In Re Smock
Defendants (incumbents) move to dismiss the complaint on the grounds, as orally supplemented, that:
(1) the complaint was not filed within time;
(2) summons was not issued or served; and
(3) the complaint fails to set forth a basis for relief.
These issues will be considered in the order stated.
I.
On May 16, 1949, an unsuccessful candidate petitioned the Monmouth County Court for a recount under
On June 11, 1949, notice was given of an application to the Monmouth County Court for an order dismissing the recount proceedings. An order to that effect was signed on June 13, 1949. The present complaint was filed on June 21, 1949.
It is contended that the mentioned action of the Board on June 10, 1949, constituted a determination and announcement of the result of the recount and hence the present complaint was not filed within the statutory 10 day period of limitation.
The words “determined or announced” in
Undoubtedly, in such situations a Board of Elections may properly suspend its activity to permit an appropriate application to the court for an order relieving the Board of the prior directive. However, until the court does terminate the proceedings, it cannot be said in that situation there has been any “result” of the recount. Hence, in the present situation, the earliest event which can be said to constitute a determination of the result of the recount was the order of June 13, 1949. Measured by that event, the present complaint was filed within time.
As a subsidiary point, it is argued that the complaint was out of time as to four of the councilmen declared elected, becаuse, it is claimed, the recount proceedings were directed only against the candidate who finished fifth in the election. The petition for the recount prayed for a recount of the entire election and the order for recount is of that breadth. Indеed, it is doubtful that, where five candidates for the same office are to be elected in a single election, a recount could properly be limited to the result as to less than all of the candidates.
II.
It is contended that the action should be dismissed because a summons was not issued within five days after the complaint was filed, in accordance with Rule 3:41-2.
Rule 3:41-2 does not apply to the present proceedings.
“The court shall appoint a suitable time for hearing such complaint, not more than thirty nor less than fifteen days after the filing of the petition, and the contestant shall cause a notice of such hearing, with a copy of the contestant‘s petition, to be served on the incumbent at least ten days before the day set for trial.”
The process is thus specified. It is not disputed that the statutory provision was fully met. If Rule 3:79 is deemed to aрply, it is clear that the notice of hearing served with the complaint pursuant to the order of this court was the substantial equivalent of the order to show cause contemplated by Rule 3:79-2. The defendants were fully informed of the relief sought and of the time and place for hearing. There is no conceivable element of prejudice to the defendants.
III.
The remaining ground of the motion is that the complaint fails to set forth facts entitling the plaintiffs to relief.
The grounds of contest of an election are set forth in
At the pretrial conference, it developed that the plaintiffs’ challenge relates only to “improper registration” and those improprieties orally specified were (1) that voters were registered at places other than the official places for registration described in
Pursuant to the direction of this court, briefs were filed to the end that a determination might be made of the issues considered in this memorandum in advance of the trial date.
Elections are public еvents of ultimate importance. The expression of popular will thus evidenced should be sustained unless compelling circumstances impugn the correctness of the result.
Obviously not every infraction of the election laws will invalidate the contest. There is a settled distinction between violations of directory, as distinguished from mandatory, provisions of the law. As here used the characterization of a provision as “directory” is not intended to suggest that compliance therewith is discretionary with the officer conсerned, but rather to indicate that the Legislature did not intend that a violation thereof shall invalidate the election. Officials charged with enforcing election laws are bound to comply with the provisions, whether directory or mandatory in nature, and for their infraction are amenable in accordance with law. And their timely compliance with directory provisions may be judicially compelled. But the election will not be upset where the provision violated is directory in quality. In re Clee, 119 N.J.L. 310, 196 A. 476 (Sup. Ct. 1938); 29 C.J.S., “Elections,” § 214, p. 307.
The basic qualifications for voting are prescribed by our Constitution.
It is unnecessary to consider whether a total failure to comply with the laws respecting registration constitutes a
We think it is clear that the alleged irregularities are insufficient, as a matter of law, to sustain thе judgment sought. The qualifications of the voters thus registered are not challenged, nor is it claimed that the voters were in fact registered after the expiration of the time limitation for registration. The claim made in plaintiff‘s brief that the registration outside of the places officially designated for registration was designed for the registration of voters sympathetic to the incumbents does not change the stature of the basic charge in the absence of a claim that the voters so registered were not qualified to vote. As already stated we need not here consider whether the specific irregularities charged would have been sufficient to deprive the voter of his ballot if a challenge had been seasonably made. It is clear that such irregularities will not infect а concluded election. 29 C.J.S., “Elections,” § 51, p. 68. Cf. In re Clee, 119 N.J.L. 310, 196 A. 476 (Sup. Ct. 1938).
The provisions of
“The nomination or election of any person to any public office or party position, or the approval of any public proposition, may be contested by the voters of this state or of any of its politicаl sub-divisions affected thereby upon one or more of the following grounds:
“(a) Malconduct, fraud or corruption on the part of the members of any district board, or of any members of the board of county canvassers, sufficient to challenge the result;
* * * * * * * *
“(e) When illegal votes have been received, or legal votes rejected at the polls sufficient to change the result.”
Assuming that the conduct charged constitutes “malconduct” within subsection “a.” nevertheless, for the reasons given
With respect to subsection “e” of the statute, the issue is whether the alleged infractions of the law constitute the votes cast “illegal votes.” It has been said that an unregistered voter is not a “legal voter” within the meaning of
To expedite the preparation of counsel аnd to avoid the production of witnesses whose testimony will be rejected, counsel are hereby advised that at the trial evidence in support of alleged improprieties considered above will be excluded for the reasons stated. For the purрose of the record a proffer of that proof may be made without the production of witnesses.
At the pretrial conference the issue triable was described as “improper registration.” The issue might, and perhaps should have been, further limited by a sрecification of all irregularities which are claimed to constitute improper registration. The evident latitude was permitted because counsel for plaintiffs felt unduly curbed in his preparation by the shortness of time. At the trial, however, plaintiffs will be required tо make an opening statement as to all other acts or omissions, if any, which are claimed to constitute irregularities
By letter dated July 13, 1949, counsel for plaintiffs requested a further adjournment which application was denied by telegram. More than two months have elapsed since the election. Public interest manifestly requires that election contests be promptly tried.