On appeal from decision of State Board of Education.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Burling, J.
This is an action in lieu of prerogative writ. The appeal is brought under Rule 3:81-8 to review a decision of the State Board of Education of the State of New Jersey whereby a decision of the Commissioner of Education denying rights under the tenure laws (more specifically detailed, post) to the petitioner-appellant, Constance P. Nichols (hereinafter called the petitioner), was affirmed. The appeal was addressed to the Superior Court, Appellate Division, but prior to hearing there certification was allowed on this court's own motion. The proceeding before the Commissioner had been instituted by the petitioner to test the validity of action taken by the defendant Board of Education of the City of Jersey City, Hudson County, New Jersey (hereinafter called the city board) upon abolishing petitioner's position as assistant superintendent of schools.
The facts, stipulated in this case, are: that petitioner was appointed as a teacher in the Jersey City school system on September 1, 1928; that she acquired tenure as a teacher in said system in September, 1931, and had tenure as a teacher when, by the city board's resolution of December 19, 1946, she was appointed assistant superintendent of schools, and on the date, January 1, 1947, when she entered employment in that capacity; that petitioner is a citizen of the United States of America and holds a state teacher's certificate; that petitioner was employed as assistant superintendent of schools from January 1, 1947, to December 15, 1949, during which time her state teacher's certificate was in full force and effect; that the city board on or about December 15, 1949, by resolution of that date, for reasons of economy, abolished the position of petitioner as assistant superintendent of schools; and that on or about December 15, 1949, petitioner was assigned to teaching at school No. 22. It appears that petitioner, under protest, accepted this classroom teaching assignment by letter of December 16, 1949. It also appears that by letter of the same date she protested the abolition of her position as an assistant superintendent of schools.
The petitioner on or about November 22, 1950, filed a petition with the Commissioner of Education of this State (hereinafter called the Commissioner) wherein and whereby she requested an order directing that she "be placed on a preferred eligible list in order of years of service for re-employment as assistant superintendent of schools whenever a vacancy shall occur in that position." The city board, by answer to the petition so addressed to the Commissioner asserted two separate defenses, namely that petitioner never acquired tenure as assistant superintendent of schools, and that there existed no statute making petitioner eligible for placement on a preferred list for re-employment whenever a vacancy should occur in the position of assistant superintendent of schools.
The Commissioner dismissed petitioner's petition on the ground that there existed no statute giving petitioner eligibility for placement on a preferred list for re-employment in the position of assistant superintendent of schools, in that her position was abolished for reasons of economy and not by reason of natural diminution of the number of pupils in the district. The Commissioner held that it was unnecessary to decide the question of tenure. On petitioner's appeal the State Board of Education affirmed for the reasons stated by the Commissioner. The State Board although presented with the tenure question likewise found its determination unnecessary. Petitioner, on October 8, 1951, noticed her appeal from this adverse decision of the State Board to the Superior Court, Appellate Division. Prior to hearing there certification of the appeal was allowed upon this court's own motion as hereinbefore stated.
There are three questions involved in this appeal. These may be stated as follows: (a) Did petitioner have tenure as an assistant superintendent of schools under L. 1938, c. 288, sec. 1, as amended by L. 1948, c. 470, sec. 2 (N.J.S.A. 18:13-16.1); (b) Does R.S. 18:13-19 afford re-employment protection to assistant superintendents of schools where the position is abolished by reason of economy and not by reason
of a natural diminution of pupils in the school district; and (c) Is L. 1951, c. 292, sec. 1, amending R.S. 18:13-19 (as amended by L. 1942, c. 269, sec. 1) retroactive in effect? Although the question of tenure as presented on this appeal may be resolved in petitioner's favor, we decide against her on the construction and application of R.S. 18:13-19 as amended by L. 1942, c. 269, sec. 1, supra, and as to the effect of L. 1951, c. 292, sec. 1, supra.
On the question of tenure the facts as detailed above are not in dispute and the conclusions to be drawn depend upon construction of the pertinent statutory provisions. On December 19, 1946, when she was appointed, and on January 1, 1947, when she became employed, as an assistant superintendent of schools, petitioner was qualified to hold the position under R.S. 18:6-41. There is no question involved on this appeal as to the construction or effect of L. 1947, c. 148, sec. 9 (effective May 12, 1947) amendatory of R.S. 18:6-41, supra. We pass on the question of tenure as presented, namely whether "tacking" of prior employment as a teacher is permitted in determining petitioner's tenure as an assistant superintendent. In doing so no consideration has been given to the effect, if any, of L. 1947, c. 148, sec. 9, supra.
Petitioner acquires tenure as an assistant superintendent under L. 1938, c. 288, sec. 1 (N.J.S.A. 18:13-16.1) as amended by L. 1948, c. 470, sec. 2 (effective ...