The opinion of the court was delivered by
Kolovsky, J. A. D.
Defendant Board of Education (Pine Hill board) appeals from a final decision of the State Board of Education (State Board) which affirmed a decision of the Acting Commissioner of Education (Commissioner) that petitioner Gladys M. Canfield has tenure as a teacher and is to he reinstated immediately “with all such rights as she would have enjoyed had she not been deprived of her employment.”
Four written contracts of employment on forms provided by the Commissioner pursuant to N. J. S. A. 18:13—7 were entered into between the Pine Hill board and petitioner. The first, dated December 12, 1962, provided for petitioner’s employment as a teacher from November 19, 1962 to June 30, 1963; tbe second, dated April 15, 1963, for her employment from September 1, 1963 to June 30, 1964; the third, dated April 14, 1964, for her employment from September 1, 1964 to June 30, 1965, and the fourth, dated April 20, 1965. for her employment from September 1, 1965 to June 30, 1966.
The fourth contract contained the following provision:
“It is hereby agreed by the parties hereto that this contract may at any time be terminated by either giving to the other 60 days’ notice in writing of intention to terminate the same, but that in the absence of any provision herein for a definite number of days’ notice, the contract shall run for the full term named above.”
An identical paragraph appeared in each of the first three contracts except that the notice period provided therein was 30 instead of 60 days.
On November 15, 1965 the Pine .Hill board wrote a letter to Mrs. Canfield reading as follows:
“The Board of Education of the Borough of Pine Hill herein notifies you that as of November 15, 1965 they are terminating your teaching contract, to take effect immediately, with this District, giving you two months pay.”
Enclosed with the letter was a check for two months’ pay which petitioner promptly returned, asserting that she had tenure.
The Commissioner and the State Board, which adopted the Commissioner’s decision, ruled that petitioner has tenure under clause (c) of N. J. S. A. 18:13-16 which provides in pertinent part as follows:
“The services of all teachers, * * * shall be during good behavior and efficiency, (a) after the expiration of a period of employment of 3 consecutive calendar years in that district unless a shorter period is fixed by the employing board, or (b) after employment for 3 consecutive academic years together with employment at the beginning of the next succeeding academic year, or (c) after employment, within a period of any 4 consecutive academic years, for the equivalent of more than 3 academic years, some part of which must be served in an academic year after July 1, 1940; * * *.
An academic year, for the purpose of this section, means the period between the time school opens in the district after the general summer vacation until the next succeeding summer vacation.”
The Pine Hill board does not dispute the Commissioner’s determination that since petitioner’s employment began on November 19, 1962, “employment on November 20, 1965 would provide for her the equivalent of more than 3 academic years within the period of 4 consecutive academic years beginning with the 1962-1963 academic year.” But it does dispute the Commissioner’s ruling that
“* * * petitioner’s employment did not terminate on November 15, 1965, as respondent [the Pine Hill board] purported to accomplish, but barring any intervening rights, would have terminated 60 days thereafter. Thus, petitioner was in fact employed on November 20 and thereafter, and thereby acquired tenure of employment in respondent’s schools.”
The Commissioner held that the contract of employment could not be terminated without 60 days’ prior notice; that while “a board of education may terminate the services of a teacher when it gives notice, * * * it may not terminate the employment until the expiration of the period of notice provided in the employment contract.” Eeference was made to other decisions of the Commissioner and the State Board which recognized “the legal significance of the difference between service and employment” as used in the Teachers’ Tenure Law.
We agree with the determination of the State Board and the Commissioner and affirm.
The notice served by the Pine Hill board on November 15, 1965 “terminating [petitioner’s] teaching contract, to take effect immediately,” clearly was ineffective to that end in face of the express contract provision permitting its termination only on 60-days’ prior notice. There is no suggestion or claim that there is any authority for terminating the contract other than the reserved right to terminate. To exercise that right on November 15, 1965 required service of notice of termination at least 60 days prior thereto.
The Pine Hill board had the power to prevent the petitioner from continuing to render services as a teacher after November 15, 1965, even though in doing so it broached its contract employing petitioner. But the exercise of that power did not terminate petitioner’s employment. To terminate the employment prior to November 20, 1965, when petitioner acquired tenure, required service of the notice not later than September 20, 1965, a course which the Pine Hill board had available to it but did not adopt.
The Teachers’ Tenure Law, N. J. S. A. 18:13-16, measures the right to tenure in years of employment, not in years of service. “Employment” is the word used in the statute, not “service.” (Eor only the one year that the 1934 amendment (L. 1934, c. 188) to that section was in effect did the Tenure Act refer to “service” in measuring the right to tenure; the reference was eliminated when the section was again amended by L. 1935, c. 27.)
Although normally the period of a teacher’s employment and her service coincide, when they do not, as here, the difference in the two terms must be recognized and given effect. That difference has been recognized by the State Board and the Commissioner in administering the law, a factor which gives supportive weight to our construction of the statute.
“The principle is well established that practical interpretation by an administrative agency is entitled to great weight in construing statutes in order to ascertain their meaning, to explain a doubtful phrase or to illuminate any obscurity.” State v. LeVien, 44 N. J. 323, 330 (1965)
We do not agree with our dissenting colleague that N. J. S. A. 18:13-11 and N. J. S. A. 18 ¡13-11.1 furnish legislative support for the position advocated by defendant. Neither section relates to tenure rights.
N. J. S. A. 18 ¡13-11 was originally enacted as part of the School Law of 1903, L. 1903, c. 1, and antedates the first Teachers’ Tenure Law, L. 1909, c. 243, by six years. (The sole change effected by the 1954 amendment, L. 1954, c. 80, was a grammatical change in the last clause.) In the circumstances envisioned by the School Law section, the reinstated teacher would be a Name duck” employee for the balance of the contract term, with no prospect of reemployment. The object of the section is to enable the local board to avoid the problems and embarrassments inherent in her continued presence in the school.
This, too, is the object of N. J. S. A. 18 ¡13-11.1 applicable to the circumstances in which the teacher’s Name duck” status results from the exercise of the right reserved in the contract between the teacher and the board to terminate the employment on notice.
The question reserved in Thomas v. Bd. of Ed. of Morris Tp., County of Morris, 46 N. J. 581 (1966), affirming 89 N. J. Super. 327 (App. Div. 1965), is not involved in this case. In dealing with the contract of a superintendent of schools whose appointment may be for a term up to five years, N. J. S. A. 18:7-70, the court there said:
“We reserve, however, the question whether mere execution of the three-year contract of employment entered into on August 18, 1961 between Thomas and the Board of Education, even if it had been a valid one, would have given tenure to Thomas.”
We are not concerned here with an employee who may originally be appointed for a term in excess of the three-year period provided in the Tenure Law but with a teacher who may only be and was employed for successive one-year periods, N. J. 8. A. 18:13-6.
Finally, we are satisfied that a teacher employed under annual contracts for the number of years of employment specified in the Teachers’ Tenure Law is not to be deprived of her right to tenure because the local board, in violation of her employment contract, terminates her services and prevents her from teaching during the balance of the current annual contract period. Cf. City of Knoxville v. State ex rel. Hayward, 175 Tenn. 159, 133 S. W. 2d 465, 469 (Sup. Ct. 1939).
In Knoxville the city’s board of education had “elected” relator Hayward as a teacher for three consecutive school years, “the last of said elections being in April 1937, for the school year 1937-8.” During the latter year she was dismissed because she had married on December 26, 1937. A regulation of the board prohibited the appointment of married women as teachers and equated marriage during employment to an “immediate resignation.” A Tennessee statute granted tenure to teachers “who have been employed by the Board of Education of the City of Knoxville for the third year from the time of their appointment or employment,” and prohibited the dismissal of tenure employees except for specified causes and after notice and a hearing.
In affirming a judgment ordering the board to restore relator as a teacher, the Supreme Court of Tennessee ruled that the dismissal was illegal because the statute did not list marriage as a cause for removal. The court then dealt with the board’s further contention that because relator had been dismissed during the third year she had not been “employed for the third year from the time of her appointment” as required by the tenure statute. The court’s rejection of that argument is apposite to the instant case:
“It is true that relator was dismissed during her third year; but we construe the language of the statute as meaning the employment of a teacher for the third year from the time of his or her appointment, brings the teacher under the Act. The language of the Act is not that the teacher shall have served three years, but, on the contrary, the language is ‘employed * * * for the third year. (at V. 469)
The decision of the State Board of Education is affirmed.