 583 (Sup. Ct. 1939); City of Miami Beach v. State ex rel. Lear, 128 Fla. 750, 175 So. 537 (Sup. Ct. 1937). And an attempt to ban the latter would be arbitrary and discriminatory.
*568Education of our children has a place at the summit of community activities. Article VIII, § IV, paragraph 1 of the New Jersey Constitution imposes a mandate' on the Legislature to provide for the maintenance and support of a thorough and efficient system of free public schools. Obedient to the directive, the lawmakers have legislated extensively in the field of both publicly and privately furnished education. A state board of education has been created and invested with broad supervisory power over all aspects of education. N. J. S. A. 18:2-1, 18:2-4. Likewise school districts were established throughout the State (see, e. g., N. J. S. A. 18:5-1.1), and provision made for appointment or election of boards of education to control and regulate the manner and means of furnishing of education therein subject to the overall supervisory authority of the state board. R. S. 18:6-1 et seq., 18 :7-1 et seq.
A local board of education is an independent, autonomous corporate instrumentality of government within its territorial limits. As such, within its sphere of operation, it is not subject to the will or direction of the governing body of the municipality in which it functions, except to the extent that interdependence or connection has been imposed by the Legislature, either expressly or by inescapable implication. Gualano v. Bd. of Estimate of Elizabeth School Dist., 39 N. J. 300, 303 (1963).
Local boards of education have power to do all things necessary for the lawful and proper conduct, equipment and maintenance of the public schools of the district. See, e. g., R. S. 18:6-17. And they are empowered to acquire land by purchase or condemnation for the purpose of building schools. N. J. S. A. 18:6-24, 18:7-74, 18:7-110. The power to purchase or condemn is nowhere made subject to zoning ordinances, nor can there be found any restriction on the location of property within the municipal boundaries which may be acquired for the purpose. In fact, in some situations the board may purchase or condemn up to 25 acres for such purpose “in any municipality or municipalities adjoining the *569[school] district.” N. J. S. A. 18:7~74. Absent some limitation, it must follow that land in any residential area of the particular municipality is subject to condemnation. In State v. Ferriss, 304 S. W. 2d 896 (Mo. Sup. Ct. 1957), the school district sought to condemn a 32.26-acre tract in the City of Ladue as the site for a new school. The land was in a district zoned exclusively for residence. The school district had been given power by the legislature to condemn property for schools in much the same language as the New Jersey statute. The Supreme Court of Missouri held the zoning ordinance inapplicable. It said that clearly the school district was vested by express grant from the legislature with the absolute power to select, locate and procure the site in question by condemnation. And the court declared the authority of a municipality to abrogate state law is never implied or inferred. “It is only derived from express grant, never from a general grant of power. A state policy may not be ignored by a municipality unless it is specifically empowered so to do in terms clear and explicit.” Since no such specific grant of power was shown, the city could not by its “zoning regulation prevent the location of a school within its borders and thereby prohibit the performance by the school district of the duty imposed upon it by law.” 304 S. W. 2d, at p. 902.
Here it may be noted that in our State (subject to R. S. 18:14-5, not here pertinent), school districts are under a mandate also to provide suitable public school facilities and buildings. R. S. 18:11-1. They are subject to sanctions if they fail to do so. N. J. S. A. 18:11-2; and, see Durgin v. Brown, 37 N. J. 189 (1962); Board of Educ. v. Atwood, 73 N. J. L. 315 (Sup. Ct. 1906), affirmed 74 N. J. L. 638 (E. & A. 1907).
Further legislative indications that boards of education are not bound by zoning ordinances are to be found. Such boards are not required to obtain municipal approval of their plans and specifications for construction of a school; nor do they have to seek a building permit from municipal authorities. N. J. S. A. 18:11-11; Kaveny v. Board of Comm’rs., 69 *570N. J. Super. 94 (App. Div. 19131), certif. denied 36 N. J. 597 (1962). Standard plans and specifications for school buildings are drawn at the state level. R. S. 18 :11-6. Plans and specifications for a new public school must be approved by the state board of education and, once approved, cannot be changed without state board permission. N. J. S. A. 18 :11-8. Local plumbing codes do not apply to public schools. Kaveny v. Board of Gomm’rs., supra. Moreover, the State Commissioner of Education is authorized to order the making of physical changes in school buildings at any time. R. S. 18:11-12. The statute contains no language suggesting that limitations of a zoning ordinance could stand in the way of such changes. And, finally, the board of education may overrule any action of a municipal planning board with respect to the location of a public school. N. J. S. A. 40:55-1.13; and cf. Opinion, Attorney General, 1954, No. 8. Such action at best would be advisory and not binding on the board. Town of Atherton v. Superior Court, 115 Cal. App. 2d 417, 324 P. 2d 328 (D. Ct. App. 1958).
In passing it may be noted as of particular pertinence here (since we are concerned with the proposed establishment of a high school) that as far back as 1911 the Legislature gave the State Board of Education authority to withhold approval of the location of any “secondary school.” L. 1911, c. 231. Such a school is an intermediate one between the elementary grades and the college or university. Webster’s New International Dictionary (2d ed. 1949), p. 2260; N. Y. Education Law, § 2. That statute has been continued in force unaffected throughout the years of the developing zoning concept and was retained in the most recent revision. L. 1954, c. 81; N. J. S. A. 18:2-4(h). Thus, at least the state board would seem to have the power to veto a site selected by the local board of education for a secondary school. Suppose the vetoed site were the only one available in the only zone where schools were permitted under a municipal ordinance, and a school was needed in the community. Is it conceivable that a prohibition against schools even in the most *571highly restricted residential zone could stand in the way of a school there? Incidentally, the veto power appears to be a broad one and undoubtedly should be considered adequate to permit the state board to deal reasonably with matters such as area of plot in relation to size of school, play yards, sidelines and front and rear setback lines.
The foregoing demonstrates convincingly that the Legislature has not empowered a municipality to bar a public high school from its most highly restricted residential zone. Or, to put it another way, the lawmakers have not withdrawn or withheld from local boards of education the authority to exercise their own independent judgment as to where their schools shall be located. Certainly the authority has not been withheld or withdrawn expressly so as to permit local zoning power to interfere. I believe Judge Conford was on sound ground when he said in Trinity Evangelical Lutheran Church v. Board of Adjustment, 72 N. J. Super. 425, 431 (App. Div. 1962):
“Certainly a board of education could not have been denied leave to establish a public school at this location on either the theory that it was detrimental to the public health, safety and general welfare, or not reasonably necessary for the convenience of the community.”
(The extent to which the local board of education may be subordinate to the state board as to the location of secondary schools, by virtue of N. J. S. A. 18:2-4(h), or as to the location of elementary schools under the broad statutory grants of power to the state board, need not be decided.) New Jersey is therefore in tune with the weight of authority throughout the country. See 1 Rathkopf, Law of Zoning and Planning (3d ed. 1964), p. 18-1 et seq.; Basset, Zoning, pp. 31, 196 (1940); 2 Metzenbaum, Law of Zoning (2d ed. 1955), p. 1455; 2 Yokley, Zoning Law and Practice (2d ed. 1953), § 247, p. 141; Note, “The Immunity of Schools from Zoning,” 14 Syracuse L. Rev. 644 (1963).
The majority opinion says in effect that chapter 138 of the Laws of 1961 is inconsistent with the idea that the author*572ity of local boards of education to locate their schools is paramount to the zoning power of the municipality. I agree that the statute may be somewhat ambiguous. Its meaning is not uncertain, however. One light which floods all of its recesses and illuminates the legislative intention beyond doubt is that the lawmakers wanted no discrimination between public and nonprofit private schools in the matter of their location in a municipality.
Moreover, I cannot agree that the statute obviously was drawn on the thesis that a municipality may zone as to public schools. Its text seems just as consistent with the thesis that since public schools are not subject to zoning restrictions, a municipality should not discriminate against nonprofit private schools by means of planning or zoning restrictions affecting them alone. Note, also, that the statute invalidates discriminatory ordinances “heretofore” adopted, as well as forbidding all new ones of like tenor. Undoubtedly the Legislature was aware that some municipalities, unsure of their zoning power, vis-a-vis the school board in the absence of definitive judicial decision, had assumed to zone with respect to schools. And so it employed the terse language of the act to express its anti-discrimination idea. That it did not use crystal clear expression ought not to stand in the way of the accomplishment of its intention. Public policy favors nonprofit private schools. That is the reason for their tax-exempt status. With that policy in mind, doubts engendered by words or contextual arrangement ought to be resolved in favor of an interpretation preventing discrimination against such schools.
Since the Ho-Ho-Kus ordinance as a matter of law cannot apply to public schools, its effect is to prohibit nonprofit private schools in the R-l residence district. Discrimination is thus apparent and must be considered as within the condemnation of L. 1961, c. 138. More .than this, the exclusion of schools from the district appears to have been aimed at plaintiff’s high school. The borough’s brief says “there never will be sufficient children of high school age within the Borough *573so as to permit it to erect its own high school.” The amendment to the ordinance drawn with that knowledge in mind, and adopted hy the governing body when plaintiff was actively seeldng to build its school, rendered lip service to equality of treatment by ostensibly barring public as well as private schools from the zone. But, in fact, it rendered actual service to the cause of discrimination.
But, even if the 1961 anti-discrimination act did not exist, the contested part of the ordinance would have to be invalidated as to plaintiff. Accepting the premise which I consider unavoidable, that location of public schools is not subject to municipal zoning, the attempt to prohibit nonprofit private schools in the R-l zone, where public schools may go in the discretion of the board of education, is discriminatory and arbitrary. In order to subject private property to zoning, the restriction imposed must bear some substantial relation to the health, safety, morals or general welfare of the community. In this connection it seems fair to say with respect to zoning that public schools and nonprofit private schools involve substantially the same considerations. Private schools operated for profit may present a different question from a zoning standpoint. Perhaps such institutions may be considered as establishing a business use in a residence zone. That problem is not before us. On the record of the present case, however, the various reasons advanced by the borough for excluding schools from the area would apply equally to a public high school. Generally speaking, they are: increased traffic, need for widening roads in the school area, interference with the tranquillity of the residence area, alleged depreciation of other property in the zone, probable need for increased fire and police protection, loss of tax revenue, and other claims of possible increased municipal burden. In view of the intense public interest in education, whether the schools furnishing it are publicly operated or privately run under a curriculum approved by state authority, the objections urged against the high school do not bear a sufficiently important relation to the public health, safety or welfare to justify the limitation *574sought to he imposed on the desired use of plaintiff’s property.
In Diocese of Rochester v. Planning Board, supra, a zoning ordinance of the Town of Brighton barred a nonprofit private school from the Class A residential zone unless a permit was granted by the planning board. The Diocese sought and was denied permission to build a parochial school in the district. The Court of Appeals of New York reversed the denial, saying among other things:
“The text writers agree that churches and schools should be allowed in Class A residential areas which are usually the quietest and least congested areas of a town. * * * It is well established in this country that a zoning ordinance may not wholly exclude a church or synagogue from any residential district. Such a provision is stricken on the ground that it bears no substantial relation to the public health, safety, morals, peace or general welfare of the community. * * * An ordinance will also be stricken if it attempts to exclude private or parochial schools from any residential area where public schools are permitted. * * ®” 154 N. Y. S. 2d, at p. 858, 136 N. E. 2d, at p. 834
After referring to a number of cases, the court held that objections to establishment of the school based upon alleged adverse effect on property values, decreased enjoyment of neighboring property, traffic hazards and loss of potential tax revenue as a matter of law were not sufficient to warrant the action of the planning board. Among other things, the opinion indicated also that it is not a proper function of government to interfere in the name of the public to exclude schools from residential districts for the purpose of securing to adjacent landowners the benefit of exclusive residential restrictions. With respect to loss of tax revenue, it pointed out that the Constitution had exempted such institutions as churches and nonprofit schools from taxation. And it said:
“Thus the paramount authority of this State has declared a policy that churches and schools are more important than local taxes, and that it is in furtherance of the general welfare to exclude such institutions from taxation. This being the case, it cannot be seriously argued that the decision of respondents denying this permit because of a loss of tax revenue is in furtherance of the general welfare.
*575Thus church and school and accessory uses are, in themselves, clearly in furtherance of the public morals and general welfare. The church is the teacher and guardian of morals, * * * and ‘an educational institution, whose curriculum complies with the state law, is considered an aid to the general welfare.’ * * * These proposed structures will not interfere with the public health, nor can they be said to be a danger to the public peace or safety; * * *” Id., 154 N. Y. S. 2d, at p. 861, 136 N. E. 2d, at pp. 836-837.
In conclusion, the action of the planning board was held to “bear no substantial relation to the promotion of the public health, safety, morals or general welfare of the community.” Therefore, it was deemed arbitrary and unreasonable and was ordered annulled.
In Brandeis School v. Village of Lawrence, supra, the zoning ordinance was amended to exclude public and private schools from certain residential districts of the village. Plaintiff sought to establish its school in one of the residence districts in three buildings, two already in existence and a third to be constructed. It was to be a nonprofit school of elementary grades, with a secular curriculum approved by the state education authorities, and a religious curriculum as well. The students were to be drawn from five surrounding towns.
The proof showed, among other things, that the last public school built in the village was a high school in the same district as plaintiff’s property. Plaintiff contended that when the high school was completed, the public school needs of the village were met and then the zoning ordinance was amended to keep out all private schools. It urged from the sequence of events that although ostensibly the amended ordinance treated public schools and private schools alike by banning both from the district, in reality it discriminated between public and private schools by excluding the latter when it was no longer necessary to malee provision for public schools. (Mention is made of this factual situation because it is analogous to the course taken by Ho-Ho-Kus in adopting the amendment in dispute here.)
*576The trial court declared the amendment invalid saying that it bore no such substantial relation to the public welfare in the zoning sense as would justify its adoption. Possible disadvantages which might be visited on the neighborhood were treated as outweighed by the social value of the institution.
In addition, reference was made to the holding of the Court of Appeals in the Diocese of Rochester ease, cited above, that an ordinance will be stricken if it attempts to exclude parochial schools from any residential area where public schools are permitted. And the court said:
“While it may well be, as defendant’s counsel has painstakingly shown, that public and private schools have many characteristics which distinguish them from one another organizationally, these differences are not of sufficient importance, in the light, of our highest court’s expressed views, to justify different treatment in a zoning ordinance. Therefore, the Court finds that the ordinance in question discriminates against private schools.” 184 N. Y. S. 2d, at p. 697.
In Board of Zoning Appeals v. Schulte, 241 Ind. 339, 172 N. E. 2d 39 (Sup. Ct. 1961), the zoning ordinance provided a church or school could not be built in the residence zone unless the Board of Zoning Appeals found it to be on a lot so located that the building would “substantially [serve] the public convenience and welfare and [would] not substantially or permanently injure the appropriate use of the neighboring property.” The Archdiocese of Indianapolis desired to build a church and parochial school on property owned by it in the residence district of Meridian Hills. The Board of Zoning Appeals denied permission.
The denial was based upon evidence that property in the neighborhood would be depreciated if the church and school were permitted. The Supreme Court of Indiana, in reversing the board, said zoning ordinances must support their validity in the police power of the state, which can only be exercised in the general public interest of safety, health and morals, and that the right to use private property could not be restricted except upon that basis. And “[i]t was never intended that *577zoning laws should be used for the purpose of creating special privileges or private rights in property which result from creating an exclusive community.” 172 N. E. 2d, at p. 43.
Apparently the board’s refusal gave some recognition also to the contention that the proposed facilities should be located on another street (where the court pointed out, the traffic was heavier) in order not to disturb the neighborhood where the traffic was admittedly lighter. The Supreme Court rejected that reason as invalid saying:
‘‘Traffic safety, particularly for children, is a matter of general public concern and far outweighs the private interest involved in a quiet neighborhood. It likewise occurs to us that the fact that the 75th Street area might be one in which families with few children or no children are to be found, could not be made the basis for excluding from such area projects of public welfare, such as the church and facilities, in which children are involved. To exclude children’s activities by zoning restrictions from [such] areas would appear to us to be the converse of what is normally considered general public welfare.
* * * We do not feel that any zoning board may zone on the basis that children are undesirable in certain areas and that families without children should be protected against such intrusions.” 241 Ind. 339, 172 N. E. 2d, at p. 42.
The court not only adjudged invalid the action of the Board of Zoning Appeals but indicated also that if the ordinance simply banned a church and school from the zone without providing for the review by the board, denial of a variance would be invalid. 172 N. E. 2d, at pp. 44-45.
The majority opinion here remands the case for a determination whether the amendment to the zoning ordinance constitutes arbitrary action. It seems to me that on the extensive factual record made below and the authorities I have cited, as well as Trinity Evangelical Lutheran Church v. Board of Adjustment, supra, the borough’s action was clearly arbitrary. Under the circumstances, that decision should be made by us now.
For the reasons stated, I believe the ordinance is invalid as to the plaintiff, and that the judgment of the trial court should be affirmed.
*578The majority opinion indicates that, upon the remand ordered, plaintiff is not precluded from applying for a variance to the appropriate local authority and, if the result is adverse, join an attack thereon with the present proceeding. Although I have expressed the conviction that as a matter of law plaintiff is entitled to favorable judgment now, manifestly, in view of the majority holding on the issue before us, pursuit of a variance would be feasible. In that case, however, on the record before us, the right to a variance is obvious, subject only to the question whether in the discretion of the board of adjustment the grant should be made subject to any reasonable conditions relating to front and rear setback lines, side yards, play areas, etc. Andrews v. Ocean Twp. Board of Adjustment, 30 N. J. 245, 248 (1959).
N. J. S. A. 40:55-39(d) authorizes the granting of a variance for “special reasons.” On the thesis that such reasons existed, this Court in Andrews approved allowance of a variance for establishment of a parochial school in a residential district zoned against it. We found “no infirmity” in the circumstance that the children to attend the school would be drawn from neighboring communities as well as from Ocean Township. Cf. Trinity Evangelical Lutheran Church v. Board of Adjustment, supra; Brandeis School v. Village of Lawrence, supra. We said also that the school not only involved no “detriment to the public good,” but in fact served the public welfare. 30 N. J., at pp. 249, 251.
For reversal — Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Sciiettino and Haneman — 6.
For affirmance — Justice Francis — 1.