For the prosecutor, Robinson & Morris.
For the defendants, Nicholas A. Carella.
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
DONGES, J. This writ of certiorari brings up for review the judgment of the State Board of Education, rendered January 13th, 1940, affirming the decision of the Commissioner of Education in a proceeding instituted by prosecutor, Sylvia Liva, to set aside a resolution of the Board of Education of the Township of Lyndhurst, adopted April 11th, 1939, in and by which increment in salary was granted to elementary school teachers specified in said resolution, prosecutor not being named therein.
Prosecutor bases her claim on the ground that she was excluded because she was a married woman; that increases were granted only to single female teachers, who were under tenure.
Prosecutor asserts that the resolution in question violates the provisions of R.S. 18:13-10 (enacted as chapter 238 of laws of 1925) which reads as follows:
"No discrimination based on sex shall be made in the formulation of a scale of wages, compensation, appointment, assignment, promotion, transfer, resignation, dismissal, or other matter pertaining to the employment of teachers in any school, college, university, or other educational institution supported in whole or in part by public funds. Where any such school, college, university, or other educational institution is open to members of one sex only, teachers of that sex may be employed exclusively."
In our view this statute is not applicable, because the alleged discrimination was not based upon sex. As a matter of fact, the record discloses that all of the teachers who were granted increases of salary by the resolution in question were females, no increases having been granted to male teachers; and not all of the single teachers were given increases, as appears by the testimony of the clerk of the board. He testified
that the resolution did not provide increases for eight single female teachers in the low bracket of salary and one male teacher.
It appears conclusively from the record that there was no discrimination by reason of sex in the action of the board in the fixing of ...