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Talty v. Board of Education of School District

Decided: December 21, 1950.

JOHN C. TALTY, PLAINTIFF,
v.
BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF HOBOKEN, DEFENDANT



Proctor, J.s.c.

Proctor

[11 NJSuper Page 123] On September 1, 1939, plaintiff, an honorably discharged veteran of World War I, was appointed medical inspector in the school system of Hoboken by resolution of the board of education. No term was fixed by this resolution nor by any subsequent resolution. Plaintiff served as medical inspector until July 1, 1949, when his appointment was terminated by a resolution adopted by defendant board on June 20, 1949.

Plaintiff was appointed pursuant to R.S. 18:14-56, which, in 1939, provided:

"Every board of education shall employ a competent physician to be known as the medical inspector, and may also employ a nurse, and fix their salaries and terms of office. The board of education may appoint more than one medical inspector and more than one nurse."

In 1947 the statute was amended requiring the medical inspector to be licensed to practice medicine and surgery within the State. P.L. 1947, c. 148, p. 641, § 23. This amendment is not pertinent.

The sole issue in this case, as set forth in the pretrial order, is whether or not the plaintiff has tenure by reason of his status as an honorably discharged veteran under R.S. 38:16-1, as amended P.L. 1942, c. 83, p. 326, § 1.

It has been adjudicated that a local board of education is a non-continuous body of necessity organizing each year and that the board has no power to fix a term for medical inspector beyond the life of the board. Skladzien v. Board of Education of Bayonne , 12 N.J. Misc. 602 (Sup. Ct. 1934); affirmed, 115 N.J.L. 203 (E. & A. 1935). It has also been determined that if the board, in the appointing resolution, fails to fix the term then, in the absence of statute, presently in force, or ordinance or rule under legislative sanction, the term is for one year, being coterminus with that of the appointing power. Evans v. Board of Education of Gloucester City , 13 N.J. Misc. 506 (Sup. Ct. 1935); affirmed, 116 N.J.L. 448 (E. & A. 1936).

If the rulings in the above decisions were controlling at present, it is clear that plaintiff's appointment would be construed as being for a fixed term, and consequently he would be excluded from the protection of R.S. 38:16-1 (Veterans' Tenure Act), as this act does not apply to an appointment for a term "fixed by law."

However, in 1942 R.S. 38:16-1 was amended as follows:

"For the purposes of this section (R.S. 38:16-1) no term of office, position or employment of any person shall be deemed to be fixed by law or coterminus with that of the employing or appointing board or

body by reason of the fact that such person was or is appointed or employed by a noncontinuous board or body; provided, however , that in no event is it intended that this act shall apply to appointments made for a fixed or stated period of time." (P.L. 1942, c. 83, p. 326, § 1.)

Therefore, it is clear that by the above amendment the intent of the Legislature was to nullify the effect of the Skladzien and Evans cases, supra , where the appointee is an honorably discharged veteran and where the statute does not require the appointing power to fix a term and the resolution, appointing him, did not fix a term. Fox v. Board of Education of Newark , 129 N.J.L. 349 (Sup. Ct. 1943); affirmed, 130 N.J.L. 531 (E. & A. 1943). Cf. Burke v. Kenny , 9 N.J. ...


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