Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.
The issue is whether the appellant had tenure entitling her to priority in the filling of a vacancy in the principalship in the Audubon School District.
The appeal is submitted on a stipulation of facts. Mary E. Lange is a teacher in the Audubon School District where she has been employed since 1912. From 1912 to 1914, she served as a teacher. In 1914 she was appointed principal of the grade schools in the district and continued in that capacity until 1927. In June of 1927 she was assigned by the board of education to the position of "Supervisor to Supervise Grade Schools," and served in that capacity until the position was abolished in June 1944 for reasons of economy and diminution in the number of pupils. Thereafter she served as a teaching principal in one of the grade
schools until September 18, 1944, when it was ascertained that there had been no vacancy in such position and Miss Lange was returned to a teaching position. Thereafter she has continuously performed her teaching duties.
In 1951 a vacancy arose in the position of principal, for which Miss Lange submitted her application. No applicant had tenure or seniority as a principal. The board disaffirmed Miss Lange's claim of right to the position by reason of former service as principal and appointed one George R. Oldham, a teacher, to fill the vacancy. Miss Lange appealed from this ruling of the board to the State Commissioner of Education, who decided against her. Miss Lange's appeal to the State Board of Education resulted in an affirmance of the commissioner's ruling, from which decision Miss Lange appeals to this court.
The appellant contends that under the provisions of the Teachers' Tenure Law (R.S. 18:13-16, 17, 19), she did not lose the tenure acquired by her previous service when she accepted the position of "Supervisor to Supervise Grade Schools"; that when the position was abolished in 1944, she was entitled to appointment to fill the next available principalship.
The defendant board of education contends that plaintiff lost any tenure she may have had as a principal under the Teachers Tenure Law by accepting the position of supervisor, and that neither in 1944 nor 1951, was she on a preferred eligibility list entitled to appointment as principal; and that the 1935, 1942 and 1951 amendments to the school laws (R.S. 18:13-19), granting certain extensions as to tenure, were prospective, and not retrospective, in effect.
The original Teachers Tenure Law was enacted in 1909 (L. 1909, c. 243, p. 398; now R.S. 18:13-16, 17, 19, 20). The first amendment thereto, providing for preferential treatment of teachers, principals and supervising principals by virtue of service of years in those capacities, was enacted in 1935 (L. 1935, c. 126, p. 331). It was thereafter amended by L. 1942, c. 269, p. 713 and L. 1951, c. 292, p. 1070. In construing the amendments our courts have held that the
Legislature did not intend that they should have a retrospective effect and that the enactments were prospectively effective only. Downs v. Board of Education of Hoboken , 126 N.J.L. 11, 13 (Sup. Ct. 1940), affirmed in Schlank v. Board of Education of Hoboken , on the opinion of Mr. Justice Heher in the Supreme Court, 127 N.J.L. 602 (E. & A. 1942); Werlock v. Woodbridge , 1939-1949 Comp. School Law Decisions, p. 107 (1948), affirmed by the State Board of Education and by the Superior Court on other grounds, 5 N.J. Super. 140 (App. Div. 1949).
The position of "Supervisor to Supervise Grade Schools" is not recognized by the school laws of this State as extending to the holder thereof tenure other than as a teacher. In the case of Werlock, supra , the Commissioner of Education in a similar situation held that the position of "Supervisor of Elementary Education," not being mentioned specifically in the tenure statute, did not give to the holder of that position tenure of supervising principal or principal, but that the tenure protection enjoyed by the petitioner was only that of a "teacher," and that petitioner was not entitled to any seniority rights to appointment to a principalship when her tenure protection was only that of a "teacher." Cf. Wythes v. Camden , 1939-1949 School Law Decisions, p. 131; Davis v. Board of Education of the Township of Overpeck , 1938 Comp. School Law Decisions, p. 464 (1913); MacNeal v. Board of Education of Ocean City , 1938 Comp. School Law Decisions, p. 374 (1926); affd. by the State Board of Education, 1938 Comp. School Law Decisions, p. 377, and affd. by the Supreme Court in 1928, without written opinion.
The record is barren of any protest or expression of dissatisfaction by plaintiff respecting her change of status from principal to supervisor. Nor does it appear that any proceeding was initiated by her to test the local board's action or that the appellant at any time protested or took any action indicating dissatisfaction with the action of the local board voiding the principalship ...