Motion to Dismiss or Affirm — Phelps v. Board of Ed. of West New York

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1936

No. 455

LUCY ASKAM er an,

Appellants,

Us.

BOARD OF EDUCATION OF THE TOWN OF WEST

-NEW YORK anv STATE BOARD OF EDUCATION

OF THE STATE OF NEW JERSEY.

Appellees.

APPELLEE’S STATEMENT PURSUANT TO RULE 12, .

_ PARAGRAPH ‘‘3’’ OPPOSING JURISDICTION, WITH |

MOTION TO DISMISS AND IN THE ALTERNATIVE

MOTION TO AFFIRM.

The appellee, Board of Education of the Town of West

New York, pursuant to the provisions of Rule 12, Para-

graph 3 of this Court, writes down the following matters

and grounds making against the jurisdiction of this Court

asserted by appellants.

oe

The appeal in the instant case presents for review,. the

decision of a State Court, construing a State statute and

determining that it is not violative of the State Constitu- .

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fion. The eist of the State Court's opinion involves, purely

nomatter of loeal law. A PHederal question was not deeided [

by the State Court, nor was its deeision neeessary toon :

determination of the enmse. . x

The opinion of the New slersey Supreme Conrt is offi:

erally reported in tlio No Le 880, and was affirmed by the

New Jersey Court of Mrrors and Appeals in tt6 N20 bh,

416, .

The Statutes involved are PL bh. 1909, p. BOR, betty Chap

ter D483 of the New Jersey Publie Laws of T9009" (the so

enlled Teaeher's Tenure Net) and Pood. 1983, p. 24, heine

Chapter 12 of the New Jersey Publie Laws of 1983,

whieh

latter Aet the New Jersey Court held in its opinion, to have

“modified and repealed part of the 1909 Tene Act.

The 1909 Statute reads as follows:

‘A Supplement to an aet entitled An aet to estab

lish a thorough and effielent system oof free publie

schools and to provide for the maintenanes, manage

ment and support thereof" approved Oetober nine

teenth, one thousand nine hundred and three.

Br ir Ewacren by the Senate and General Assembly

of the State of New Jersey :

1. The serviee of all feachers, principals, supervis-

ing principals of the pitblie sehools in any sehool dis-

trict of this State shall be duritig good behavior and |

efficiency, after the expiration of a period of employ-

ment of three consecutive years in that district, unless

a shorter period is fixed by the employing board; pro-

vided, that the. time any teacher, principal, supervis-

ing principal. has taught in the distriet in which he or

she is employed at the time this act shalk go into effect,

shall be counted in determining such period of employ-

ment. No principal or teacher shall be dismissed or

subjected to reduction of salary in said school district

except for inefficiency, incapacity, conduct unbecoming

a teacher or other just cause, and after a_ written

charge of the cause or causes shall have been preferred -

‘against him or her, signed by the person or persons

making the same, and filed with tle seeretary or clerk

of the Board of Mdueation having charge of the school

in which the serviee is being vrendered, and-after the

arge shall have heen examined into and found true

i fact by said Board of due ‘ation, upon reasonable,

nese fo the person charged, who may be represented

hy counsel at the hearing. Charges may be filed hy

wny person, whe ther ame imber of said school board or

not,

2. Said Board of Mdueation shall have power to

issue writs of subpoena on bebalf of either party to

compel attendance of witnesses to testify before said

hoard in the matter under investigation, which sub-

poena shall be issued under the seal of said board ane

he signed by the seeretary or clerk thereof, and shall

be served in the same manner as sabpoenas issued out

of the Courts of Common’ Pleas of this State, and

every person who refuses or neglects to obey the com-

mand of such a writ, or, who, after appearing, refuses

fo be sworn and testify, shall in’ either event be liable

fo a penalty of fifty dollars, to be sued for in the name

of said board in any colurt of competent jurisdiction,

which pe nalty when collected shall be paid to the treas-

urer or custodian of moneys of said board.. Any mem-

her of ‘said board is hereby authorized to administer

oaths fo such witnesses as may appear or be brought

before it, and any person who shall have been so

sworn wind who shall testify falsely, shall be guilty of.

- jury. |

. Nothing -herein contained shall be held to limit

ng right of any school board to: reduce the: number

of principals or teachers employed in any school dis-

trict when such reduction shall be due to a natural

-diminution of the number of pupils in said school dis-

trict; and, provided further, that the service of anv

principal or teacher may be terminated without charee

or trial who is not the holder of a proper teacher's

certificate in full force and effect.

4. This dot shall take effect September first, one”

thousand nine hundred and nine.

Approved April 21, 1909.""

The 1923 Statute reads as follows:

‘An Acr respecting the salaries or compensation of

officers and employees of and persons holding pesi

tions in the several school distriets of this State.

Wrerrkas, due to present eeonomie conditions, an

emergeney exists which requires that the board of

education of every school distriet in this State be en

abled to fix and determine, by resolution, the amount

of salary or compensation to be paid te officers and

employees of and persons holding positions in any

such school distriet : therefore,

Bre rv Ewactren ny tik Senare anp Generar Assen

RLY OF THE NSratre or New Jersey:

1. The board of edueation of every school district

in this State shall have full authority, by resolution, to.

tix and determine the salaries and compensation to be

paid to. officers and employees of and persons holding

positions in any such school district, between the first

day of July, one thousand nine hundred and thirty-

three, and the first day of July, one thousand nine lun

- dred and thirty-four, notwithstanding any such person

be under tenure or not; Provided, however, that no

salary or compensation of any officer or employee of

or person holding a position in any school district shall

be increased between the first day of July, one thou-

sand nine hundred and thirty-three, and the first day

of July, one thousand nine hundred and thirty-four;

and Provided, Further, that if any such person be a

member of the Teachers’ Pension and Annuity Fund

af: the State of New Jersey, or any employees’ pen-

sion fund, such person may continue to pay, or cause

to be paid, into such pension fund the same amount:

as if such salary or compensation had not been

changed, and upon the death or retirement of such

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member, he or his benefteiary shall be entitled to the

same benefits as if his salary or compensation had rot

heen changed; and Provided, Further, that-in fixings

salaries or compensation there shall be no diserimina-

tion among or between individuals in the same class

of service; provided, however, that the existing mini-

mum salary of teachers of seventy-dollars per month

shall not be changed.

2. Nothing in this aet contained shall be construed

fo affect or impair the continuity of position or em-

ployment under any tenure of office statute.

3. This act shall take effect immediately.

Approved February 4,,1933.7?

The resolution adopted by appellee, pursnant to the an-

thority of the 1933 Aet, reads as follows:

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“Resoiven, That between July 1, 1933, and July 1,

N34, the salaries of the Superintendent of. Schools

and of all principals, Supervisors and teachers In the

West New ¥ork School system be and they are hereby

reduced as follows: :

All salaries from $1200 to $1999 per annum reduced

fen per cent; v4

All salaries from $2000 to $2499 per anuum reduced

eleven per cent; |

All salaries from $2500 toe $2999 per annum reduced

{welve per cent; yi

All salaries from $3000 to $3499 per annum reduced

thirteen per cent; v2 = |

All salaries from $3500 to $399: per annum reduced ~

fourteen per cent; . |

All salaries from $4000 to $5600 per annum reduced

_ fifteen per cent;

all figures being inclusive; provided, however, that the

salary of any elementary school teacher shall not be

reduced below the minimum of $1200 per annum, and

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the salavy of any Meh sehool teacher shath net Ie Me

dneed below the minima of $1600 per animim,

(Seod.) Arriurn He Hannnen.

Dated June ot. | A

\ perusal of the State Conrt's opinion imttientes: that a

eonstined the T909 Net, mer Hs conferring inrevoenhly

vested eontraetual oblieations on the selool tenehers of

New Jersey, but oon the contrary, that’ the statute estah

lished Sta Teeislative: status for teachers’ “opmel that the,

Statys ef tenure terehers is an essenee dependent ona

x

Atatute Whieh the feoishiture at will may abel

ih, or whese emolmments Tomay ehangwe’ s that the Pace

Act eonstitntes San implied partial repeater or amendment

tythe temire aet ef 1909 and is not repuenaut fo the pre

Visions of the Constitution of the State of New Jersey in

hibitine the impairment of obligations of-eontraet,

This imterpretation by the State Court, as fe the mean

ine and etfeet to be attributed to the fennre aet of TO ane

its elucidation of the status of teachers in, New Jersey

therennder, makes manifest that the T9090 Net did) not ere

. ate a contractual obligation and henee there eonld be ne

constitutional impairment by the subsequent legislation of

TASR, because no contract iW law or faet, had ever existed,

This helding by the’ State court made it entirely unneces

| sary to consider or determme the question whether the con

| tract lanse of the Federal Constitution had been violated

bv the TSA statute,

S ach interpretation hb the New Jersey courts of a State

Stainte will be accepted by this Conrt and does not raise a

r ederal qnestion properly ‘reviewable by this Court.

First National Bank of Garnett ve Ayers, 160 U.S.

. 660 : |

* Carstairs v. Cochran, 193 U.S., page 10;

7

Tampa Waterworks ompany ve Oily oF Tampa, 199

U.S. 24,

Guong Ham Wah verans Ve Industrial Aecident Com

pany, 205 U8. 4455 | .

Terrace v. Thompson, 263 U.S. 197;

Supreme Lodge, ete. v. Meyer, 265 U.S. Ws;

American Ry. Wy: rpress Coy (‘wiemunwraltte uf Ken

fucky, 208 U.N. 2697

To vive this Court jurisdiction it: must appear affirm

lively, not only that the Mederal question was presented

for devinion, bit that ifs decision was necessary ten deo

fermination of the ennse, and that if was actually decided,

‘fhat the judement could not have heen given withont

een if. ° é

CTereland & PLR. Cy. Vv. Cleveland, 200 1.8. Sh:

Parker vo MéLain, 837 U.S. 469.

In Bachtel vy. Wilson, 204 U. O6, this Court held that

hefore it enn Pronounce 4a pee ‘nt of a State court to

he “in confliet with the Federal Constitution, it must be

made to appear that its decision was one nee essarily in con

‘fliet merce, and vot that possibly, or even probably,

if was’

It. is aeidlp submitted that Jurisdiction should be

declined because a Federal question of substance was

neither presented to nor decided by the State court, nor

was a Fedéral question necessary to the determination of

the cause,

If.

‘Motion to Dismiss ‘id in the Alternative, to Affirm.

New comes the appellee, the Board of Education of the

Ton of West New York, by Saul Nemser, its counsel. and’

moves this Court to dismiss the appeal for want of juris-

diction; and in ‘the alternative, said appellee moves to

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alirm the judgment of the New Jersey Court of Mrrors and

Appeals as the Last Resort in all causes, upon the ground

that the questions on whieh the decision of the enuse cde

pends are so unsnbstantial as net to need further argu

mont,” ”

The appellants cite cases bearing on the question of

tenure rights whieh clearly involve unwarranted. nets of

school lorry while a tenure Act" Ou in full foree and

eect, without amendment or modification, or whieh in

volve eases where teachers have niade contributions to a

pension or retirement fund and therefore, had nequired

certain vested property rights ino such. fund, whieh ob

viously, could not be diminished or disturbed to the preju

dice of the contributors by subsequent legishition.

None of these eases are in point and fall far short of

supporting appelliunts® position,

In none of these eases was the issue one which questions

the right of the State to repeal, amend or modify its own

laws. None of these eases have any relevaney to a situa

tion where the State as the Sovereign power, modifies its

ewn law-——the Tenure Act —to affect salaries to acerue in

the future—beginning with and during a new and subse-

quent school year. yi

The reduetions-in salary varied from 10% to 16% and

became effective for the school year next following the date

of the adoption of the resolution. The 1933 Statute was

enacted on February 4, 1933. The resolution reducing ap-

pellants’ salaries, was adopted by the appellee on June 28,

19233. and beeame effective during the new fiscal year July

1, 1933—July 1, 1934. As a practical matter and due to the

intervening summer vacation, the appellants were not af-

fected until school opened on September 1, 1933.

“The action of the New Jersey Legislature in modifying

the 1909 Tenure Act, for the limited period of one year, did

not impinge upon any of the alleged rights of the appel-

lants. . | .

a ie ee

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“There can be no vested right in an existing law which

precludes its change or repeal’, 12 C..7. 958. .

According to the New Jersey court's rational eonstrue-

tion of the Tenure Aet of 1909, if conferred npon the np

pellants and other sehool teachers of the State of New Jer

sey the right to he employed after the expiration of a

three yegr probationary period during good behavior and

eficteney without dismissal or reduetion in ailary, except

for the causes enumerated in the statute. This conferred

upon appellants a personal right or privilege which they

could neither axsign nor transfer, and which the legislature

could withdraw entirely or in part, as it pleased.

“The term ‘vested rights’ relates to property rights only

and does not apply to personal rights’??. 12°C. J. 956.

- Judge Cooley-in his work on Constitutional Limitations

(7h Md.), page 402, states that citizens have no vested

right in the. existing general laws of the State which can

preclude their amendment or repeal, and that there is no

implied promixe on the part of the State to protect its citi-

zeus against incidental injury occasioned by the changes in

the law.- See

People ex: Rel. Cunningham et al. vy. Roper et al.,

N. Y. 629;

People ex Rel, Davies v. Commissioners of Taxes,

N. Y. 501;

Rector, ete., of Christ Church, Philadelphia, vy. County

of Philadelphia, 24 How. 300.

The teachers did nothing other than to accept another

year’s employment at the hands of the local Board of Ed-

ucation and all of them accepted such employment at. the:

reduced salaries without protest.

If the construction placed on the 1909 Act by the New

Jersey court in the case at bar is to prevail, then clearly

appellants have no contract and never had a contract in the

full sense of the term. Thus a contractual obligation could

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not possibly je impaired and therefore, a question could

not possibly arise under the contract clause of the Federal

. Constitution.

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At any rate, if the eomellante’ contentions are tenable,

and even if it be assumed that they acquired vested con-

tractual rights under the Act of 1909 which the State was

powerless to modify—still the 1933 &tatute constitutes

proper emergency legislation. :

The Preamble to the 1933 Statute proclaims the existence

of an emergency. The Act is to,be effeetive for one year—-

July 1, 1933 to July 1, 1934.

It is well-settled that the obligations of contracts must

yield to the exercise of-the police power reserved to the

States. . |

Hom? Building & Loan Assn. v. Blaisdell, 290 U.S

398. '

Vested rights cannot inhibit the proper exertion of this

power.

Nebbia v. New York, 291 U. S. 502

_ Conclusion. —

It is respectfully submitted that the appellee’s motion to |

dismiss the appeal and, in the alternative, to affirm the

judgment of the State court, should prevail.

’ - Remnuoip Heke cer,

Attorney of Appellec.

Savi NeMseEr,

"Of Counsel With Appellee.

(8281-C)