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Fraser v. State Board of Education

New Jersey Supreme Court


Decided: January 24, 1946.

THOMAS A. FRASER ET AL., PROSECUTORS-APPELLANTS,
v.
STATE BOARD OF EDUCATION AND BOARD OF EDUCATION OF JERSEY CITY, RESPONDENTS

On appeal from the Supreme Court, whose decision is reported in 133 N.J.L. 15.

For the appellants, Eisenberg & Spicer.

For the respondents, Robert H. Doherty.

Parker

[133 NJL Page 597]

The opinion of the court was delivered by

PARKER, J. The Supreme Court in the present litigation rested its decision on the prior case of Greenway v. Board, 129 N.J.L. 461, a decision of this court. The present case is submitted on briefs without oral argument, and counsel

[133 NJL Page 598]

for appellants in their brief frankly concede that the Greenway case as a precedent stands in the way of a decision in their favor, and as frankly ask that it be overruled. They made the same request to the Supreme Court, which very properly declined to disregard a decision of this court. We are now asked to decide this case contrary to that former decision, and without oral argument.

In State v. Taylor, 68 N.J.L. 276, a decision of this court, the fourth headnote reads: "This court will not revise, much less overturn, a decision made by it, upon a matter which was directly presented for its determination, except upon the fullest conviction that it is erroneous. And it will not do so, even then, when the decision has been so long acquiesced in, and acted upon, that a return to the proper principle would disastrously affect existing interests": and in Freeholders v. Jersey City, &c., Street Railway Co., 85 Id. 179 (at the foot of p. 181), we quoted from Kent's Commentaries as follows: "When a decision upon a point of law has been made upon solemn argument, and upon mature deliberation, the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions by it. When a rule has once been deliberately adopted and declared it ought never to be disturbed by the same court, except for very urgent reasons, and upon a clear manifestation of error," citing also the Taylor case, supra, and Bowman v. Freeholders, 73 Id. 543. The present case does not exhibit any such situation.

The judgment under review will be affirmed.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, DONGES, HEHER, PERSKIE, COLIE, OLIPHANT, WELLS, RAFFERTY, DILL, FREUND, McGEEHAN, JJ. 13.

For reversal -- None.

19460124


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