Gowdy v. Board of Education

98 A. 12, 89 N.J.L. 137, 4 Gummere 137, 1916 N.J. Sup. Ct. LEXIS 51

Opinion

The opinion of the court was delivered by

Minturn, J.

The right of these relators to their salaries having been determined by this court (Gowdy v. State Board of Education, 84 N. J. L. 231), in the manner therein adjudicated, their legal right to payment in accordance with that judgment is incontestable upon this hearing.

In such a situation, the duty of the school board to levy the tax to pay the judgment, or to perform such other duty as may be necessary to, discharge the obligation becomes imperative and mandamus, will go against the representatives and agents of the school district to compel them to perform such duty. High Extr. L. Rem. 301; Pleasantville v. Atlantic City Co., 75 N. J. L. 279.

It is not a question of ultra vires with this defendant. Its power to raise the necessary funds is ample under the statute. Comp. Stat., p. 4742, § 55.

It is also manifest that the defendant will not be in anywise inconvenienced to the public detriment, in the performance of this legal obligation at the present time. If such a fact were apparent, it is clear that the issuance and return of the writ can be so regulated as to obviate the public inconvenience. Hopper v. Freeholders, 52 N. J. L. 313, 317.

The writ of peremptory mandamus will issue.