For the prosecutor, Nicholas O. Beery.
For the respondents, William R. Rogers.
Before Justice Heher, pursuant to the statute.
The opinion was delivered by
HEHER, J. On August 31st, 1927, the prosecutor was duly appointed to the position of court attendant of the county of Passaic, under the provisions of the Civil Service act. 3 Comp. Stat., ch. 176, p. 3795, of the laws of 1930 (Pamph. L. 1930, p. 606). He served in that capacity until January 31st, 1933, when he was notified by the sheriff that, because of a curtailment of the departmental appropriation, he was compelled to reduce the staff of court attendants, and that his services "will no longer be required after January 31st, 1933." Two days later the sheriff, presumably to make definite the prosecutor's status, advised him by letter that, for the reason stated in the prior notice, his services were "temporarily dispensed with." The facts are stipulated. Prosecutor served in the overseas army of the United States during the world war, and was honorably discharged. When the action complained of was taken, the staff of court attendants consisted of twenty-one persons (eighteen males and three females), all of whom were entitled to the protection afforded by the Civil Service law. Eight of those retained did not have the status of war veterans, but their appointments antedated that of prosecutor.
The sheriff is not charged with bad faith. That he acted in the performance of what he conceived to be a public duty is beyond question. There was a reduction of $52,678 in the departmental appropriation for the year 1933, as compared
with the prior year, and he was confronted with the necessity of reducing the force under his control in order to bring the operating cost within the budget allowance.
Prosecutor does not contend that he has been deprived of any right conferred by the Civil Service law. Apparently, the provisions of that act relating to the separation of employes "from service for a limited time, for reasons of economy," and "order of lay-off when forces must be reduced because of lack of funds or work," were not disregarded. Pamph. L. 1918, p. 776; Pamph. L. 1930, pp. 606, 623.
It is insisted, however, that the action taken by the sheriff contravenes the provisions of paragraph 3 of chapter 14 of the laws of 1907 (Pamph. L. 1907, p. 37), prohibiting the abolition of a position or office held by an honorably discharged was veteran. The argument seems to be that, under this section, it became the sheriff's duty, in determining the positions to be abolished, to retain those within the favored class created by this statute, in preference to those who were not.
But it is clear that the prosecutor's position was not "abolished" in the sense that the term was employed by the legislature. It has been held in another jurisdiction that "laying off or suspension for lack of work or lack of appropriation, no one else being appointed to fill the position, is in effect abolishing the position, and not a removal." Reilly v. Smith, 156 N.Y. Supp. 686. The question, however, is one of statutory construction. It is an established rule in the exposition of statutes that the intention of the legislature is to be derived from a view of the whole and of every part of the statute, taken and compared together. The real intention, when ascertained, will prevail over the literal sense of terms. The meaning of general words must be restricted whenever it is found necessary to carry out the legislative intention. The reason and spirit of the statute controls in its ...