Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
This appeal was brought under R.R. 4:88-8 to review a decision of the State Board of Education, which affirmed the dismissal of plaintiff's petition by the Commissioner of Education of New Jersey.
The present case is a sequel to earlier litigation between the same parties, involving the same basic claim by plaintiff for preference in appointment as an assistant superintendent of schools in Jersey City. In that original action, Nichols
v. Board of Education of Jersey City , 9 N.J. 241, 243 (1952), the Supreme Court summarized the facts then existing as follows:
"The facts, stipulated in this case, are: that petitioner was appointed 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 essential holding in that 1952 decision was that petitioner was not eligible for placement on a preferred list for re-employment as an assistant superintendent, her position as such having been abolished on December 15, 1949 for reasons of economy , rather than natural diminution of pupils in the school district, because (a) there was no statute in existence, when her position was so abolished, affording such re-employment protection to an assistant superintendent under such circumstances; and (b) L. 1951, c. 292, amending R.S. 18:13-19, and providing for placement on such a preferred list, even where dismissal is for reasons of economy, was not retroactive in nature and did not enure to petitioner's benefit, since her position as assistant superintendent was abolished for economy prior to its adoption. The qualified statement of the Supreme Court, in that decision, that Mrs. Nichols had tenure as assistant superintendent, on the basis of the limited question presented, will be considered hereinafter.
Since that 1952 decision, the following additional facts appear. Dr. Richard T. Beck, whose appointment as an assistant superintendent of schools in charge of elementary education was also effective as of January 1, 1947, resigned on March 1, 1954. Plaintiff's application for appointment to fill the vacancy occasioned by that resignation was rejected by the respondent board. No one was then appointed to Dr. Beck's job. On September 15, 1955 the local board of education adopted a series of resolutions, all effective July 1, 1955, (1) abolishing a number of supervisory positions, including those of "Assistant Superintendent of Schools in charge of Elementary Education" and "Director of Personnel"; (2) establishing several new supervisory positions, including that of "Assistant Superintendent of Schools in charge of Personnel and Elementary Education"; and (3) promoting Maurice J. O'Sullivan, who had been director of personnel since 1950, to the newly created dual position of assistant superintendent of schools in charge of personnel and elementary education "at no increase in salary." O'Sullivan's annual salary at that time was $10,100; and that of Mrs. Nichols, then employed as a teacher, was $6,340.
Thereupon, plaintiff, by her petition of December 14, 1955, requested the Commissioner of Education to order the Jersey City Board of Education to appoint or reinstate her as assistant superintendent of schools in the place and stead of Maurice J. O'Sullivan; and to direct the board to account for and pay to her the sums withheld from her by reason of its failure to appoint her as assistant superintendent of schools on September 15, 1955, when O'Sullivan was appointed.
In the long interim between the filing of her petition on December 14, 1955 and the Commissioner's decision on July 24, 1959, two important changes were made by city board resolutions in O'Sullivan's status, which we interpose here for chronological coherence. On July 29, 1957 the duties of the division of personnel were taken away from O'Sullivan and assigned to the superintendent of schools;
and O'Sullivan's position suffered a title change from its dual aspect to the simpler and earlier form of "Assistant Superintendent of Schools in charge of Elementary Education." Then, on July 1, 1959, O'Sullivan's position as "Assistant Superintendent of Schools in charge of Elementary Schools" [sic] was abolished for reasons of economy , and the duties of this position were assigned to the superintendent of schools. The position has not been re-established.
At this point, we observe that the primary relief sought by plaintiff, namely, appointment or reinstatement as assistant superintendent of schools "in the place and stead of Maurice O'Sullivan," cannot be ordered at this time, because the position is presently non-existent. That portion of plaintiff's case is now moot. However, we must still consider her claim for secondary relief, i.e. , salary ...