For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling, Jacobs, and Brennan. For reversal -- Justices Heher and Oliphant. The opinion of the court was delivered by Jacobs, J.
This is an appeal, pursuant to certification granted under R.R. 1:10-2, from a judgment in favor of the defendant-respondent, originally rendered by the Commissioner of Education, affirmed without opinion by the State Board of Education, and affirmed by the Appellate Division in an opinion reported in Cullum v. Board of Education of North Bergen Tp., 27 N.J. Super. 243 (1953).
Robert E. Madden, Superintendent of Schools for the Township of North Bergen, died on January 13, 1952. Three days later Stephen H. Magnus, president of the North Bergen Board of Education, Edith Beck, vice-president, and John Halligan and Edward H. Marck, members, met at luncheon and agreed that they would observe a 30-day mourning period before undertaking the task of selecting a new school superintendent.
George Eichler, the remaining member of the board, was informed of the agreement and acquiesced. North Bergen school principals who were interested in being considered for the appointment were told by the president and vice-president not to file applications until after the mourning period had expired.
Mr. Marck had been a member of the board for about nine months and his term was about to expire on January 31, 1952. He learned that he would not be reappointed and on January 20th he suggested to the president and vice-president of the board that the appointment of the superintendent be considered. They declined because of the mourning period. On January 23rd Township Commissioner Harry Buesser called upon James J. Goodman, secretary of the board, and asked that he call a special meeting; the request was refused on the ground that, under the board's resolution, special meetings were to be called only upon order of the president or upon written request of three members. Mr. Marck testified that he had asked the commissioner to obtain a notice from Mr. Goodman calling a special meeting for the purpose of appointing a superintendent. Vice-President Beck testified that on January 24th the commissioner asked her whether she would sign a request for a special meeting and threatened that her husband "would be out of a job" if she did not.
At about the same time Mr. Marck met the plaintiff John E. Cullum, a North Bergen school principal, and told him that he had better prepare his application for appointment as superintendent. Under date of January 24th the plaintiff addressed a letter application to the secretary of the board listing his qualifications and experience. On January 28th Mr. Marck visited the board's office and examined its records and resolutions with particular reference to the notice requirement for special meetings. As he was leaving, Mr. Goodman entered and although they exchanged greetings there was no discussion between them. Later that day Mr. Goodman went to Atlantic City, allegedly because of illness, and did not return home until Saturday night, February 2nd. On January 29th Messrs. Marck and Halligan went to the
board's office with a letter, signed by themselves and Mrs. Beck and addressed to Mr. Goodman, requesting that he call a special meeting for January 31st. Since Mr. Goodman could not be located the letter was left at his office and notices signed by Messrs. Marck and Halligan and Mrs. Beck were then served personally on Messrs. Magnus and Eichler. The notices stated that a meeting of the board would be held at the Assembly Chambers, Town Hall, on January 31st at 8 P.M. "for the purpose of considering the appointment of a Superintendent of Schools and for such other business as may come before said meeting."
During the afternoon of January 31st Messrs. Marck and Halligan called at the board's office and arranged to have a formal resolution typed; it named the plaintiff as superintendent of schools for the term of five years commencing January 31st at a salary of $7,500 for the first and second years, $8,000 for the third and fourth years and $8,500 for the fifth year. At 7 P.M. on January 31, 1952 Messrs. Marck and Halligan and Mrs. Beck met "in caucus" and at 7:55 P.M. they signed the resolution appointing the plaintiff as superintendent. At 8 P.M., in the presence of Messrs. Marck and Halligan and Mrs. Beck, the public meeting was called to order; Messrs. Magnus and Eichler did not attend. Mr. Halligan acted as temporary chairman and after brief formal preliminaries the resolution was adopted without any discussion and above objection from the floor that the appointment was being made without its "consideration" as provided in the notice. In response to the objection Mr. Halligan stated: "We have met since 7:00 o'clock in caucus and we have decided who is the superintendent, so we are presenting to you now at 8:00 o'clock a resolution naming Mr. Cullum as Superintendent of Schools." Apparently the appointment had been decided upon and made without any examination whatever of any applications on file. Mr. Halligan testified that he had not even seen the plaintiff's application until a copy was handed to him on his way from the caucus to the public meeting. Mr. Marck testified that he never saw any applications; he acknowledged that although he had asked
the plaintiff to file a "resume of his record" he at no time made any similar request or suggestion to other local school principals who were openly interested in being considered for the appointment and who had withheld their applications until expiration of the mourning period.
On February 1st the organization meeting of the board was held and was attended by all members, including Mr. Marck's successor. With Mr. Halligan and Mrs. Beck voting in the negative, a resolution was adopted declaring the position of superintendent of schools to be vacant and directing that the plaintiff's name as superintendent be removed from the board's records. On February 18th the plaintiff filed his petition with the Commissioner of Education seeking an order compelling the board to carry out the terms of the resolution which appointed him as superintendent. The Commissioner denied relief on the ground that since the board's secretary had not signed the notice the meeting of January 31st had not been legally called and that the appointment made was therefore invalid. The Appellate Division agreed that the meeting had not been legally ...