Womsley v. Mayor of Jersey City

39 A. 710, 61 N.J.L. 499, 32 Vroom 499, 1898 N.J. Sup. Ct. LEXIS 163

• Court: Supreme Court of New Jersey
• Decided: February 15, 1898
• Status: Published

Opinion

The opinion of the court was delivered by

Garrison, J.

The prosecutor of the certiorari is an hon•orably-diseharged Union soldier. On June 29th, 1895, he was •employed by the defendant under the following resolution :

“Resolved, That James Womsley be and he is hereby appointed as reservoir keeper at High Service (vice Theo. Meedles), said appointment to become effective from and after .June 30th, instant.”

Pursuant to this appointment the prosecutor performed the ■ duties of reservoir keeper by residing on the spot and being in constant attendance there, taking care of the grounds, telephoning the height of the water twice daily, reporting breaks in the reservoir, shutting off the gates and weighing the coal •delivered at High Service.

On February 8th, 1897, the. following resolution was adopted by the board of street and water commissioners:

“Resolved, That from and after February 28th, instant, the position designated ‘ reservoir tender ’ at High Service .be abolished, aud that the services of James Womsley as said reservoir tender be dispensed with from and after that date.”

On June 19th, 189.7, the. prosecutor, at .the request of the, engineer in charge at High Service, delivered up the keys hut continued to perform the same duties, except that, from that date until August 24th, 1897, he did not take and telephone the height of the water.

On August 24th the keys were redelivered by him to the-engineer, and he resumed all of his former services. ■

On May 12th this resolution was adopted:

“Resolved, That James Burke be and he is hereby appointed-as general overseer at High Service pumping-station.”

And five days later it was

“Resolved, That the two several resolutions heretofore adopted* by this board May 12th, 1897, (first) appointing James Burke as general overseer at High Service pumping-station, and (second) fixing the salary of said office, be and are hereby reconsidered and rescinded.”

James Burke never reported for duty. The prosecutor has-continuously performed' the duties above enumerated, which are specially pertinent to his position and of a permanent and-essential character.

Assuming that by the abolition of the position of “ reservoir tender” the position of “reservoir keeper,” to which the-prosecutor was appointed, was intended to be and was effectively designated, the facts above detailed show clearly that the duties of the place were not done away with, altered or merged into any other service. In fact, the elusive character' of the pretended abolition is too plain to require any demonstration. It was in effect an evasion of the sort that was forbidden by section 3 of “An act regarding honorably-discharged Union soldiers, sailors and marines.” Pamph. L. 1895, p. 317.

The resolution of February 8th is set aside, with costs.