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Ferguson v. Brogan

Decided: March 28, 1934.

JOHN FERGUSON, SUPERINTENDENT OF ELECTIONS OF HUDSON COUNTY, NEW JERSEY, PROSECUTOR,
v.
THOMAS J. BROGAN, STATUTORY OFFICER, AND GUSTAV BACH, CLERK OF HUDSON COUNTY, RESPONDENTS



On certiorari.

For the prosecutor, William E. Sewell.

For the respondent, Frank J. Reardon.

Before Justices Case, Bodine and Donges.

Case

The opinion of the court was delivered by

CASE, J. Prosecutor is the superintendent of elections of Hudson county, appointed and functioning under paragraphs 407 to 420, inclusive, of an act to regulate elections (Revision of 1930), Pamph. L. 1930, ch. 187, the legislation having been originally passed as Pamph. L. 1923, ch. 9. Prosecutor made application to the Chief Justice, sitting as a statutory officer, for an order to permit prosecutor to remove the seals from, and to examine the contents of, the ballot boxes of certain districts in Jersey City. The Chief Justice determined that he had no power to grant the application, predicating this conclusion upon the further finding that the superintendent of elections had no power to examine the contents of a ballot box. Those findings were incorporated within an order that is now before us for review under a writ of certiorari.

The power of the prosecutor, if it exists, to make such an examination is not to be found outside of paragraph 410 of the Election law. That provision is as follows:

"It shall be the duty of said superintendents and their assistants in order to enforce the laws of this state, regarding the conduct of elections to investigate all complaints relating to the registration of voters, and for that purpose the said superintendents and their assistants, shall have full power and authority to visit and inspect any house, dwelling, building, inn, lodging house or hotel and interrogate any inmate, housedweller, keeper, caretaker, owner, proprietor or

landlord thereof or therein as to any person or persons residing or claiming to reside therein or thereat; to inspect and copy any books, records, papers or documents relating to or affecting the elections, either general, special, primary or municipal, or the registration of voters in the custody and control of district boards, county boards, or the clerks or other officers of municipalities; to require every lodging housekeeper, landlord or proprietor to exhibit his register of lodgers therein at any time to such superintendent, his subordinates or any other person so designated by the said superintendent. Any person who neglects or refuses to furnish any information required or authorized by this act, or to exhibit the records, papers, or documents herein authorized to be inspected, or which are required to be exhibited, shall be guilty of a misdemeanor."

Prosecutor, insisting that appropriate authority is contained therein, relies upon a grammatical construction that we think is untenable. He reads the statutory authority thus:

"It shall be the duty of the said superintendents and their assistants, in order to enforce the laws of this state regarding the conduct of elections * * * to inspect and copy any books, records, papers or documents relating to or affecting the elections, either general, special, primary or municipal, or the registration of voters in the custody and control of the district boards, county boards or clerks or other officers of the municipality."

If this arrangement were correct, it would be the duty of the superintendent to inspect and copy any books, records, papers or documents affecting the elections, general, special, primary or municipal. Duty is not duty if the person burdened may use his discretion as to whether or not he will accept the obligation as a duty; consequently the word "any," as here used, must be given the comprehensive sense of "all." Otherwise, "any books" means what? As a duty the expression means nothing because there is no method ...


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