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93 N. J.L.

Kowalski v. Director General of Railroads.

On appeal from the First District Court of Jersey City.

Before Justices BERGEN, KALISCH and BLACK.

For the appellant, Vredenburgh, Wall & Carey.

For the respondent, Isaac F. Goldenhorn.

The opinion of the court was delivered by

KALISCH, J. The question growing out of the facts of this case is whether the plaintiff, who, being in the employ of the Pennsylvania Railroad Company, having been arrested and convicted in a police court of Jersey City, upon a complaint alleging that he stole a pair of shoes from a car of his emplover, and, as a consequence of the accusation, was detained in jail six or seven days awaiting a trial, can properly be charged with having left his employer's service voluntarily, and thus be debarred from recovering the wage increase provided by the defendant to be effective from January 1st, 1918 ?

From the evidence in the case it appears that 'the plaintiff had worked for the railroad company about seven years. His particular employment, from January 1st, 1918, to May 15th, 1918, was that of a gang leader. He was paid thirtytwo cents an hour and he worked twelve hours a day, including Sundays.

By virtue of General Order No. 27, dated May 25th, 1918, and Supplement No. 4, dated July 25th, 1918, issued by defendant, director general of railroads, the plaintiff claimed in the court below the increase to fifty-eight cents an hour as the wage to be paid according to the order.

The provision of Supplement No. 4 is as follows: “The increases in wages and the rates established shall be effective as of January 1st, 1918, and are to be paid according to the time served to all who were in the railroad service, or who have come into such service, and remained therein. A proper ratable amount shall also be paid to those who for any reason since January 1st, 1918, have been dismissed from the service, but shall not be paid to those who left it voluntarily."

Kowalski v. Director General of Railroads.

93 N.J. L.

The only point made and contended for by counsel of appellant in the court below, and now here, was and is, that the plaintiff has disentitled himself to any of the increase of wages from January 1st, 1918, to May 15th, 1918, because the plaintiff, on May 15th, 1918, was arrested and locked up for an alleged theft of the goods of his employer, and that this in effect was a voluntary leaving by the plaintiff of his employment.

The general tenor of the argument urged upon us to sustain this contention is, that to permit the plaintiff “to recover retroactive back pay granted by the sovereign power as a reward for loyal service after that employe has robbed his sovereign,” would practically allow “the plaintiff to take advantage of his own wrong and to found a claim upon his own iniquity.”

There is no pretence that the plaintiff did not render loyal and efficient service to his employer from January 1st, 1918, to May 15th, 1918, before he committed the alleged theft. The fact that he was arrested and locked up on a criminal charge was wholly without any significance, unless it was shown that the plaintiff created the situation for the purpose of abandoning the employment of the railroad company. And this does not appear from the evidence. But, on the contrary, it appears that the plaintiff's arrest was caused by the railroad company, his employer, and it is therefore inconceivable upon what plausible ground it can be even argued that the plaintiff left his employment voluntarily. According to the appellant's theory, the plaintiff would be chargeable with having voluntarily left his employment, if, during his service, he was arrested for an alleged offence committed upon a stranger, or was arrested upon civil process at the suit of a third person, and being unable to give bail was locked up to await a trial and the disposition of his case.

We think that the question of the plaintiff's arrest, or even of his guilt or innocence, is wholly foreign to the situation presented here. The pertinent inquiry is, Did the plaintiff voluntarily leave his employment? Webster defines the word “voluntary" "acting without compulsion, or without being in

93 N. J. L.

Kowalski v. Director General of Railroads.

fluenced by another; acting by choice or one's own accord or free will.” In the case sub judice it became a question of fact for the trial judge to determine whether the plaintiff left his employment voluntarily, and the facts not only justified the court in finding that the plaintiff did not, but also that he was dismissed from the service of the railroad company. A reference to the order issued by the defendant shows that the extra compensation was to be paid to an emplove “who for any reason since January 1st, 1918,” has been dismissed from the company's service. The term "for any reason” is as broad in its scope as the general sense of the term implies. A dismissal of an employe from employment for theft, or for inefficiency, or for any proper or improper ground of discharge, would come clearly within the meaning of the term, and would be no bar to a recovery of the back pay.

A careful examination of the evidence in the cause shows that there was proof of facts and circumstances which taken together were tantamount to a dismissal of the plaintiff from his employment by the railroad company.

Before concluding, we think the plaintiff is entitled to have it stated that there was no competent proof in the case upon which the trial judge could have based a finding that the plaintiff was guilty of the alleged theft. The plaintiff denied guilt. After the case was rested, on part of plaintiff, the following colloquy took place between counsel: “Mr. Gormley—I think it is consented that this man was arrested and convicted on the charge of petty larceny. Mr. Goldenhorn-: We admit that, and we regret that we have not any method of appeal.” Hereupon follows an admission that "the plaintiff was convicted on the charge of petty larceny by Judge Leo Sullivan, of the First Criminal Court of Jersey City, and that the sentence was that the plaintiff pay a fine of $25 or ninety days in jail, and that the plaintiff paid the fine.'

Of course, this was not evidence in the civil suit of the truth of the facts. The only legal effect of this admission was to put the record in evidence so as to affect the credit of the witness.

Public Service Ry. Co. v. General Omnibus Co. 93 Y.J.L.

There was no proof offered in the case that the plaintiff committed the alleged theft, and, as has already been observed, we are unable to perceive, even if the plaintiff did steal the shoes, what material bearing that fact, under the terms of the order, could have on the issue tried by the court below.

The judgment is affirmed, with costs.

PU'BLIC SERVICE RAILWAY COMPANY, PROSECUTOR, v.

GENERAL OMNIBUS COMPANY OF NEW JERSEY AND THE CITY OF NEWARK, RESPONDENTS.

Argued June 4, 1919—Decided October 21, 1919.

1. An omnibus company is among that class of persons who are en

titled to receive a franchise for the use of public streets under

the Limited Franchise act of 1906. Pamph. L., p. 50. 2. Section 2 of the act of 1906 (Pamph. L., p. 50) does not require

the board of commissioners of a municipality in which there is a newspaper published and circulated to designate the particular newspaper. or newspapers in which the statutory notice is to be

published. 3. Since the enactment of "An act concerning municipalities," ap

proved March 27th, 1917 (Pamph. L., p. 319); as amended in 1918 (Pamph. L., p. 478), the passage of an ordinance granting a franchise or right to occupy or use public streets may be law

fully effected by a majority vote. 4. The Home Rule act (Pamph. L. 1917, p. 319), as amended

(Pamph. L. 1918, p. 478), furnishes a full and complete scheme for the governing of municipalities, defining their powers, and

the procedure and method of enforcing them. 5. When it appears that the legislature inserted a non-repealing

clause in a statute in relation to procedure for the passage of an ordinance, and in a later amending statute providing for procedure, left out the non-repealing clause, it by necessary impli

cation repealed such procedure clause of the former statute. 6. The fact that the Home Rule act (Pamph. L. 1917, p. 319) as

amended (Pamph. L. 1918, p. 478) makes no provision whatever as to what vote shall be sufficient for the passage of an ordinance or the transaction of any other lawful business, is a cogent cir. cumstance tending to establish that the common law rule, that a majority of the members of the municipal body constituting a quorum shall be sufficient for the purpose mentioned.

93 N. J. L. Public Service Ry. Co, v. General Omnibus Co.

On certiorari.

Before Justices TRENCHARD, BERGEN and KALISCH.

For the prosecutor, Frank Bergen.

For the General Omnibus Company, Riker & Riker.

For the city of Newark, Jerome T. C'ongleton.

The opinion of the court was delivered by

KALISCH, J. The prosecutor seeks to set aside an ordinance entitled “An ordinance granting permission and consent to General Omnibus ('ompany of New Jersey, a corporation, to operate auto buses and to use the surface of the streets hereinafter named for that purpose.”

The ordinance grants consent and permission to the omnibus company to operate auto buses, and the use of the surface of the streets, avenues, &c., in the city of Newark for the operation of the buses upon the routes designated in the ordinance.

Subdivision A of section 2 of the ordinance provides that the consent is granted subject to the terms and conditions imposed by chapter 136 of the laws of New Jersey, session of 1916, which act is entitled "An act concerning auto buses, commonly called “jitneys,' and their operation in cities,” said act being commonly designated “Kates act.” Pamph. L. 1916, p. 283.

The validity of this ordinance is challenged, first, upon the ground that the omnibus company is not such a corporation as is entitled to ask for or receive the consent purporting to be given by the ordinance, under the Limited Franchise act of 1906. Pamph. L., p. 50: Comp. Stat., p. 3562. $ 396.

In plain terms the prosecutor's contention is, that the act of 1906 does not contemplate an omnibus company as belonging to that class of persons who are entitled to receive a franchise for the use of the public streets.

The defendant omnibus company made its application to

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