For the prosecutor, George S. Harris.
For the defendant, Richard H. Cashion (Charles M. Myers, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
PORTER, J. This writ of certiorari brings up for review the validity of an order made by the Commissioner of Education which directs the prosecutor, the Board of Education
of the town of Montclair, to comply with the provisions of N.J.S.A. 18:5-68 to 18:5-82.
The statute provides that employes of Boards of Education in school districts in counties of the first class, not otherwise entitled to pensions under any other statute, might associate themselves as a corporation for the purpose of providing and obtaining a fund for their retirement upon pension. The fund to be created and maintained by deductions of three per cent. of the amount of the salaries of members and by contributions by the employing boards of education of four per cent. annually of the amount of salaries of its employes who are members. The statute was originally enacted as chapter 112, Pamph. L. 1929, and was amended by chapter 118, Pamph. L. 1935. Under the original act membership in the pension fund was not compulsory but from and after March 25th, 1935, under the provisions of the amendment of 1935, supra, all persons coming into the employ of any board of education in any school district of the counties of the first class became members of the fund upon employment and were required to contribute to the fund.
The defendant, Board of Education Employes' Pension Fund of Essex County, organized under the provisions of the statute and became a body corporate upon filing its certificate of incorporation on July 6th, 1929, and has since continued as such.
The prosecutor having failed to comply with the provisions of the statute in the matter of making contribution to the fund the proceedings under review were instituted by defendant by petition to the Commissioner of Education which resulted, after hearings, in the order under review of the said commissioner dated August 25th, 1939. It directs the prosecutor to comply with the provisions of the statute and to furnish the defendant the names and salaries of all permanent employes coming into its employ subsequent to March 25th, 1935, to pay to defendant three per centum of the total amount of the salaries paid to such employes and to contribute an amount equal to four per cent. of such total salaries from March 25th, 1935, to said defendant.
The questions raised by this appeal attack the ...