Hunziker v. Kent

• Citation: 168 A. 825
• Parties: HUNZIKER v. KENT.
• Decision Date: 31 October 1933
• Court: United States State Supreme Court (New Jersey)

168 A. 825

HUNZIKER

v. KENT.

Supreme Court of New Jersey.

Oct. 31, 1933.

Proceeding by Mathilda Hunziker for a writ of certiorari to review the action of Nathaniel Kent, Prosecutor of the Pleas of Passaic County, in abolishing the position of telephone operator in his office.

Writ dismissed.

Argued before Justice HEHER, sitting alone pursuant to the statute.

Minturn & Weinberger, of Newark, for prosecutor.

John D. Masterton, of Paterson, for defendant.

HEHER, Justice.

On September 16, 1930, the then prosecutor of the pleas of the county of Passaic appointed the prosecutor of this writ (hereinafter referred to as the plaintiff) to the position of telephone operator in his office, under the provisions of the Civil Service Act. Plaintiff had qualified in a competitive examination held in accordance with the provisions of that statute. On July 8, 1932, the present prosecutor of the pleas (hereinafter referred to as the defendant) advised plaintiff, by letter, that inasmuch as he had found that the "work can be satisfactorily handled by other employees of the office," he had "decided to abolish the position of telephone operator in the interest of economy," and that her services would not be required after July 15th then next.

The power of defendant to abolish this position for reasons of economy cannot be challenged. The Civil Service Act recognizes such right. P. L. 1918, c. 214, p. 776 (Comp St. Supp. § 144—101); P. L. 1930, c. 176, pp. 606, 623 (Comp. St. Supp. § 144—136 et seq.). But plaintiff insists that the position was not, in fact, abolished, and that, even so, the action taken is ineffective because defendant was "motivated by bad faith, and not for reason of economy," and she was not afforded a hearing.

The position was abolished in fact. Defendant so characterized his action in the notice served upon plaintiff. His intent and purpose are clearly manifested. That such was the effect of the action taken can hardly be questioned. No one was appointed to the position vacated by plaintiff. Her duties were transferred to clerk-stenographers and other members of the departmental staff, who assumed, apparently without undue interference with the performance of the duties appertaining to their respective positions, the work theretofore done by plaintiff.

It is said, however, that defendant, in testimony given in this cause, admitted that such was not his purpose. He testified as follows: "Q. You say that there will be a lack of funds commencing about October 1st? A. Correct. Q. It isn't your intention to abolish the office? A. It isn't within my contemplation." What he intended to convey by this statement is not clear. It is doubtful that he had plaintiff's position in mind. He had previously testified (hat the departmental appropriation would be entirely exhausted in one month, and he may have interpreted the question as an argumentative query as to what he would do when the appropriation was wholly expended. The inquiry along this line was not pursued further, and this alleged admission is entirely too vague and indefinite to overcome the formal declaration of abolition, and the evidence demonstrating such to have been defendant's intent and purpose. However, if it were merely a lay-off due to lack of funds, plaintiff cannot complain. This is also a right recognized by the Civil Service Act. P. L. 1918, c. 214, p. 776; P. L. 1930, c. 176, pp. 606, 623.

As to the second point, it is incumbent upon plaintiff to show that the position was not abolished for the purpose of economy. Colgarry v. Street Com'rs of Newark, 85 N. J. Law, 583, 89 A. 789. The presumption of good faith arises, and the burden is on plaintiff to show bad faith.

In substantiation of the claim that defendant was actuated by an ulterior purpose, it is pointed out that, in July, 1931, he illegally removed plaintiff from her position, and took the action now brought up for review within three weeks after she had been restored to her position, in accordance with the judgment of this court. See Hunziker v. Civil Service Commission, 160 A. 828, 10 N. J. Misc. 828. While this is significant, it obviously does not furnish the basis for a...