Wilson ex rel. Dalenz v. Fitzsimmons
75 A. 924
N.J.
1910
Check Treatment

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 *619this ease 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 he 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 lie was lawfully elected to the office, hut it is insisted that under section 8 of the village charter (Paraph. L. 1872, p. 1207) the office must now he 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. Tn fact, tiie 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 charier. Bullock v. Biggs, ante p. 63. There is a statute, approved March 3d, 1880 (Gen. Stat., p. 2335, pl. 42), which enacts that any official oath authorized to be taken *620and 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 oatli 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 fads 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 vih 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 *621the findings there should also he 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 — Yone.

For reversal — The Chancellor, Chief Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voohees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, Congdon, JJ. 16.