| N.J. | Sep 30, 1907
The opinion of the court was delivered by
This case was argued before me by consent,pursuant to section 251 of the Practice act.
It is conceded, and is apparent on the face of the certificate, that the defendants failed to make up and sign such a statement of the result of the primary election as is required by section 15 of the act. Pamph. L. 1903, p. 617. This of itself requires that a mandamus should go to compel the performance of the plain statutory duty.. It is said that such a mandamus was not within the terms of the rule to show cause, but this involves a misconstruction of the rule which follows-accurately the language of the act. The addition of the-clause which specifies particularly a statement of the entire number of Democratic ballots cast for Freeman was quite-unnecessary, but was wise in view of the particular controversy which had arisen. Its only effect was to apprise the-defendants of the special complaint they would be called on to meet, but it does not in any way qualify or limit the previous language.
In defence of the board it is said that it is now impossible-for them to make such a statement as the law requires. If so, the impossibility has been created by the defendants, and they could not be allowed to escape the performance of their duty in that way. They might as well burn the ballots before-counting them and then seek to exculpate themselves by-pleading that they had nothing to count. I am by no means-sure that they cannot prepare a proper statement without opening the ballot-boxes, but if that course is necessary, it may be taken. Such a proceeding is not a recount. It is a. mere ascertainment of the result of the original count.
While a mandamus must issue, I think the controversy-which has arisen makes it proper for the writ to contain a. specific direction as to the Democratic ballots cast for Free
■ The stress of the defence was in the contention that Freeman was a Eepublican, and that no Democrat could vote for him as the Democratic nominee. The evidence leaves it in doubt whether Freeman was a.Bepublican or a Democrat. He seems to have considered himself as a Eepublican. One, at least, of the election board seems to have regarded him ás a Democrat, and a majority of those who elected to vote at the Democratic primary evidently thought he was worthy of a place on the Democratic ticket. I am unable to determine the fact. For aught that the evidence shows, he was improperly put on the official ballot for the Eepublican primary, and was himself in error in voting as a Eepublican.
Assuming, however, as counsel seemed to concede, that Freeman was a Eepublican, I find nothing in the act to prevent Democrats from voting for him at .their own primary. There are provisions, of course, which prevent the name of a Eepublican from being placed on an official Democratic ballot
Nor is there anything in the general object of the act of 1903 which sustains the defendants’ view. That object is accomplished when it is made sure that each voter shall vote onty once at a primary election in whichever box he may choose. That act was never meant to entrust to an election board the power to determine, without a hearing, to what party a man belongs, and as a result of that determination to reject ballots honestly cast for him.
The facts in the ease are not in disjoute. The matter is one of public importance in which delay would deprive the remedy of all efficacy. A peremptory writ of mandamus should issue.