The star and Newark advertiser. [volume] (Newark, N.J.) 1908-1909, 1909-02-13
By Courts Decision Victor
Becomes County County Ply Ply
SiCian on Tuesday.
LOSER CLAIMED PROTECTION
UNDER CIVIL SERVICE
Opinion Also Affects Collector,
Engineer and Several
More Officials.
DR.. ELLl0TT'S COUNSEL
MAY APPEAL THE CASE
Justice Swayze Calls Unconsti-
tutiOnal Part of Civil Service
Including Vice-ChanceIIors.

Supreme Court Justice swzyze hand-
ed down a decision today under which
DIR. william HI. Mckenzie, Republican.
will become county physician on Tues
day. displaeiag DE-. Daniel EI1fort.
Democrat, the present incumbent. un-
less the decision is appealed. DR.. Me-
kenzie was appointed by the Repub-
Iiesn Board of Freehoiders Hast De-
eember after the civil service recur.-
items had been adopted by the county.
and his title to the ofIce vas iispufed
by DIR. Elliott. who claimed that be
was protected by the civil service. The
case was taken to the Supreme Court
to decide the interpretation of the civil
service law.
An appeal from the decision to the
Court of Errors and Appeals, which
would act as stay under which DIR.
Elliott would remain in Office until the
higher tribunal had passed on the case.
may be made. John R. Hardin, DR.. Ell
hott's lawyer, announced today that he
had not determined upon the course
be would follow
Decision Ffts Ten CAGES.
This decision also decides the con-
tests for the offices of county collector.
county engineer, warden of the pen
itentiary, superintendent Of the Court
House and other offices, ten in all,
which were filled by the Board of Free
holders declared Mr.. Church. "The
court decides that all officers whose
terms are fixed by law do not come
within the civil service"
The principal offices, other than that
of county physician, which viii be oe-
cupied by the contestants, are those
of county collector and county en-
gineer. DR.. Patrick J. McGuinness.
county collector. and George F. Drut,s.
county engineer, the present occupants
took the same stand as DR.. Elliott and
placed their cases in the hands of Her.
bert Boges and Frank H SommeI-
Richard w. Booth was appointed coun-
y collector by the freeholders and
James Owen county engineer. They
employed Mr. Church to obtain writs
of custer so that they might fill the
offices. The cases now walt final argu-
nent
There is nothing now to argue. how
ever, MT. A50bttH uBCldfNOs Inns QS-
cision covers their cases The Nc
Kenzie-Elliott suit was a test case"
Justice Svayze does not attempt to
decide whether the entire civil service
law is unconstitutional. although tllEt
important point was raised by Alcn<c
Church. DR.. McKenzie's lawyer. TAe
Justice declares that "a constructtor
which leads to declaring an act unccn
1. q
It can be avoided" But he does decide
which includes vice-chanceliors within
its rulings. is unconstitutional
Courts Pertinent query.
The court in effect asks the question::
If DR. Elliott is not the head OF hts
department, who Is: in answer 10 the
point that the county physician ia
protected by the civil service because
he does not head department The
Beard of Freeholders certainly II NOT
the head of the department, the court
declares because the board is the coum-
" legislature, and not commission.
Heads of departments can be removed
under the civil service law 1t was ths
question whether the county physicisn
was head of 8. department or not that
was the main point at issue.
Following is Judge Swayzes's opiHtcn;
l. think the election Of ths de-
fendant in May. 1907, IL valid. rould
only have been for the unexpired term
of his predecessor. and not for new
term of two years from the date Of
his own election. The act of 1900 doeH
not expressly define the term in case
of an election to fill vacancy, but
1t evidently contemplates that the term
OF service shall end with the 1rst Mon
day OF December of every second year.
so as to be co-terminous with the term
OF the freeholders.
.. The question raised as to the coI-
stitutionality of the act of 1908, called
the civil service act, is an interesting
question IT, as the defendant contends
the effect of the act is to give him
n secure tenure during good behavior
BY section l2 the Civil Service Commits
sion is directed to arrange offices. po-
sitions and employments in the classi-
fed service in four classes, one rf
which is called the exempt class. 10
which appointments may be made with
out examination. Two other classes 4re
called respectively competitive and
non-competitive In these classes ~
pointments can only be made after an
examination and section enacts that
officers clerks and employees now in
the employ Of the State or any ulunic-
ipaIity adopting the act shall con-
tinue TO hold their Offices or employ
ments and shall not be removed there
from except after a written statement
pf the reasons for removal ana ar
opportunity to make 4 written sagwers
Rrer, ~htrb Il may {aixir hn fHfnGWn&