For the application, James F. Murray, pro se.
Contra, J. Emil Walscheid, county counsel of Hudson county.
BROGAN, CHIEF JUSTICE. The applicant presents a petition under paragraph 121, section 12, article XI, of the Election act (Revision of 1930, with its amendments and supplements) for summary review.
The petition asserts that the applicant, on September 16th, 1937, filed his petition of nomination with the secretary of state, as a candidate for the office of governor, to be voted for at the general election on November 2d, 1937, and that the name of the applicant, with others, was certified by the secretary of state to the county clerk of Hudson county for the purpose of making up the sample and official ballot. The county clerk drew lots under paragraph 144, section 11, article XII of the statute, supra, to determine the positions on the ballot of candidates nominated by the several political parties, on October 5th, 1937 (the date fixed by the statute),
which is twenty-eight days prior to the day of the general election, and of this there is no complaint. On October 8th, 1937, the county clerk drew lots for positions on the ballot for the several independent candidates for governor. A certificate was presented to me indicating that the county clerk did not receive from the secretary of state a certified list of the names of those nominated by direct petition until October 7th, 1937. The county clerk proceeded to draw lots for position on the ballot of these independent candidates on the following day.
The applicant contends that under the provisions of paragraph 144, section 11, article XII of the statute, supra, in which, among other provisions, is the following: "The drawing of names shall take place at three o'clock in the afternoon on the day following the last day for filing petitions for the General Election, at the office of the County Clerk;" the drawing for such position should not, as a matter of statutory regulation, be held until October 13th, 1937. This argument is advanced on the strength of the provisions of paragraph 343, section 10, article XXIV of the statute, which provides as follows:
"In the event of any vacancy occasioned by death, removal, resignation or otherwise in the representation of any county in the Senate or General Assembly or in any county or municipal office, which vacancy shall occur after the last day for filing petitions for nominations for the primary election and prior to twenty-five days preceding the general election, the members of the county committee of each political party representing the territory affected by such vacancy are hereby authorized to select a candidate for the office in question and within twenty-two days prior to the general election file a statement of such selection, duly certified to, with the county clerk, and the person so selected shall be the candidate of the party at the ensuing general election. Besides the selection of candidates by the respective committees of each political party as aforesaid, candidates may also be nominated by petition in a similar manner as herein provided for direct nomination by petition for the general election; provided, however,
that such petition shall be filed with the county clerk, at least twenty-two days prior to such general election. When any such vacancy occurs in the representation of any county in the Senate, or General Assembly or in a county office, the county clerk shall forthwith notify the chairman of the county committee of each political party and in counties of the first class the county board of such vacancy, and in case any such vacancy occurs in a municipal office, the municipal clerk shall forthwith give notice to the county clerk, the chairman of the county committee of each political party and in counties of the first class the county board, of such vacancy. The county clerk shall print, on the ballots for the territory affected, in the personal choice column, the title of office and leave a proper space under said title of office; and print the title of office and the names of such persons as have been duly nominated, in their proper columns; provided, the provisions herein shall not apply to the selection of a candidate in the representation of any county in the Senate or General Assembly unless a writ of election for supplying such vacancy shall have issued as otherwise provided for by this act, prior to twenty-five days preceding the general election; and provided, further, that said writ designates the next general election day for the election."
The point of the argument is that a petition nominating a candidate might, under this section, be filed with the county clerk up to twenty-two days prior to the general election which, as a matter of fact this year, would mean October 11th, 1937, and that by virtue of the provision above quoted from paragraph 144, supra, the drawing would, of necessity, take place the following day, October 12th, and this being a legal holiday in the State of New Jersey, the drawing would carry over until October 13th, 1937. I do not agree with this contention. In the first place, article XXIV, of which paragraph 343, section 10, is part, is headed in the statute itself "special elections and filling vacancies." The particular paragraph (343, section 10) carries the heading, "filling vacancies in the representations of any county in the Senate or General Assembly, and in County or Municipal
office." A reading of the paragraph in question indicates that the scope of its provisions is limited and relates to filing petitions for nominations either by political parties through a county committee or by signers placing an independent candidate in nomination when a vacancy arises in office after the date of the primary and before the date of the general election, which vacancy was occasioned by death, removal, resignation or ...