Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1910-03-18
COURT DECIDES
AGAINST BOTH
OFFICE CLAIMANTS
Holds Neither Dalenz Nor Fitz=
simmons Are Entitled to Office
of SO. Orange Village Clerk.

In an opinion Justice Swayze, in tn
court of Errors and Appeals, holds thai
neither Robert :. Dalenz nor Michael
A.. Fitzsimmons are entitled to hold tn
Office of village clerk Of South Orange.
The suit was brought by Dalenz, who
was regularly elected clerk of the vii
Iage. but was unable 10 . K mis- oftic3
because Fitzsimmons would not yaeate,
claiming that he was protected by the
provisions Of the civil service law.
which at the time was in operation. and
has since been declared ~unconstitu-
uonal.
When the case was heard in the SUI
nre.ne Court. that court held h a F9tz-
simmons was protected by the civil
service law. The Court OF Errors now
holds that inasmuch as the Court OF
Errors has declared the law invalid, 1t
necessarily follows that the judgment
~ favor Of Fitzsimmons must be re-
rersed.
The question as to the form Oh the
Judgment to be entered presented sew
ersl difficulties. The proceedings were
bro,lrht under special leave Of the court
in rhe name OF the Encouragement
rnd.r the first section Of the u war-
eanno act. Mr.. Dalenz, however,
claimed title t. the oiiice. and Justice
Swayze said that the %pleadings wero
sufficient to put in issue his title there
TO. With the civil service provision u
If the way the court said there is no
question that Dalenz was lawfully
elected, though the validity Of his title
uyas questioned, because of his failure
n,,aIifv IN accordance with the char
tsr.
That supposed failure consisted in an
omission 10 take the oath Of office
before a justice of the peace and to file
rho oath in the office OF the village
clerk, as required by section : Of the
charter. Mr.. Daleng in fact took the
oath before a notary public and CON-
missioner of deeds. a defect which Jus-
lice Swayze said v7ss fatal unless there
is some statute modifying tho require
ments of the village charter.
In 1850 an act was passed providing
that any official oath authorized to
ne taken before a justice OF the peace
which ma have been taken and sub
seribed before u master in chancery or
notary public, shall be deemed as valid
and etfectual as If taken and subscribed
3efore a justice of the peace. The Court
or Errors acid that this statute is not
applicable to official oaths taken after
liz passage, but applies only to those
rghicll may have been taken prior to its
passage.
Objection to the claim OF Mr.. Dalenz
vVas also made upon the ground that
he oath was not filed in the Office of
the village clerk. This contention JUS
tice Swayze said is untenable. 1t was
based upon The theory that the re-
spoadent Fitzsimrnons vas the village
clerk, for if Dalenz himself was clerk,
The court said, it could hardly be con
tended that. he had not filed the oath
with himself, when in fact he had taken
il and presented it to one Of he village
trustees. On the other hand If neither
was village clerk there was no one with
whom 10 file it.
AFTER discussing other technical diff
culties in framing the judgment the
court holds that Dalenz had failed TO
show a title to the office, and that a
Judgment OF custer should be entered
against F-itzsimmons. Since Dalenz
prevailed in securing the judgment Of
oueter the Court of Errors held that he
is entitled to costs in the court below.
AS q result of the decision. It is likely
that Mr.. Fitzsimmons will be reap
pointed village clerk at q meeting OF
the Village Board of Trustees Monday
night. It is said thu Trustee John r.
McDonough, o member Of the Peoples
party Il the board. who voted in June
to Dust bitzsirmons, had decided to
to retain Fitzsimmons.
With Mr.. McDonough's vote the
citizens party men in the board will
be able to do 50. 1t is said that MFR.
McDonough, Trustee Charles IT. Burke
and Frank j.. Hill viii vote for
the appointment OF FitzsiInmons. while
Trustees John r. Weeks. Louis v.
Blanchet and William II. Tweddell will
favor Dalenz, making it a tie vote.
and giving the power to President Ira
j. Kip, jr.. who will vote for Fitzsim-
mons.
When asked what action he would
take today Mr.. Fitzsi1nmons, who has
been acting as clerk, said, 1T is wholly
in the hands OF the trustees. I ex-
pect to be reappointed Monday night
STAR WANT ADS BRING RESULTS.