5 N.J. Misc. 303 | N.J. | 1927
The above are two appeals in contested election cases. At the general election in November, 1926, there were two vacancies in the office of township committeemen in the township of Ewing, in the county of Mercer, to be filled by the voters. One vacancy was for a three-year term. The other vacancy was for a two-year term. The Democratic party nominated no candidates for these offices. The Republican party nominated at the primary election one George Kuestner for the two-year term, and one William C. Cook for the three-year term. Subsequent to the primary election, bnt prior to the general election, two men announced their intention of becoming candidates for these offices. William C. Hendrick
The election was held on November 2d, 1926. The usual confusion incident to a campaign of this character occurred in the election. A dual paster had been prepared containing the names of Messrs. Hendrickson and Boscarell, which had been perforated so as to be readily separable. It was the intention that it should be so separated before using. In many instances it was pasted on the ballot without separation so as to cover up the designation of the office for which Boscarell was a candidate. In other ballots the pasters were not placed in the personal choice column but placed over the names of the Begular Bepubliean candidates. In some ballots the pasters were placed i-n the personal choice column beneath the designation of offices other than township committeemen which were to be filled. In some ballots the Democratic column was used to place the pasters of the independent candidates. There were other ballots in which the voter, after having used the paster in the proper column and proper manner, had crossed out the names of the Begular Bepubliean candidates in order to emphasize as it were his or
There are four election districts in Ewing township. The district election boards rejected many of the ballots cast. The announced result was that George Kuestner (Eegular Republican candidate) was declared elected for the two-year term, and William C. Cook (Eegular Republican candidate) was declared elected for the three-year term. The independent candidates, Hendrickson and Boscarell, then presented a petition to Mr. Justice Trenchard, of the Supreme Court, for a recount of the ballots. A recount was ordered and conducted upon November 23d and 24th, 1926, by the county board of elections. The result of this recount was that the county board of elections declared that William C. Hendrickson had been elected for the three-year term over William C. Cook, and that John J. Boscarell had been elected for the two-year term over George Kuestner. No ballots were referred to Mr. Justice Trenchard to be passed upon by Mm for the reason that the county board of elections had no divergence of view regarding any disputed ballot. As a result of the recount Hendrickson and Boscarell became the incumbents.
Messrs. Kuestner and Cook, under article 27 of the Election law, then filed petitions addressed to the Circuit Court of Mercer county for the purpose of contesting the election of Messrs. Boscarell and Hendrickson. Each contestant filed a separate petition. Each petition embodied the same subject-matter. In the record only one of the petitions is printed. This was done by consent. The hearing was had before Judge Jess of the Circuit Court on the 17th, 20th and 23d days of December, 1926. It became necessary during the hearing to recount the ballots. The disputed ballots were passed upon by the court. The result of the contest was the entry of a judgment that George Kuestner was elected over John J. Boscarell for the two-year term, and WLUiam C. Cook over William O. Hendrickson for the three-year term. Within the time prescribed by the statute Borneare]! and Hendrickson, the incumbents, appeal to this court.
“Said petition shall be accompanied with a bond to the incumbent with two or more sureties to be approved by the justice holding such circuit, in the penal sum of $500, conditioned to pay,” &c.
The bonds given by each of the contestants were approved, not by the “justice holding such circuit,” but by Judge Jess, who is a judge of the Circuit Court. The bond given by William C. Cook to Hendrickson is printed on pages 16, 17 and 18 of the record. It shows that it was approved by “Frank B. Jess, Judge Circuit Court.”
This question has been passed upon in the case of Wadsworth et al. v. Harrison, 46 N. J. L. J. 329. Judge Dungan (Circuit Court judge) rendered the opinion. As stated in the opinion the first ground urged for the dismissal of the petition was:
“That the Circuit Court was without jurisdiction to make an order fixing the time of this hearing, and is now without jurisdiction to hear and determine the questions involved in the- petition, for the reason that no bond was presented with the petition, as required by section 3 of article 27 of the Election act, found on page 782.”
When this point was considered by Judge Dungan he said:
“Under the first point, as to whether or not all the steps taken were sufficient to give the court jurisdiction, I would say that in these arguments there has been no suggestion that this court has any power under the common law to hear and determine such a proceeding as this. As was said in the ease of Darling v. Murphy, to which reference has been made many time during the argument, found in 70 N. J. L. 435, Mr. Justice Swayze, speaking for the court, says: ‘The proceeding is purely statutory, and in order that the. court may have jurisdiction the statute must be complied with.’ And I
“That view alone necessarily results in the dismissal of these petitions, * *
We consider the reasoning of Judge Dungan as above expressed unanswerable. The _ legislature has prescribed a method of procedure to be followed by one who desires to contest the result of the election. To give the court jurisdiction the method prescribed by the legislature must be followed. Courts have no power to change or ignore the procedure fixed by the legislature.
The contestants seek to avoid the effect of this statute by claiming that the provision relating to the approval of the bond was waived by the incumbents. This was the view taken by Judge Jess. In the record (on p. 92) Judge Jess said:
“* * * I am inclined to agree with the opinion of Judge Dungan, that the act requires that the bond to be filed by the
“But I am further inclined to feel that this objection, while it might have been valid and controlling at the outset of this case, now comes too late. It think that this is a jurisdictional fact which the parties may waive. I can see no reason why not, if they come into court knowing, as, of course, they are presumed to know, that the bond is defective in the matter of its approval, and remain silent as to that objection and permit the proceedings to go on to the extent that several hundred ballots are counted, that is too late, practically at the close of the case, to raise that objection.”
It is true that the objection was not made at the commencement of the hearing upon the appeals. It was made, however, before the hearing had been concluded and a decision rendered by the court. The position taken by the Circuit judge is that if counsel fail at the very threshold of the hearing to call the court’s attention to a defect in the procedure which affects the jurisdiction of the court, such failure precludes the consideration of the question if raised during the hearing, and the parties are deemed to have waived the question of jurisdiction. Such a position makes it necessary for counsel to know on the occasion of their first appearance every fact affecting the jurisdiction of the tribunal and the law applicable to it. It may well be that at his first appearance on this appeal counsel for the incumbents may not have liad an opportunity to inspect the bond which had been tendered to the Circuit judge. Counsel was warranted in assuming that all the acts essential to confer jurisdiction on the judge had been complied with. Whether the bond was approved by a justice of the Supreme Court was a question of fact, and, so far as it appears, when counsel was apprised that the bond was not approved by a justice of the Supreme Court the question of jurisdiction was raised. Assuming that the jurisdictional fact lacking, namely, the approval of the bond “by the justice holding such circuit” could be waived, we do not think it was waived in the present case.
The judgments entered in the Circuit Court are reversed with the direction to enter judgments dismissing the appeals.