Bd. Of Educ. Of City Of Garfield v. State Bd. Of Educ.

• Decision Date: 09 August 1943
• Docket Number: No. 249.,249.
• Citation: 33 A.2d 689,130 N.J.L. 388
• Parties: BOARD OF EDUCATION OF CITY OF GARFIELD v. STATE BOARD OF EDUCATION et al.
• Court: New Jersey Supreme Court

130 N.J.L. 388

33 A.2d 689

BOARD OF EDUCATION OF CITY OF GARFIELD

v.STATE BOARD OF EDUCATION et al.

No. 249.

Supreme Court of New Jersey.

Aug. 9, 1943.

Certiorari proceeding by the Board of Education of City of Garfield to review a determination of the State Board of Education that Beatrice Fish Rosenthal was illegally dismissed and entitled to reinstatement and payment of back salary as a teacher in prosecutor's high school.

Respondent board's action affirmed.

May Term, 1943, before PARKER, HEHER, and PERSKIE, JJ.

Edward Lukacsko, of Garfield (Richard J. Baker, of Garfield, of counsel), for prosecutor.

Charles Bernstein, of Garfield, for respondents.

PERSKIE, Justice.

The basic question requiring decision in this case is whether the State Board of Education erred in its determination that respondent school teacher was not barred by her laches to assert her right to be reinstated in her position and to be paid the back salary due to her from the date of her illegal dismissal by the Board of Education of the City of Garfield.

The facts which give rise to the stated question are stipulated. In light of the defenses interposed (laches) a detailed statement of the facts and procedure followed becomes necessary.

Respondent, Beatrice Fish Rosenthal, has been for the past eleven years, and presently is, a duly licensed school teacher in and for this state. She is the possessor of a proper and effective teacher's certificate (N.J.S.A. 18:13-2), and has acquired tenure. N.J.S.A. 18:13-16. She was employed by prosecutor as a permanent teacher on September 3, 1929, and thereafter continued to be so employed, save as to leaves of absence granted to her for the school years 1936-1937, 1937-1938, 1938-1939 and 1939-1940, until November 1, 1940, when, without any charges having been preferred against her (N.J.S.A. 18:13-17), she was advised by prosecutor that her services were terminated. She was dismissed, and her position, as a teacher of English in prosecutor's high school, at the salary of $1350.00 a year, was given to one Frances Casella, a fellow teacher. Prosecutor's action was based upon the grounds that it was ‘due to a natural diminution of the number of pupils in the [school] district’ and that although others of its teachers were teaching grades and subjects for which respondent is certified, that respondent ‘had a lesser term of service to her credit than either the teacher who replaced respondent or any other teacher employed in (its) High School.’ N.J.S.A. 18:13-19.

Respondent immediately (November 1, 1940) protested, in writing, prosecutor's action. She likewise promptly caused her protest to be brought informally to the attention of an assistant to the State Commissioner of Education (cf. N.J.S.A. 18:3-2 and 18:3-14) who, as it appears in the stipulation, without objection, suggested that no formal petition of appeal be filed with his office because the issue involved in this case was the same as that which was involved in the case of Briefstein v. Board of Education of the City of Garfield, then pending before him; and that respondent stipulate with prosecutor that it waive the defense of laches pending disposition of the aforesaid case and the case of Bernstein v. Board of Education of the City of Garfield.

On December 6, 1940 respondent and her counsel appeared before prosecutor. Reading between the lines, the parties were not in accord as to the method of computing the length of service rendered by respondent. To the end of avoiding the costs and expense of this suit, which involves the same question raised in the Briefstein and Bernstein cases, prosecutor and respondent entered into the following stipulation in writing:

‘1. Said teacher shall not be considered in laches by reason of not immediately appealing the above action of the Board, and said defense of laches is hereby waived by the Board, pending the final decisions in the two cases, to wit, Bernstein against Board and Briefstein against Board, respectively, which two cases are now being litigated.

‘2. Said teacher shall have the right, without being barred by the defense of laches, to file her appeal within a reasonable time after the rendering of the final decisions in the above two cases by the Court of Last Resort of this State.

‘3. In the meantime said teacher may accept such other employment as may be afforded to her by the Board, without prejudice to any rights or remedies which she may have by reason of the action of the Board hereinbefore mentioned. Dated: December 9, 1940.’

This stipulation was signed by the members of the Board of Education and by counsel for the respondent.

The Bernstein case, we are told, was composed. The Briefstein case (which, as we have seen, involved the proper basis for computing length of service) was decided adversely to prosecutor on December 13, 1941, and no appeal therefrom has been taken by prosecutor.

On April 5, 1941, respondent, relying upon the decision in the Briefstein case, made demand upon prosecutor that she be reinstated with back pay upon the ground, inter alia, that she had a longer term of service than Miss Casella. Apparently, this demand was either ignored or denied.

On April 15, 1941, respondent filed her petition of appeal with the Commissioner of Education seeking to be reinstated with back pay from the date of her dismissal. Prosecutor answered her petition by reasserting its stated ground for denying the relief respondent sought; it did not plead laches.

The Commissioner of Education found as a fact that respondent was entitled to ‘preference’ because she had earned a longer term of service than either Frances Casella, who had been appointed to her position, or Violet G. Breston, who had been appointed to the position held by Edith Gortz Briefstein. Accordingly, the Commissioner adjudged that respondent's dismissal was illegal. He,...