On motion for order permitting examination of records, &c., in advance of trial.
For the motion, Robert H. McCarter.
Contra, Edward J. O'Mara.
[119 NJL Page 215] BROGAN, CHIEF JUSTICE. A petition has been filed by Lester H. Clee, the contestant, who was a candidate for governor
at the last general election, contesting the election of A. Harry Moore, the incumbent, who, on the face of the returns, was declared by the board of canvassers to have been elected governor of the State of New Jersey.
Among the prayers at the end of the petition and forming part thereof is one which reads as follows:
"No. 4. That this court issue an order permitting your petitioner and his duly authorized representatives, under the supervision of this court, to examine and compare the signatures contained in said poll books with the signatures of the alleged registered voters contained in the signature copy registers for each of the said respective election districts, or any other records showing the permanent registration signatures of said illegal voters at the said general election held on November 2d, 1937."
Motion was made that the court issue an order for such examination in advance of the time fixed for the trial of this contest. The petition of the contestant is filed under paragraph 356, section 2, article XXVI of "An act to regulate elections" (Rev. 1930). Article XXVI (paragraph 355, section 1 -- paragraph 368, section 14) contains the complete, comprehensive, statutory plan, designed by the legislature for the initiation, trial proceedings and determination of this extraordinary type of litigation. The statute, however, is not an enactment of recent origin since it has been (and, substantially, in its present form) a part of our legislation to regulate elections since 1876 (Cf. chapter 124, Pamph. L. 1876, p. 163). It has, however, been considered by the Supreme Court in a great many cases and in all of them where the occasion arose may be found unanimity of judgment that proceedings taken thereunder are purely statutory and that the jurisdiction of the court is derived from the statute itself. In the case of Darling v. Murphy, 70 N.J.L. 435 (at p. 436), Mr. Justice Swayze said, "the proceeding is purely statutory and, in order that the court may have jurisdiction, the statute must be complied with." In the case of Kuestner v. Boscarell, 5 N.J. Mis. R. 303; 136 A. 506, our Supreme Court said, "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." See, also, Cleary v. Kendall, 13 N.J.L.J. 134; Johnson v. Allen, 55 N.J.L. 401; Ferguson v. Brogan, 112 Id. 472.
It will serve no purpose to multiply citations of authority except to say that in none of the cases examined can I find any view expressed by our Supreme Court which is at all in conflict with the thought expressed above. Singularly enough, I do not find any case in which an application of this particular character now before me has been made.
Counsel for the applicant, in his brief, says that the "presentation of his case requires a comparison of signatures on the permanent registration forms with signatures from the poll books," and that an order should be made permitting such inspection in advance of trial; and, as a practical reason in support of the proposition, that this procedure will save time. In the argument as to the law, reliance is placed on section 224 of the Election act. This section is part of article 17, which has to do with "disposition of ballot boxes, election records and election equipment." In general, the article provides for the placing of the election records in the ballot boxes, the delivery thereof to the municipal clerks, the preservation of the boxes with their contents, disposition of the register of voters, as well as the keys of the ballot boxes, and the like. The last paragraph of this article, upon which counsel relies, provides that "the court may at any time for satisfactory reason shown, and when the court may deem it necessary, issue an order for the opening of any ballot box or boxes and the removal of the contents thereof and for the removal from the file of any municipal or county office any ...