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Fraser v. State Board of Education

New Jersey Supreme Court


Decided: October 30, 1944.

THOMAS A. FRASER ET AL., PETITIONERS,
v.
STATE BOARD OF EDUCATION AND BOARD OF EDUCATION OF THE CITY OF JERSEY CITY IN THE COUNTY OF HUDSON, A CORPORATION, RESPONDENTS

On application for writ of certiorari.

For the petitioners, Eisenberg & Spicer (Jerome C. Eisenberg).

For the respondents, Robert H. Doherty.

Before Justices Case, Bodine and Porter.

Case

[132 NJL Page 248]

The opinion of the court was delivered by

CASE, J. The question presented on this application, and upon which we find no adjudication in the cases, is whether a

[132 NJL Page 249]

standing schedule of salary increases for teachers, retained on the books by successive boards of education, holds such virtue in favor of tenure teachers who come within its purview as that, the time for increase under the schedule having arrived, such teachers, in the absence of positive action by the board modifying or repealing the schedule, have the legal right to the indicated increase; to which may be added a secondary and incidental question, namely, whether, if such a right exists and is dependent upon a favorable recommendation for an increase as a necessary condition precedent, the recommendation may be arbitrarily withheld.

It was held in Greenway v. Board v. Board of Education of Camden, 129 N.J.L. 461, that "until the accrual, the modification or repeal of the rule so providing does not constitute a reduction of the current salary" and that "a rule providing for increments is a mere declaration of legislative policy that is at all times subject to abrogation by the board in the public interest." But that decision does not, in our view, constitute a complete and precise answer to the questions above propounded, inasmuch as there appears to have been no direct modification, abrogation or repeal. The matter is of public importance. We think it proper, therefore, that an opportunity for court review should be given.

A writ of certiorari will be allowed.

19441030


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