For the prosecutor, John Trier and Samuel W. Boardman, Jr.
For the respondent George W. Davies, Spaulding Frazer.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The sole question presented for determination is whether the respondent Dr. Davies, as medical inspector in
the school system under the jurisdiction of prosecutor, held an office or position within the provisions of chapter 29 of the laws of 1929 (Pamph. L. 1929, p. 57), protecting, among others, the holder of a "position or office under the government of this state, or the government of any county, city, town, township, or other municipality of this state, including any person employed by a school board or board of education, * * * whose term of office is not now fixed by law, * * * who has served as a soldier, sailor or marine, in any war of the United States, or in the New Jersey state militia during the period of the World War, and has been honorably discharged, * * *" against removal from "such position or office except for good cause shown after a fair and impartial hearing." The tenure is "during good behavior." On September 5th, 1933, Dr. Davies, who had served in this office for many years, was removed, and another appointed in his place. The state commissioner of education answered this inquiry in the affirmative; and the state board of education affirmed the judgment. The local board of education thereupon sued out a writ of certiorari.
The challenged judgment is erroneous. Dr. Davies held the office in question for a term prescribed by law, and he was therefore not within the statutory class. Section 229 of the act establishing our public school system, as amended, ordains that "every board of education shall employ a competent physician to be known as the medical inspector, and may also employ a nurse, and fix their salaries and terms of office." Pamph. L. 1931, p. 143. In Skladzien v. Board of Education of the City of Bayonne, 12 N.J. Mis. R. 602; 173 A. 600, this court held that, in virtue of this provision, "a new board comes into being each year," and that there is vested in each succeeding board the "prerogative of appointing a medical inspector of its own selection."
Counsel, while criticizing the interpretation thus placed upon the statute, seeks to distinguish this and the instant case. The attempt at distinction would seem to be in vain; but we need not pursue either inquiry. There is no factual basis for Dr. Davies' claim that he is within the statutory
class. He was, in fact, appointed to the office in question for a fixed term of one year. With one or two exceptions, according to the board's minutes, he was reappointed annually during the term of his service. He was first retained in 1917; the minutes are silent as to the term of his appointment. On November 7th, 1918, he resigned to enter the nation's military service. On January 31st, 1919, he received an honorable discharge from the service; and, on February 6th, 1919, he was "reappointed medical inspector for the balance of the term." It is evident that the reference is to the school term. On August 4th, 1921, he was " re-engaged as medical inspector for the coming school year at salary of $400 a year;" on April 25th, 1922, he was " re-engaged as medical inspector at salary $400 per year;" on August 21st, 1924, he was " re-engaged at salary of $60 per month for ten months;" on March 23d, 1927, he was " reappointed school physician;" on March 1st, 1928, he was "nominated and elected school physician." On March 25th, 1929, the teachers committee was empowered to "engage Dr. Davies as school physician;" and on March 6th, 1930, he was "elected school physician." The minutes have this item under date of March 19th, 1931: "On individual motion the following were elected: * * * school physician, George W. Davies." And the final appointment was made in 1932. The minutes contain the following entry: "Mr. Ludlum was elected vice-president; Mr. Little, clerk; Mr. Myers, custodian; Mr. Stech, janitor; Dr. Davies, physician." All "were elected on individual motion." Under date of June 1st, 1933, this item appears: "Teachers committee recommended Dr. Davies be not re-engaged as school physician." The pertinent provisions of the minutes for the years 1923, 1925 and 1926 make mention only of the salary to be paid to Dr. Davies.
The minutes thus clearly evince the board's purpose to make the final appointment the customary annual one for a fixed term. It is hardly open to question that, in these circumstances, all parties understood that Dr. Davies held his office, during the entire period, in virtue of annual ...