For the proscutor, Meyer L. Sakin.
For the respondent, John J. Crean and William J. Shepp.
Before Brogan, Chief Justice, and Justices Parker and Perskie.
BROGAN, CHIEF JUSTICE. The prosecutor of this writ, a teacher in the public schools of the city of Camden, has a rule to show cause why a peremptory writ of mandamus should not issue to compel the Board of Education of the city of Camden to pay him a sum of money which represents reductions in his salary made without authority of law for the "school" years 1937 and 1938. The pertinent facts and exhibits appear in the return by stipulation of the parties.
Prior to the year 1937 deductions in varying amounts had been made in the salaries of the teachers of Camden under and by virtue of chapter 12 of the laws of 1933, and statutes of like import. In other words, this emergency legislative authority to reduce salaries of teachers, &c., was extended from year to year up to 1936, the last such statute having been passed in that year (chapter 27, page 42). Thereafter no legislative authority was extant to reduce salaries as theretofore, the several statutes having spent themselves by limitations stated in each of them. Nonetheless deductions were ordered for 1937 and again for 1938 by resolutions of the Board of Education. The teachers affected protested and filed complaint with the Commissioner of Education asking that these resolutions be annulled. The commissioner held that the Board of Education was without authority to reduce the salaries of tenure teachers such as relator, subsequent to July 1st, 1937, and that any resolution of the Board of Education to that effect was invalid. The State Board of Education affirmed and our Supreme Court, having allowed certiorari, likewise found the resolutions passed to accomplish these salary reductions for the years 1937 and 1938 invalid. (Cf. Steck v. Board of Education of the City of Camden, 123 N.J.L. 158.) The Court of Errors and Appeals affirmed the judgment of the Supreme Court (Cf. Steck v. Board of Education of the City of Camden, 124 Id. 132).
The respondent, in resistance to the prosecutor's application, argues in its brief, (1) the Board of Education had no authority to do the acts sought to be commanded, i.e., raise funds to reimburse the teachers for these unlawful deductions; (2) the rule is not directed to the disbursing officer and the Board of Education as such has no authority
to pay out money; (3) the relator has received money in prior years in excess of the amount to which he was then entitled and the Board of Education should be permitted to set-off such amount in the suit for salary; (4) the tenure rights of relator, the amount of his contractual salary, or the amount due him have not been determined in a prior litigation and are not res judicata; (5) the amount of relator's claim has not been fully determined and his right is not indisputably clear, and (6) the relator has not exhausted the remedies provided by the school law.
Under the first point it is said that the rule to show cause is directed to the Board of Education of the city of Camden and that under it the prosecutor asks a peremptory mandamus "commanding and enjoining the Board of Education of the city of Camden to make an assessment, levy and collection of and to appropriate and pay to the prosecutor a sum * * * of money" sufficient to reimburse the prosecutor for the amount deducted by virtue of the two mentioned resolutions. The argument is that the Board of Education cannot make an assessment or levy and cannot collect or appropriate money; that therefore it cannot obey the mandate of such a writ. The Board of Education does not say that it has not the money but rests its argument on the fact that by the wording of the rule a writ is sought carrying the mandate that the board make an assessment, &c., which it says it has no power to do. The Board of Education, however, may borrow against its appropriation for an ensuing year and it may include, in its next application for funds to the Board of School Estimate, the amount so borrowed. R.S. 18:6-58.
The stipulation of facts shows that Mr. Steck, in 1936, was paid a salary of $2,800 a year by the Board of Education, which salary apparently still obtains. That compensation was illegally reduced by a definite sum (i.e., ten per cent.) in 1937 and again (by five per cent.) in 1938. The amount due is clear, liquidated, undisputed, and the ability of the Board of Education to pay it is unrestricted.
The next point -- that the rule is not directed to the disbursing officer -- has no substance. The ...