dissenting.
N The majority of the court and I are in complete agreement on the law of the case which is that an employe within the protection of the civil service statutes of the state, as was the relator, can not be removed excepting as provided in §485-17 a GC, which was not complied with in any particular by the county commissioners; and that a removal of such employe can not be lawfully accomplished by abolishment of the position which abolition is a mere subterfuge or guise.
We also agree that the decisive question in this case namely whether the abolishment of relator’s position was a mere substitute or guise, is an issue of fact which “must be determined from the facts” as they existed at the time of the trial, including the adoption of the resolution and other subsequent acts of respondents, and “conditions then existing”.
But to those facts there must, in my opinion, be added all other relevant facts existing at any time prior to the trial.
One of those facts is that the result of the attempted abolition of relator’s position and fixing the salaries of other positions at the court house and a position at memorial hall which were the two county buildings involved, was a saving of only five dollars a month instead of twenty dollars a month.
I differ from the holding of the majority of the court, that the major portion of relator’s duties consisted of personal reception of and ministration to female visitors at the ladies waiting room also called the rest room, in the court house, although such duties were to an appreciable extent important.
However, in this case the ordinary test of abolishment of a position, to-wit, subsequent performance of substantially all the duties, by other employes, is not applicable oecause men or a man can not properly perform any of the duties at either the ladies rest room in the court nouse or the women’s comfort station (equipped as each is with toilets for females only), during the hours they are publicly open for female visitors exclusively.
At this stage of culture in the United States it is to be regretted that it becomes necessary to say in a judicial opinion that women’s rest rooms and comfort stations when open to the female public only, should not be in charge of male caretakers or attendants.
Where the case presents as does the instant one, the sole question whether the abolishment of a position was in reality only a mere guise or subterfuge to remove an incumbent, neither the recital by the record, of conditions economic or financial nor of other factors, prior or subsequent to the attempted abolition can be conclusively controlling, because control of conditions may be so exercised as to produce abolishment lawful in form but unlawful in fact.
Indeed human ingenuity seems boundless in matters of political finesse where patronage is at stake.
It was not within the power of the county commissioners to in any manner whatsoever remove relator excepting as we have said pursuant to §485-17 a, and hence there was no room for the exercise of a different discretion in the matter of removal.
Therefore the “decisive” or “determinative” question is solely whether when the commissioners adopted the order of abolishment their controlling motive or purpose was to separate relator from her position.
Before the order purporting to abolish relator’s position was made by the commissioners there were four employes in entire charge of the court house, the rest room in the court house and both the men’s and women’s comfort stations, namely, two mnitors. the caretaker of the men’s comfort station, *543each of those three persons being a man, and relator, a woman; and smce then precisely the same number, four, namely, one day custodian, two night custodians, and the caretaker at the men’s comfort station, with the result that relator is ousted from her position, and either the day custodian or one of the two night custodians, placed in a newly created position; the only difference being that where there should be as there has always been throughout many years past, a woman caretaker at the two rest rooms for women ■during the open hours, there is none at either of the two places, while at the men’s comfort station a man remains caretaker as in the long past; and in every feature excepting the presence of a woman caretaker at the ladies waiting room and comfort station, all three places.are functioning exactly as they have done continuously ever since they were established.
Otherwise stated the gap in the total work left by the absence of relator, has been filled by supplanting the two janitors with the three custodians.
The speed attending that supplanting is noteworthy, as it occurred the very first full business day after relator’s attempted dismissal
December 30, 1939, Saturday, was a half holiday at the court house; the following day was Sunday, the 31st; Monday was a holiday; and all the time from Saturday noon until Tuesday, January 2, 1940, all the offices in the court house were closed to public business.
There is no evidence that the county was in financial distress, and I can-mot believe that the county commisisioners intended to repudiate the agree-I.ment (although it was wanting in legal formality) so long existing and observed, made by their predecessors with the representatives of the local organizations of women, and thereby leave both the ladies waiting room and the women’s comfort station to permanently remain open without a woman attendant. To say the least, the agreement constituted a moral obligation, and 1 would rather think that they honestly believed and acted on the belief that the ever ceaseless changes wrought by time in human impulses would soon furnish forth the opportunity for them to ■ appoint another competent woman to their approval politically.
These definitions are copies from Webster’s New International Dictionary Second Edition;
“Guise. A cover or cloak.”
■ “Subterfuge. A device, plan or the like, to which one resorts for escape or concealment; an artifice employed to escape censure or the force of an argument, or to justify opinions or argument; an evasion.”
Viewed in that light 1 am clearly of opinion that all the material circumstances and features of fact of the present case point unerringly to the conclusion that it was the sole motive and purpose of the commissioners when passing the resolution purporting to abolish relator’s position, to work her removal, and not to abolish her position.
By the reasoning of the majority opinion, if a woman had been appointed in place of Mrs. Hubbard, the relator, the latter would be now entitled to restoration to her position. It must follow from that reasoning, that if in the future a woman should be appointed while the other facts and circumstances remain as they are, a case thereafter instituted by relator for restoration, would produce that, result.
But it is my conclusion upon the existing facts and circumstances she is now certainly entitled to be restored with accrued pay.