My rote to reverse the judgment of the Supreme Court in this ease is based solely upon the view that the legislature has not provided any machinery for carrying on a recount of votes east for candidates for congress, although I find in the statute a declaration of intention that recounts shall extend to congressional elections.
The learned justice, who wrote the opinion in the court below, states the case when he says:
“The insistence of counsel for the prosecutor is, that the legislative intent was to confine the provisions of this section (159 of the act concerning elections), to candidates for election, such as state senators, members of assembly, surrogates and other county and municipal officers who, if elected, are, under the statute, entitled to receive their certificates of elec*296 tion from the county board of canvassers. And, in furtherance of this view, it is strenuously argued that the clear legislative design to exclude candidates at an election for governor, United States senator, members of congress and presidential electors, whose election under the statute is to be determined by the state board of canvassers, is made manifest by the provisions of sections 160 and 163 relative to the recount of votes, and section 164 relative to contested elections for county offices,”' &c.
I agree with the view held by the learned justice that the statute (Pamph. L. 1898, p. 237, § 159; Comp. StaL, p. 2073; Pamph. L. 1909,' p. 41) evinces an intent to give to any candidate at any election, who shall have reason to believe that an error has been made in counting or declaring the vote of such election, whereby'- the result has been changed, the right to a recount; and to this extent, disagree with the contention of counsel that the section evinces a legislative intent to confine the provisions to candidates for the offices named; but, as I find in the act no machinery provided for the carrying on, ascertaining or certifying the result of a recount of votes cast in congressional elections, I am constrained to the view that no such recount can be had, not that it was not the intention of .the legislature to give it.
There was a time in the history of our state when no recount of votes cast at any election could be had (except as an incident to proceedings in a contested election before a body-authorized to inquire into and decide such a question, as the house of representatives, which is the sole judge of the election and qualification of its members, and the Supreme Court on quo u'arranto, where the right to office was being inquired into). Ur fact, we had no statute authorizing a recount of votes until as late as 1880. See the supplement to “An act to regulate elections.” Pamph. L. 1880, p. 2,29; Rev. Supp.. p. 277; Gen. Siat., p. 1327, § 195. And this extended only to candidates for member of the state senate or assembly.
By a supplement .to the Elections act (Pamph.. L. 1895, p. 659, § 13; Gen. Stat., p. 1367, § 369) it was provided that if airy candidate for any office shall pray a recount of the whole
It will be observed that section 13 of the act of 1895, and section 159 of the act of 1898, as amended by Pa/nvph. L. 1909, p. 41, omit mention of the offices, candidates for which may apply for a recount, while the act of 1880 expressly confined recounts to elections for state senators and assemblymen. -Assuming that the recount provisions of the act of 1895 are as broad as those of the acts of 1898 and 1909, it would be quite useless to analyze them, as it is the latest statute with which we have to deal in the case at bar.
That statute (Pamph. L. 1909, p. 41), which is a supplement to the Election act (Beyision of 1898), purports to amend section 159 of the act of 1898 “to read as follows,” and then goes on to re-enact section 159 verbatim et literatim, and adds another section—section 2—which enacts that the provisions in section 159 relating to recount of votes upon any referendum, or question submitted to the electors shall apply to those submitted at the last general election (1908). if applied for within thirty days after the passage of that act (1909), the time of application for which, under the provision of-section 159, had expired. Therefore, the statute stands just the same, with reference to the recount of votes cast for candidates at elections, as though the amendment of 1909 had not been passed.
The provision in section 159, that “if it shall appear upon such recount that an error has been made sufficient to change the result of such election,” the justice shall revoke the “certificate” of election already issued, &c., does not come in-aid of the-contention of tire appellant to the slightest extent, because the word “certificates” has reference to the word “candidates,” the whole clause reading, “and if it shall appear upon such recount that an error has been made sufficient to change the result of such election, then such justice
The popular and generally accepted meaning of language is to be applied to the construction of a statute in the absence of a legislative intent to the contrary. Conover v. Public Service Railway Co., 80 N. J. L. 681. The word “any” means “one out of many * * * and is given the full force of 'every’ or 'all.’” Bom. L. Diet. (Baade’s rev.) 205.
In Purdy v. The People (New York Court of Errors), 4 Hill 384, Seoit, senator, in his opinion (at p. 413), observes: “Johnson says that the word 'every’ means each one of all, and
Now, it must be perfectly obvious that when the legislature, in section 159 of the present act concerning elections, said that any candidate for any office might have a recount, &c., it meant what it said. The words define themselves and there is no room for construing them contrary to their plain and ordinary meaning. I start, therefore, with, the proposition that the legislature meant to give a recount to a candidate in a congressional election. But, it must be equally obvious that a recount cannot be carried on without machinery provided for that purpose. And the act of 1898, as we have seen, provides that machinery, but restricts its operation to a recount for county or municipal offices, for the recount is to be had by the county board of canvassers and the certificate of the result is to be filed with the clerh of the county or mnw nicipaliiy in and for which the election was held; and the expenses, if an. error be made sufficient to change the result, are to be paid by the county or municipality in an id for which the election was held.
Now, an election for congressman is not held in and for a county or municipalitiq but in and for a “district” created by the legislature, and these districts have no clerks, and no certificates of election are given eongressmen-elect by any officers of their- respective congressional districts; in fact, there are no such district officers.
The-present act (Pamph. L. 1912, p. 912) divides the state into twelve congress districts, the one in question being coin-posed of the counties of Middlesex, Monmouth and Ocean, called in the act the “third district.” Admittedly,' a single county could be constituted a district, but none is in the act mentioned, and, what is more to the purpose, several counties are subdivided in creating districts; notably the sixth, which is composed of the counties of Bergen, Sussex and Warren, and the townships of Pompton and West Milford, in the county of Passaic.
The scheme of a congress district recount is not workable under the provisions of the act. I do not say that such a scheme could not be made workable by legislation. On the contrary, it is plain that it could.
Ample provisions are made in.the act concerning elections for contests for governor and for members of the legislature and. congress. The ninth congress district is composed of the cities of East Orange and Orange, and certain wards of the city of Newark, all in the county of Essex. If an election recount were held in this district, the certifícate of the justice of the Supreme Court might physically be filed with the city clerks of the Oranges, but could not be filed with the clerks of the several wards of Newark, as there are no ward clerks.
The modus operandi of canvassing the votes cast at elections is, shortly, as follows: The county board of elections in each county is constituted the board of county canvassers. Section 102. The members of the county board proceed to examine the statements and copies of statements of elections which shall be produced before them, and canvass and determine the votes cast at the election and make two statements. of the result containing the number of votes given in each election district for any office to be filled. Section 108. Such boards deliver one of the statements, in case of an election held for members of the house of representatives or for electors of president and vice president or for governor or senator, members of assembly or any county officers, to the secretary of state. Section 110. In case of an election for one or more members of the house of representatives or electors of president or vice president or for governor, the secretary of state lays before the board of state canvassers two such statements. Section 118. The governor and four or more of the members of the senate attend at Trenton, on a certain date, for the purpose of canvassing and estimating the votes cast for each person for whom-votes have been given for mem
By this summary of the election machinery, it will be seen that no certificates of election issue to congressmen-elecl by county boards of canvassers, who merely make a certificate of the result of election for congressmen as it appears returned in the several election districts, and send that certi ficate to the secretary of state, who lays it before the state board of canvassers, who make a determination as to who is elected to congress in any given district. There is no provision in the statute for any revocation by a justice of the Supreme Court of any certificate made by the state board of canvassers. As the certificates of election of congressmen emanate, not from county boards of canvassers, but from the state board, how can interference with the work of a county board affect the holder of a certificate from the state board F
Because there is no practical method of recounting the vote in a congress district, an apparently unsuccessful candidate is not thereby deprived of the right to show that he, and not his rival, as certified, was elected; for, as already remarked, the house of representatives is the judge of the election of its members, and our statute provides an ample method of contesting the election of members of congress. Section 153 et seq.
My view is, that while the legislature in the revision of the Election law of 1898 intended to provide for a recount to any unsuccessful candidate for any office at any election, upon proper showing made, which would include congress districts, it failed to provide the method whereby lawfully, step by step,
Sir ■ William Blaekstone,. treating of the constructions of statutes, says: “Acts of parliament that are impossible to be performed are of no validity.” 1 Bl. Com. 91. The doctrine thus expounded by the learned commentator is, by parity of reasoning, equally applicable to a part of an act which is impossible of performance, as well as to an entire act that cannot be put into operation. It has been held, in this state, that parts of acts which are unconstitutional are to be excised to the extent to which they are invalid and the rest of the act upheld, if the parts are wholly independent of each other. State v. Davis, 72 N. J. L. 345, and cases cited; affirmed, 73 Id. 680. . See, also, Meehan v. Excise Commissioners, Id. 382, 388. It must be perfectly obvious that a provision in a statute for a recount of votes cast for a state senator is entirely independent of one for a recount in a congressional election, and that, if the latter be invalid or unenforceable, the former shall, nevertheless, stand'.
In Commonwealth v. Gouger, 21 Pa. Super. Ct. 217, it was held (at p. 229) :
“In the construction of statutes it may sometimes become necessary to transpose words or even to supply or strike out a wore] which the context shows was omitted or inserted by mistake. Instances are not lacking in the reports where this has been done in order to effectuate the intention of the legislature. But where an enactment is plain and sensible, and, according to any meaning, broad or narrow, popular or technical; which may be ascribed to the words, does not apply to tlie case in .hand, it is not permissible for the courts to add or omit words, in order to make it so apply, even though it may be clear to them that the case is as fully within the mischief to be remedied as the cases provided for. This would be, not to construe, but to amend the law, which is within the exclusive province of the legislature. * * * When a court has gone to the verge of its power of construction, there will sometimes remain what is termed a casus omissus—a case within the mischief to be remedied and possibly within the general*305 intent oí the legislature as disclosed by the act—and yet not provided for therein. In such case the legislature alone can cure the defect.”
The doctrine laid down in Commonwealth v. (longer is entirely apposite. I think it clear, as 1 have said, that the recount provision of the Election law is intended to apply to the case of a congressional election. A miscount in an election for congressmen is fully as mischievous and equally entitled to lie remedied as a miscount in the case of county or municipal officers; but the enactment is so plain in providing the method for recounting votes cast for county and municipal candidates, and ascertaining and certifying tlie result., and so plainly fails to provide any such machinery in the case of candidates for congress, that it is not permissible for the courts to add or omit words in order to make the act apply to the class of candidates excluded. And, by the way, how do candidates for county and municipal offices derive their right to a recount? It is not because they are named in section 159. Yet, nobody will deny that they have the right. It is derived from the language “any candidate at any ('lection.” If this language applies to the case, of a surrogate of a county and to the mayor of a city, and, certainly, it does, it equally applies to a congressman. Therefore, L repeat again, that the office of congressman is within the purview of section 159. which clearly intends to give a candidate for congress, in given circumstances, a recount; but, the act failing to provide a method for carrying on a recount and certifying to its result in the case of a congressional election, it is, to that extent, impossible of being performed.
The rr/sw omiKsm in the statute under consideration is the lack of provision of machinery for carrying on a recount in the case of a contested election in a congress district, notwithstanding the act evinces a clear intention to give a recount in such case as well as in all others. The omission was doubtless inadvertently made, and probably came about in this way: The act of 1880, which gave a recount only to candidates for the state senate or assembly, provided for the recount being made in the particular county, with the superseding
It is not an answer to say that one of the justices of the Supreme Court, upon petitions preferred for that purpose, made three several orders for a recount of the votes cast at the last general election in the counties of Middlesex, Monmouth and Ocean, respective^, for member of the house of representatives of the United States, under his direction, by the county boards of election in those counties respectively. Those orders were, in my judgment, unauthorized by the statute and should be held to be mill and void.
The Chief Justice and Justices Swayze, Trenchard and Minturn and Judge Williams have authorized me to say that they concur in the views expressed in this opinion.
The question is, Do the recount provisions of the act concerning elections (2 Comp. Stat., p. 2125) apply to_an election of a congressman for the third congressional district, comprising the three counties of Middlesex, Monmouth and Ocean?
The language of the act provides for a recount. "Whenever any candidate at any election shall have reason to believe that an error has been made by any board of election or of canvassers in counting the vote or declaring the vote of such "k'ction,” &e.
Those reasons, it may be remarked incidentally, apply with equal force to the election, say, of an alderman from a single ward of the city of Newark, or of a ward councilman of any other municipality having ward representation in its governmental body. No certificate is issued to such alderman or councilman by any hoard of canvassers and the election is not municipality-wide, nor is the expense, in case of a successful recount, confined to the ward where the election and recount took place, but must be borne by the municipality-at-large. No one, however, suggests that the recount provisions arc not applicable to an (‘lection of such an alderman or councilman. On the contrary, it is here conceded and urged •that they are so applicable.
1 take it that those certificate and expense provisions are not inconsistent wiih the wide scope given the act by its express language, “any candidate at any election,” but that, on flie contrary, they simply provide the machinery to carry out
This view (which, like all others herein expressed, is only advanced as that of an individual member of the court and not as that of the court itself, which court, of course, in a case, as here, of a tie vote, does not dc-cide or express any view) supplies, in my judgment, a consistent working basis for all of the provisions of the Recoimt Election law. It removes the alleged inconsistency of each county hearing its own successful recount expense, although more than one county is involved, and a liberal construction, of the certificate
I think, therefore, that there is no substantial reason for, in effect, reading into the act the words “first above indicated,” thereby changing the broad language, “any candidate at any election,” into “any candidate for state senator, member of assembly or county or municipal office.” I think such a judicial reading into the statute of these words would be particularly unjustifiable, in view of the fact that the recount provision of our Election law as it was first enacted in 1880 did contain a similar limitation in the words “wherever any candidate at any election in this state for member of the senate or of the assembly,” &c., and that, subsequently, that limitation was omitted in the present act and the language was made to read “whenever any candidate at any election ” &c. Surely, the legislature in changing the law with reference to recounts from one applying only to “a candidate for state senator or member of the assembly” to “any candidate at any election,” did something which has a very significant
Another indication of the wide change contemplated by the act of 1909 'is found in the new provision in that act with reference to a recqunt in referendums, in the following language: “Whenever any citizen shall have reason to believe that an error has been made by any board of canvassers in counting the vote or declaring the result of any election upon any referendum submitted to the electors,” &c.
But even in the absence of such air historical indication of the legislative intent, the language of the present act is, in my judgment, plain and certain, and therefore is not properly subject to judicial construction into anything other than what it says. As above stated, I find no real conflicting provisions in the act, but, if I did, I should still think this language “any candidate at any election” too plain for constructive modification.
“Where the purpose of the lawmakers is expressed in language so plain as to make it unmistakable, it must be interpreted b}" the court, as it is written without regard to its wisdom or its apparently unwise limitations.”
This is the language of this court in Island Heights and Seaside Park Bridge Co. v. Brooks & Brooks, 88 N. J. L. 613, citing Douglass v. Freeholders of Essex, 38 Id. 214.
In the ease of Bullock v. Biggs, 78 N. J. L. 63, this court-notes with approval the. exact words of Chief Justice Beasley in Douglass v. Freeholders of Essex, namely: “Where that, which is directed to be done is within the-.sphere of legislation, and the terms used clearly express the intent, all reasoning derived from the supposed inconvenience, or even absurdity of the result, is out of place/’
It is for the reasons above expressed that I have recorded my vote for affirmance of the decision of the Supreme Court upholding the applicability of the recount provisions of the Election law to the congressional election here involved.
I am .requested by Justices Garrison and Black and Judges Heppenheimer and Gardner to- sa3 that , they unite in the views herein expressed.
The judgment under review .herein is aflljoned by an equally-divided court.
For affirmance—Garrison, Burden, Black, White, Hkpreniielmer, Taylor,'Gardner, JJ. 7.
For reversal—The Chancellor, Chief Justice, Swayke, 'Trenchard, Parker, Mixturn, Williams, JJ. 7.