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Attorney-General v. Fitzsimmons.

78 N. J. L.

For affirmance-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, REED, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGII, VROOM, GRAY, DILL, JJ. 15.

For reversal-None.

EDMUND WILSON, ATTORNEY-GENERAL, EX REL. ROBERT S. DALENZ, PLAINTIFF IN ERROR, v. MICHAEL A. FITZSIMMONS, DEFENDANT IN ERROR.

Argued November 30, 1909-Decided March 17, 1910.

1. The act of March 3d, 1880 (Gen. Stat., p. 2335, pl. 42), is entitled "An act validating oaths taken before masters in chancery and notaries public in certain cases." Held, that it applies only to oaths taken before its passage.

2. The issue joined upon a plea to an information in the nature of a quo warranto was an immaterial one, and its immateriality was such that it could not be cured by repleader; the plea failed to show any title to the office in the respondent. Held, that the relator was entitled to judgment of ouster notwithstanding a verdict in favor of the plaintiff.

On error to the Supreme Court.

For the plaintiff in error, Edward D. Duffield.

For the defendant in error, Albert C. Wall (Vredenburgh, Wall & Carey).

The opinion of the court was delivered by

SWAYZE, J. This is a contest over the office of village clerk of the village of South Orange. The respondent justifies his retention of the office by virtue of the Civil Service act of 1908, which has recently, and since the decision of

49 Vroom.

Attorney-General v. Fitzsimmons.

this case in the Supreme Court, been held to be unconstitutional so far as relates to its adoption by municipal governmental boards. Attorney-General v. McGuinness. The Supreme Court held that the respondent was protected in the enjoyment of his office by this act and rendered judgment in his favor on that ground alone. That judgment must fail with the failure of the act and must necessarily be reversed. The question as to the form of judgment to be entered presents some difficulties. The proceeding is brought under special leave of the court in the name of the attorney-general, under section 1 of the Quo Warranto act, which has taken the place of the act of 1795, instead of under section 4, which has taken the place of the act of May 9th, 1884. The relator, however, claims the office, and the pleadings are sufficient to put in issue his title thereto. Since the passage of the act of February 18th, 1895, which now appears as section 12 of the Quo Warranto act, the court may determine the title of the relator in any action of quo warranto, whether by the attorney-general or by the claimant himself, and the Supreme Court, in fact, adjudged that the relator had no title to the office. To this exception was duly sealed, upon which error has been assigned, and we therefore must consider this question. The objection to the relator's title, based upon the Civil Service act, fails. With that obstacle out of the way there is no question that he was lawfully elected to the office, but it is insisted that under section 8 of the village charter (Pamph. L. 1872, p. 1207) the office must now be deemed vacant, because of the relator's failure to qualify in accordance with the charter. That supposed failure consisted in an omission to take the oath of office before a justice of the peace and to file the oath in the office of the village clerk as required by section 7 of the charter. In fact, the oath was taken before a notary public and commissioner of deeds, and this defect is fatal unless there is some statute which modifies the requirements of the village charter. Bullock v. Biggs, ante p. 63. There is a statute, approved March 3d, 1880 (Gen. Stat., p. 2335, pl. 12), which enacts that any official oath authorized to be taken

Attorney-General v. Fitzsimmons.

78 N. J. L.

and subscribed before a justice of the peace which may have been taken and subscribed before a master in chancery or notary public shall be deemed as valid and effectual as if taken and subscribed before a justice of the peace. We think that this statute is not applicable to official oaths taken after its passage. It applies only to oaths which "may have been taken," and the title indicates that the reference is to oaths taken prior to the passage of the act. "An act validating oaths," &c., cannot be construed as applicable to the future unless it is meant to have the effect of a general amendment of existing requirements. The objection that the oath was not filed in the office of the village clerk is untenable. It rests upon the theory that the respondent, Fitzsimmons, was the village clerk, for if the relator himself was village clerk, it could hardly be contended that he had not filed the oath with himself, when in fact he had taken it and presented it to one of the village trustees, while if neither was village clerk, there was no one with whom to file it. The defect in the oath itself is, however, fatal, and the trial judge correctly held that the relator had no title to

the office.

The postea states that the facts were agreed upon in writing, and such seems to have been the intent of the stipulation between the parties, for, although all that it says is that the following facts are agreed upon, it evidently means that those facts are all that are material, for there was no effort to prove anything further in the case. We might, therefore, proceed to award judgment were it not that there was an issue of fact which was found by the court sitting as a jury in favor of the defendant in error. This issue was whether or not the Civil Service act had been adopted in pursuance of its provisions by the board of trustees of the vil lage. In view of the decision of this court upon the Civil Service act, that issue was immaterial, and its immateriality is such that it cannot be cured by repleader. Upon the pleadings themselves the respondent fails to show a title to the office, and the relator is entitled to judgment non obstante veredicto. Judgment of ouster should be entered. Upon

49 Vroom.

Attorney-General v. McKelvey.

the findings there should also be judgment that the relator is not entitled to the office. Since, however, he prevails in securing judgment of ouster, he is entitled to costs in the court below.

For affirmance-None.

For reversal-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, REED, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, DILL, CONGDON, JJ. 16.

EDMUND WILSON

ATTORNEY-GENERAL, PLAINTIFF IN

ERROR, v. CHARLES D. MCKELVEY AND OTHERS DE-
FENDANTS IN ERROR.

EDMUND WILSON ATTORNEY-GENERAL, PLAINTIFF IN ERROR, v. WILLIAM A. HOPSON AND OTHERS DEFENDANTS IN ERROR.

EDMUND WILSON ATTORNEY-GENERAL, PLAINTIFF IN ERROR. v. WILLIAM BERGAN AND OTHERS, DEFENDANTS IN ERROR.

Argued November 24, 1909-Decided June 20, 1910.

1. It is not unconstitutional for the legislature to provide for a board of public works, composed of four persons not more than two of whom shall be members of the same political party.

2. The act creating a board of public works in cities having a population of not less than one hundred thousand nor more than two hundred thousand inhabitants (Pamph. L. 1907, p. 114), is not a private, local or special law affecting the internal affairs of towns or counties, within the constitutional prohibition.

On erior to the Supreme Court, whose opinion is reported sub nom. McCarter v. McKelvey, ante p. 3.

Attorney-General v. McKelvey.

78 N. J. L.

For the informant, plaintiff in error, Richard V. Lindabury.

For the defendants, John W. Griggs and William B. Gourley (Edward F. Merrey on the brief).

The opinion of the court was delivered by

SWAYZE, J. The question involved in this case is the constitutionality of an act of 1907 (Pamph. L., p. 114), creating a board of public works in cities now or hereafter having within their territorial limits a population of not less than one hundred thousand nor more than two hundred thousand inhabitants. The act is one of three acts passed at the same session, one of which (Pamph. L. 1907, p. 79) creates a board of fire and police commissioners, and another (Pamph. L. 1907, p. 89) creates a board of finance. In substance, these three acts establish a new city government for the city of Paterson, and give the three commissions thereby created such powers that it may fairly be said that the government is one by three commissions, appointed by the mayor.

The objections raised go to the constitutionality of the acts, which are challenged because they apply only to cities of the size mentioned, and because no more than two members of any board can be of the same political party.

As far as the latter point is concerned, we deem it unnecessary to add anything to what the Chief Justice said. with his usual clearness and force in the opinion of the Supreme Court, and it is perhaps unnecessary to add to what he said in that opinion upon the other objection. The point is an important one, however, and in view of the existing state of the decisions we think it advisable to state the reasons which have guided us.

The fundamental principle which is controlling upon the courts in passing upon the constitutionality of a statute has been nowhere better stated than by Mr. Justice Garrison, speaking for this court, in Attorney-General v. McGuinness, ante p. 346. After reviewing the authorities, he says (at p.

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