On appeal from the New Jersey Supreme Court, whose opinion is printed in 15 N.J. Mis. R. 143.
For the prosecutor-appellant, Louis Dworetz (Paul Rittenberg, of counsel).
For the respondents, Harold D. Green.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a judgment of the Supreme Court dismissing a writ of certiorari obtained by the appellant to review her dismissal as a teacher in the public schools of the city of Paterson. For an adequate discussion of the points involved in this case a somewhat detailed exposition of the facts is essential.
In a complaint dated April 9th, 1933, the Guiana Realty Corporation (a company which, among other things, made a business of lending money to school teachers and others with an assured income), by William Sherrill, its president, charged that the appellant, Clara L. Smith, was guilty of misrepresentation and fraud in making application to the company for a loan of $500; that she failed to repay the loan as agreed; that she sent the lender worthless checks; that she stated, in writing, that she was not indebted to anyone save a building-loan association and as endorser on a note for $200, when in fact she was indebted to many persons and institutions; that she attempted to secure a loan of $1,000 from one Walker, representing to him that complainant's loan had been paid when in fact it was not paid. The complainant prayed that Clara L. Smith, because of her "apparent dishonesty, lack of integrity, cunningness, inability to tell the truth, mischievousness," &c., be removed from her position as teacher of the public schools of the city of Paterson "as a person wholly irresponsible and morally unfit to teach * * * the children under her direction."
The board gave appellant a hearing on these charges on April 26th, 1933, and May 10th, 1933, on which later date Miss Smith was ordered suspended until February 1st, 1934, without pay, after which date she might apply for reinstatement. She applied for reinstatement on February 6th, 1934, and on May 10th, 1934, was dismissed. Miss Smith appealed
the judgment of dismissal to the commissioner of education, who, on September 25th, 1934, without considering the merits of the case, held that the dismissal was illegal "for the reason that she did not have a fair trial because one of the board members, who was absent on certain evenings during the trial, participated in adjudicating her case."
The local board of education received the judgment of the commissioner of education at its meeting on October 11th, 1934, and at the same meeting the same charges, redrafted and dated October 9th, 1934, were filed by the complainant. A hearing thereon was held later in the month and Miss Smith was adjudged guilty and dismissed. This judgment, on appeal to the commissioner of education, was affirmed on February 8th, 1935, and on further appeal to the State Board of Education was affirmed on July 20th, 1935, by that tribunal.
The Supreme Court granted its writ of certiorari to the appellant to review the judgment of the State Board of Education. When the writ and the return came into the Supreme Court the respondent moved to dismiss the writ on the ground that before the writ was allowed the prosecutor (appellant) had applied for and received the full proceeds of moneys accredited and available to her in the teachers retirement fund and that, therefore, by her withdrawal of these funds, she acquiesced in the action of the school board in dismissing her, abandoned her status as a teacher, and therefore was estopped from reviewing the adverse judgment affirming her dismissal. The Supreme Court considered that the contention of the respondents was sound and dismissed the writ.
The judgment of the Supreme Court was based on its conception of certain paragraphs of sections 249 and 251 of the School law. Pamph. L. 1919, ch. 80; Rev. Stat., 18:13-37; 18:13-64. These sections read as follows:
"Section 249 (2 * * * Class A) All persons who become teachers after the first day of September, 1919, and whose appointment is made subsequent to the passage of this act, shall become members of the Retirement System ...