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Thorp v. Board of Trustees of Schools for Industrial Education of Newark

Decided: March 12, 1951.

GEORGE B. THORP, PETITIONER-APPELLANT,
v.
THE BOARD OF TRUSTEES OF SCHOOLS FOR INDUSTRIAL EDUCATION OF NEWARK, NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the New Jersey State Board of Education.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

The question here is the constitutional sufficiency of chapter 23 of the Sessions Laws of 1949, which amends R.S. 18:13-9.1 and R.S. 18:13-9.2 to provide that every applicant for a license to "teach or supervise" in the public schools of the State, as a condition prerequisite to the issuance of a certificate to that end, and every "professor, instructor, teacher or person employed in any teaching capacity" who shall thereafter "be employed * * * by, or in," any college, university, teachers college, or other school in New Jersey "supported in whole or in part by public funds, directly or through contract or otherwise with the State Board of Education, * * * before entering upon the discharge of his or her duties," shall subscribe to the "oath of allegiance and office" prescribed by R.S. 41:1-3, as amended by chapter 22 of the Session Laws of 1949. P.L., pp. 68, 70. The oath is in terms following:

"I, , do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will faithfully discharge the duties of , according to the best of my ability.

I do further solemnly swear (or affirm) that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of this State and to the Governments established in the United States and in this State, under the authority of the people; and will defend them against all enemies, foreign and domestic; that I do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in the Government established in the United States or in this State; and that I am not a member of or affiliated with any organization, association, party, group or combination of persons, which approves, advocates, advises or practices the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in either of the Governments so established; and that I am not bound by any allegiance to any foreign prince, potentate, state or sovereignty whatever. So help me God."

Plaintiff was employed by the defendant board of trustees as a "special lecturer" in mechanical engineering at its Newark College of Engineering for the Spring semester beginning February 1, 1950, and concluding June 15 ensuing, for a total compensation of $1,800, payable in equal semi-monthly installments. At the time of his employment, plaintiff was an experienced teacher and a specialist in the fields of mechanical and aeronautical engineering. On February 17, 1950, after four days of teaching under the contract, the trustees requested plaintiff to take and subscribe the prescribed statutory oath; but a week later he declined, in writing, on the ground that this legislative requirement infringed upon "the rights of private citizens as guaranteed" by the Federal and State Constitutions. On March 9 following, his teaching employment was for that reason terminated by the trustees, although he was retained in a nonteaching capacity for the remainder of the contract term at the same salary. The Newark College of Engineering is under the management and control of the trustees, but is supported wholly or in part by public funds, according to an arrangement made with the State Board of Education. The trustees constitute a body corporate under chapter 164 of the Session Laws of 1881. P.L., p. 208; R.S. 18:15-17 et seq.

The action of the trustees was sustained on appeal by the State Commissioner of Education and the State Board of

Education. Plaintiff's appeal to the Appellate Division of the Superior Court was certified here for decision on our own motion.

I.

First, it is contended that the oath of allegiance thus directed qualifies the oath prescribed for state officers by Article VII, Section I, paragraph 1 of the Constitution of 1947, and the act is therefore, in this respect at least, unenforceable as a legislative interference with an exclusive constitutional prescription and an enlargement of constitutional qualifications within the principle of Imbrie v. Marsh, 3 N.J. 578 (1950). We think not.

Teaching is a profession; and in New Jersey the practitioners of the profession in the public school system are not deemed public officers. At the outset, the relationship between the public school teacher and the school authority is contractual in nature. The attainment of the tenure provided by R.S. 18:13-16 and R.S. 18:13-17 does not convert the teacher's employment into a public office. Tenure as therein ordained is a mere "legislative status" subject to legislative alteration and annulment. Greenway v. Board of Education of Camden, 129 N.J.L. 46 (Sup. Ct. 1942); affirmed, Ibid. 461 (E. & A. 1943); Offhouse v. State Board of Education, 131 N.J.L. 391 (Sup. Ct. 1944); appeal dismissed, 323 U.S. 667, 65 S. Ct. 68, 89 L. Ed. 542 (1944). Teaching in the public schools does not involve the exercise of governmental powers, either of the State or the school district, and so the teacher is not an officer either of the State or the local corporate body, and, a fortiori, this is true of plaintiff, who held a contract of employment with the defendant trustees and not with the State or a local school district, though the school was conducted by a public corporation and was supported by public funds.

An office is a place in a governmental system "created or recognized by the law of the state which, either directly or by delegated authority, ...


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