Thorp v. Board of Trustees of Schools for Indus. Ed. of Newark, A--63

• Decision Date: 12 March 1951
• Docket Number: No. A--63,A--63
• Citation: 6 N.J. 498,79 A.2d 462
• Parties: THORP v. BOARD OF TRUSTEES OF SCHOOLS FOR INDUSTRIAL EDUCATION OF NEWARK.
• Court: New Jersey Supreme Court

Page 498

6 N.J. 498

79 A.2d 462

THORP v. BOARD OF TRUSTEES OF SCHOOLS FOR INDUSTRIAL EDUCATION OF NEWARK.

No. A--63.

Supreme Court of New Jersey.

Argued Dec. 18, 1950 and Jan. 2, 1951.

Decided March 12, 1951.

Emil Oxfeld, Newark, argued the cause for appellant. Rothbard, Harris & Oxfeld, Newark, attorneys.

Charles R. Hardin, Newark, argued the cause for respondent. Pitney, Hardin & Ward, Newark, attorneys.

The opinion of the court was delivered by

HEHER, J.

The question here is the constitutional sufficiency of ch. 23 of the Session Laws of 1949, which amends R.S. 18:13--9.1, N.J.S.A., and R.S. 18:13--9.2, N.J.S.A., to provide that every applicant for a license to 'teach or supervise' in the public schools of the State, as a condition prerequisite to the issuance of a certificate to that end, and every 'professor, instructor, teacher or person employed in any teaching capacity' who shall thereafter 'be employed * * * by, or in,' any college, university, teachers college, or other school in New Jersey 'supported in whole or in part by public funds, directly or through contract or otherwise with the State Board of Education, * * * before entering upon the discharge of his or her duties,' shall subscribe to the 'oath of allegiance and office' prescribed by R.S. 41:1--3, as amended by ch. 22 of the Session Laws of 1949, N.J.S.A. Pamph.L. pp. 68, 70. The oath is in terms following:

'I, _ _, do solemnly swear (or affirm) that I will support the Constitution of the United States and Constitution of the State of New Jersey, and that I will faithfully discharge the duties of _ _, according to the best of my ability.

'I do further solemnly swear (or affirm) that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of this State and to the Governments established in the United States and in this State, under the authority of the people; and will defend them against all enemies, foreign and domestic; that I do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in the Government established in the United States or in this State; and that I am not a member of or affiliated with any organization, association, party, group or combination of persons, which approves, advocates, advises or practices the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in either of the Governments so established; and that I am not bound by any allegiance to any foreign prince, potentate, state or sovereignty whatever. So help me God.'

Plaintiff was employed by the defendant board of trustees as a 'special lecturer' in mechanical engineering at its Newark College of Engineering for the Spring semester beginning February 1, 1950 and concluding June 15th ensuing, for a total compensation of $1,800, payable in equal semimonthly installments. At the time of his employment, plaintiff was an experienced teacher and a specialist in the fields of mechanical and aeronautical engineering. On February 17, 1950, after four days of teaching under the contract, the trustees requested plaintiff to take and subscribe the prescribed statutory oath; but a week later he declined, in writing, on the ground that this legislative requirement infringed upon 'the rights of private citizens as guaranteed' by the Federal and State Constitutions. On March 9th following, his teaching employment was for that reason terminated by the trustees, although he was retained in a non-teaching capacity for the remainder of the contract term at the same salary. The Newark College of Engineering is under the management and control of the trustees, but is supported wholly or in part by public funds, according to an arrangement made with the State Board of Education. The trustees constitute a body corporate under ch. 164 of the Session Laws of 1881. Pamph.L. p. 208; R.S. 18:15--17, et seq., N.J.S.A.

The action of the trustees was sustained on appeal by the State Commissioner of Education and the State Board of Education. Plaintiff's appeal to the Appellate Division of the Superior Court was certified here for decision on our own motion.

I.

First, it is contended that the oath of allegiance thus directed qualifies the oath prescribed for State officers by Article VII, Section I, paragraph 1 of the Constitution of 1947, and the act is therefore, in this respect at least, unenforceable as a legislative interference with an exclusive constitutional prescription and an enlargement of constitutional qualifications within the principle of Imbrie v. Marsh, 3 N.J. 578, 71 A.2d 352 (1950). We think not.

Teaching is a profession; and in New Jersey the practitioners of the profession in the public school system are not deemed public officers. At the outset, the relationship between the public school teacher and the school authority is contractual in nature. The attainment of the tenure provided by R.S. 18:13--16, N.J.S.A., and R.S. 18:13--17, N.J.S.A., does not convert the teacher's employment into a public office. Tenure as therein ordained is a mere 'legislative status' subject to legislative alteration and annulment. Greenway v. Board of Education of Camden, 129 N.J.L. 46, 28 A.2d 99, affirmed, 129 N.J.L. Id., 461, 29 A.2d 890, 145 A.L.R. 404 (E. & A. 1943); Offhouse v. State Board of Education, 131 N.J.L. 391, 36 A.2d 884 (Sup.Ct.1944), appeal dismissed, 323 U.S. 667, 65 S.Ct. 68, 89 L.Ed. 542 (1944). Teaching in the public schools does not involve the exercise of governmental powers, either of the State or the school district, and so the teacher is not an officer either of the State or the local corporate body; and, A fortiori, this is true of plaintiff, who held a contract of employment with the defendant trustees and not with the State or a local school district, though the school was conducted by a public corporation and was supported by public funds.

An office is a place in a governmental system 'created or recognized by the law of the state which, either directly or by delegated authority, assigns to the incumbent thereof the continuous performance of certain permanent public duties'; a position is analogous to an office 'in that the duties that pertain to it are permanent and certain, but it differs from an office, in that its duties may be nongovernmental and not assigned to it by any public law of the State;' and an employment differs from both an office and a position 'in that its duties, which are nongovernmental, are neither certain nor permanent.' Fredericks v. Board of Health, 82 N.J.L. 200, 82 A. 528 (Sup.Ct.1912). The test of a public office is whether the incumbent is 'invested with any portion of political power partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority.' City of Hoboken v. Gear, 27 N.J.L. 265 (Sup.Ct.1859). An office partakes in some degree of political power or governmental authority; a position is an employment 'not calling for the exercise of governmental authority.' Dolan v. Orange, 70 N.J.L. 106, 56 A. 130, 131 (Sup.Ct.1903). See, also, Uffert v. Vogt, 65 N.J.L. 377, 47 A. 225 (Sup.Ct.1900); Duncan v. Board of Fire and Police Commissioners of Paterson, 131 N.J.L. 443, 37 A.2d 85 (Sup.Ct.1944). There is general acceptance of the view that tenure does not serve to render the teacher's employment a public office. E.g. Kennedy v. Board of Education, 82 Cal. 483, 22 P. 1042 (1890); Kostanzer v. State, 205 Ind. 536, 187 N.E. 337 (1933). See, also, 110 A.L.R. 800; Mootz v. Belyea, 60 N.D. 741, 236 N.W. 358; 75 A.L.R. 1352.

Nor does the constitutional direction of Article VIII, section IV, paragraph 1 of the Constitution of 1947, that the Legislature provide 'for the maintenance and support of a thorough and efficient system of free public schools' constitute those employed to give instruction in the schools public officers, either of the State or the local authority. Teachers so employed do not exercise what is in essence governmental authority.

II.

The statute is also assailed as an invasion of 'areas of freedom' which are inviolable under the Bill of Rights embodied in the First Amendment of the Federal Constitution, secured against adverse state action by the Fourteenth Amendment, and Article I, paragraphs 6, 18 and 21 of the State Constitution of 1947, and as an unconstitutional interference with plaintiff's 'right or privilege to follow the profession of a teacher.'

More specifically, it is said that the statutory proscription trespasses upon the sacred domain of belief, even though the subject matter be a settled conviction entertained by one who would teach and instruct youth of the right to overthrow or change the established Federal or State government by force or violence or other unlawful or unconstitutional means. This legislative directive is challenged as an unconstitutional 'throttling of any unorthodox philosophy which must inevitably flow from such proscription.'

' Beliefs are inviolate.' American Communications Association v. Douds, 339 U.S. 382, 70 S.Ct. 674, 681, 94 L.Ed. 925 (1950). The First Amendment of the Federal Constitution gives 'freedom of mind the same security as freedom of conscience.' Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945). It is of the very essence of the freedoms guaranteed by the First Amendment that opinions or beliefs not manifested by an overt act shall not be the subject of criminal sanctions Unorthodox thoughts as such may not be rendered punitive. There cannot now be punishment for the harboring of illicit beliefs and thoughts as was the case at the early common law. The Constitution, Federal and State, forbids. But the fundamental civil liberties here involved are not absolute. The particular guarantee of freedom of thought and opinion by the First Amendment is not free of all qualification....