82 N.J.L. 330 | N.J. | 1911
The opinion of the court was delivered by
The writ allowed in this proceeding brings into this court, from the Court of Oyer and Terminer of the county of Atlantic, an indictment against the defendant, and a motion is now made to quash it. The indictment, among other things, sets out that at a general election held in Atlantic county in November, 1910, the clerk of the resjieetive board of régistry and elections, as required by law, kept a. register of the voters, and checked the names written therein as the voters deposited their ballots, and after the canvass of the votes, the registers so checked were filed with the clerk of the county of Atlantic to be there preserved by him for a period of five years. The
Seelion 67 of the act concerning elections (Pamph. L. 1898, p. 272) requires the registry list to be deposited with the county clerk after each election, and section 1 oí a supplement to said act (Pamph. L. 1908, p. 30) requires the county clerk to preserve such lists for five years. It seems to us that the duty imposed upon the clerk under the above legislation, to preserve such registers in his office for the term of five years, is a part of the Election law intended to aid in insuring the purity of elections, and io assist in the discovery and prosecution of frauds, and that if the clerk should allow such registry lists to go out of his possession, during the forbidden period, in such manner as to afford the opportunity to alter or mutilate them, it would be a violation of the act relating to elections, because, in our opinion, such register's are a part of the election proceedings. If the county clerk can allow the registers to be removed and carried away by anyone who may apply for them, alterations and mutilations would be comparatively easy, and the registers become of small value as records of the manner in which the election had been conducted. We think it is clear that this legislation requires the county clerk to preserve these registers in the form he received them from the clerks of the board of registry and elections, and that he js not preserving such lists within the meaning of the act when he allows them to be withdrawn from his possession. He is to preserve them, and this is not done when he allows a person, without statutory authority, to withdraw them from Iris custody and control, and thus subject them to unlawful changes and alterations, and if he does so, it is not so clear that he would not be guilty of a violation of the act concerning elections as to warrant the quashing of an indictment if one were
The motion to quash will be denied, and the indictment retained in this court for trial.
When this motion was argued an application was also made, for a special writ of certiortwi to bring up some of the proceedings relating to the finding of the indictment, if the motion to quash was refused, in order that the defendant might have so much of the proceedings as related to the finding of
We think that the defendant is entitled to a writ sufficiently broad to accomplish this purpose, the scope of which will be fixed when the writ is submitted for allowance.