For the prosecutors, Samuel Koestler.
For the defendants, Martin P. O'Connor.
Before Justices Trenchard, Daly and Donges.
The opinion of the court was delivered by
TRENCHARD, J. This writ of certiorari brings up for review the judgment of the state board of education, rendered February 7th, 1931, reversing the judgment of the state commissioner of education in a proceeding instituted by C. Helen Regan and others before him.
On February 13th, 1930, there was presented to the Elizabeth board of education a petition, by the "Secondary School Women's Club," alleging that it represented the women teachers employed in certain of the public schools of the city of Elizabeth, and requesting that the local board "immediately comply with and enforce the provisions of an act of the legislature of the State of New Jersey entitled 'An act prohibiting discrimination on account of sex in the employment of teachers,' and known as chapter 238 of Pamph. L. 1925, and passed on March 21st, 1925, by forthwith adopting resolutions fixing the salary of women teachers on the same scale as is and has been paid to men teachers, so that henceforth
there shall be no discrimination based on sex," and demanding that the board "pass proper resolutions for the raising of funds to pay to the women teachers sums of money equal to the difference between salaries paid men teachers since March 21st, 1925, to the present time." The board refused to comply with the petition, and denied that it was violating the statute referred to. Subsequently, and on May 2d, 1930, a petition of appeal was filed with the state commissioner of education by certain individual teachers. On October 4th, 1930, the commissioner rendered his decision in which he held (a) that the claim for salary for years prior to the appeal was without merit and that item was denied; (b) that the board proceed at once to formulate a salary schedule without sex discrimination and pay to the petitioners the difference between the salaries which they had received and that to which they claimed to be entitled under an alleged new schedule from the date of the filing of the appeal. The local board thereupon appealed from that judgment to the state board of education, which, after hearing, reversed the state commissioner of education and sustained the local board. It is this latter judgment which is now before the court on certiorari.
In the view we take of the case it is unnecessary to consider the contention of the defendants in certiorari that the state commissioner had no jurisdiction; and we now proceed to examine the merits of the decision.
Chapter 238 of laws of 1925 (Pamph. L. 1925, p. 669), invoked by the prosecutor declares that "in the formulation of a scale of wages for the employment of teachers * * * there shall be no discrimination based on sex." Throughout the entire controversy the Elizabeth board of education maintained that, since the passage of the act of 1925, it had not "formulated a scale of wages for the employment of teachers."
But the prosecutors contend that the board, in adopting annually reports setting forth the names of the teachers and the salaries they were to ...