For the prosecutors, Sydney D. Walters (Thomas F. Ryan, of counsel).
For the respondents, Sidney Goldmann.
Before Justices Trenchard, Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Were the prosecutors legally dismissed from their positions in the department of public works and service of the city of Trenton?
The prosecutors are three in number. By stipulation of counsel their causes have been consolidated and will be treated as one. Each held a position in the competitive classified civil service. On August 17th, 1935, they, together with other employes, executed affidavits charging one Johnson, their foreman, with having padded the payroll, with having used city employes for private work during city hours, with favoritism and with other irregularities. Johnson and the prosecutors were suspended pending formal hearing. The pertinent provisions of prosecutors' notice of suspension read as follows:
"Because of certain charges and allegations you have made in an affidavit signed by you and sworn to before the City Attorney, in which you admit having knowingly received and accepted on a number of occasions pay in excess of that due you, without having called Mr. McAvoy's attention [Mr. McAvoy is the clerk of the street department and in charge of making and keeping record of time, payroll, &c., of employes] to such excess at the time you received it or without out having offered to return it to the city, it becomes my duty as Director of the department to suspend you until such time
as the charges contained in your statement can be formally heard before Mr. Paul Morton, City Manager, as provided by law."
Johnson's hearing was had. Prosecutors appeared as witnesses for the city. During the hearing, the city manager, who was the presiding officer, announced that he would, unless there was objection, determine the status of the prosecutors at the same time he determined the status of Johnson. No objection was made to the suggested procedure and hearing of all the parties was had upon the merits. Johnson was found guilty of having had city employes work on his car during city hours, but was absolved of all other charges. He was suspended for two months and two weeks without pay. The prosecutors were discharged from their positions because, in the opinion of the city manager, they "maliciously" and "with premeditation falsely" swore against Johnson. Prosecutors applied for and were given a hearing before the Civil Service Commission. Rev. Stat. 11:22-39. That body, although it affirmed the action of the city manager, expressly refused to pass upon the question as to whether prosecutors had committed perjury. Its decision was predicated upon the findings that prosecutors "deliberately joined in an effort to harm and damage their fellow employe having authority over them, in his reputation and position;" that "some or all of them undertook to influence other employes to take similar action and make similar or comparable statements;" that "they failed to establish the charges made in their affidavits;" and, finally, that "the whole procedure shows that their conduct and attitude are not conducive to proper discipline and in the best interests of their employer, the city." This court granted certiorari.
Prosecutors set down twelve reasons in support of their contention that their conviction and resultant dismissal should be set aside. Ten are argued under three points; the remaining two are abandoned.
Reasons 1, 3 and 5, under point 2, concern the weight of the evidence, and reasons 6 and 7, under point 3, concern the refusal to grant the motion made for prosecutors to direct a verdict in ...