For the prosecutor, Edward Lukacsko (Richard J. Baker, of counsel).
For the respondents, Charles Bernstein.
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The basic question requiring decision in this case is whether the State Board of Education erred in its determination that respondent school teacher was not barred by her laches to assert her right to be reinstated in her position and to be paid the back salary due to her from the date of her illegal dismissal by the Board of Education of the City of Garfield.
The facts which give rise to the stated question are stipulated. In light of the defenses interposed (laches) a detailed statement of the facts and procedure followed becomes necessary.
Respondent Beatrice Fish Rosenthal has been for the past eleven years, and presently is, a duly licensed school teacher
in and for this state. She is the possessor of a proper and effective teacher's certificate (N.J.S.A. 18:13-2), and has acquired tenure. N.J.S.A. 18:13-16. She was employed by prosecutor as a permanent teacher on September 3d, 1929, and thereafter continued to be so employed, save as to leaves of absence granted to her for the school years 1936-1937, 1937-1938, 1938-1939 and 1939-1940, until November 1st, 1940, when, without any charges having been preferred against her (N.J.S.A. 18:13-17), she was advised by prosecutor that her services were terminated. She was dismissed, and her position, as a teacher of English in prosecutor's high school, at the salary of $1,350 a year, was given to one Frances Casella, a fellow teacher. Prosecutor's action was based upon the grounds that it "was due to a natural diminution of the number of pupils in the school district" and that although others of its teachers were teaching grades and subjects for which respondent is certified, that respondent "had a lesser term of service to her credit than either the teacher who replaced respondent or any other teacher employed in [its] high school." N.J.S.A. 18:13-19.
Respondent immediately (November 1st, 1940) protested, in writing, prosecutor's action. She likewise promptly caused her protest to be brought informally to the attention of an assistant to the State Commissioner of Education (Cf. N.J.S.A. 18:3-2 and 18:3-14) who, as it appears in the stipulation, without objection, suggested that no formal petition of appeal be filed with his office because the issue involved in this case was the same as that which was involved in the case of Briefstein v. Board of Education of the City of Garfield, then pending before him, and that respondent stipulate with prosecutor that it waive the defense of laches pending disposition of the aforesaid case and the case of Bernstein v. Board of Education of the City of Garfield.
On December 6th, 1940, respondent and her counsel appeared before prosecutor. Reading between the lines, the parties were not in accord as to the method of computing the length of service rendered by respondent. To the end of avoiding the costs and expense of this suit, which ...