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In re Petition of Lester H. Clee

Decided: January 11, 1938.


On motion to dismiss petition filed by contestant.

For the motion, Edward J. O'Mara and Charles Hershenstein.

Contra, Robert H. McCarter, Jacob J. Levy and William E. Sewell.


[119 NJL Page 311] BROGAN, CHIEF JUSTICE. On November 30th, 1937, the contestant, Lester H. Clee, filed a petition in the office of

the clerk of the Supreme Court to contest the election of A. Harry Moore as governor of the State of New Jersey. This was done under the statute applicable to a case of this sort ("An act to regulate elections," Revision of 1930, article XXVI). On the application of counsel for contestant, a date was set for hearing said complaint in accordance with said statute (paragraph 358, section 4).

In the meanwhile, counsel for incumbent served his adversary with notice of motion to strike out the petition on several grounds, the most important of which is that the petition does not state a case for contest as required by the statute, supra. It is the legal question thus raised that is now presented for determination.

At the outset, two arguments are made by the contestant in support of the retention of the petition and the hearing of its complaint -- first, that the court has no power to grant the motion, and, second, assuming the power, "no valid reason is presented for its exercise."

First -- In support of the proposition that there is no jurisdiction to entertain such motion and act upon it, no authority is advanced. It is argued that the court sits in cases of this character, not in a judicial but purely in a ministerial capacity, i.e., as an "electoral adjunct," as the contestant's brief has it, and that the court has no power except that expressly bestowed. All this may, for the moment, be conceded and yet as I read the statute (supra, paragraph 356, section 2; paragraph 368, section 14), it contemplates that the petition may be subject to motion to dismiss. The former section of the statute (356, section 2) has to do inter alia, with the requirement that the contestant shall file a bond conditioned to pay costs if the election be confirmed "or the petition be dismissed," &c. The latter section of the statute (paragraph 368, section 14) also fixes liability upon the parties "for costs, made by them, respectively;" it further provides for costs against the contestant if the election be confirmed "or the petition dismissed or the prosecution fail," &c. Again the statute (paragraph 359, section 5) ordains that the proceedings shall be "similar to those in an action

at law so far as practicable," &c., and, this being so, can it be reasonably argued that a party may not address a motion to any pleading in an action at law on the ground that it is legally insufficient? I think not. Thus far the statute.

We turn now to the adjudications construing this statute.

In the case of Cleary v. Kendall, 13 N.J.L.J. 134, Mr. Justice Garrison, sitting in the Camden Circuit, considered the sufficiency of a petition in a contested election case, where the incumbent, in an answer, admitted facts which would deprive him of office in favor of the contestant, and said, "* * * I am without power to proceed. This is a strictly statutory proceeding and unless the requirements of the act are complied with the court has no more right over the parties or the subject-matter than a justice has in a landlord and tenant case where the affidavit fails to disclose facts constituting a tenancy. The petition must be dismissed." In Lehlbach v. Haynes, 54 N.J.L. 77, Mr. Justice Dixon, writing for the Supreme Court (the question having been certified from the Essex Circuit), advised that the petition be dismissed because it did not set forth ground sufficient to initiate a contest under the statute. To the same effect was the ruling of Mr. Justice Depue in the matter of the Election of the Register of Essex County, 12 N.J.L.J. 271. He followed the reasoning of Judge Parker in Burrough v. Branning, 9 Id. 110, to which he refers as a "leading case on this subject." In this latter case, the court struck out part of an answer which set up new matter, to wit, fraud in certain districts by which it was alleged the contestant benefited, the court holding that such part of the answer was in reality a cross-petition and that as such it did not meet the statutory requirements. This practice of considering the sufficiency of a petition in a contested election case was also followed by the late Chief Justice Gummere, when he sat in the Warren County Circuit in the case of Hance v. Spangenberg, 18 Id. 184; see, also, Wadsworth v. Harrison, 46 Id. 329; Johnson v. Allen, 55 N.J.L. 400; Groth v. Schlemm, 65 Id. 431. In the Johnson case, supra, the trial tribunal overruled an objection to the case being heard and, proceeding with the

hearing, found that the election resulted in a tie, and unseated the incumbent. The Supreme Court, on appeal, reversed and held that the objection to the hearing because of the defect complained of was well taken, and ordered the Circuit Court to dismiss the petition. I entertain no doubt as to the power and duty of the court under the statute and the cases to entertain such motion. I have heretofore followed such practice.

For example, in the month of December, 1934, a petition was presented to me, challenging the election of Harold G. Hoffman, who had, in November of that year, been elected governor of the State of New Jersey. The petition, made by John J. Carey, Jr., and others, was signed by thirty legal voters of the state and verified by two of the signers. The petition, accompanied by a bond, was presented to me ex parte, under the statute, and, after an examination of the statute and the cases in our reports, I concluded that the petition was insufficient to bring on a contest, declined to approve the bond, and dismissed the application. Later, and prior to the January term of the Supreme Court (1935), counsel for said petitioners served upon me notice of an application for mandamus to compel me to approve the bond, &c., so that the petition might be filed. The application was heard by Part II of the Supreme Court on January 16th, 1935 (case No. 261 on the calendar), and was denied the same day.

That the court should have jurisdiction to pass upon the sufficiency of the petition seems to be an indispensable necessity. Suppose a petition is filed which, on its face, conceding all its allegations to be true, would neither challenge nor change the result, is the court powerless to do aught but go through a useless and nugatory proceeding? The law does not compel the undertaking of a futile thing.

Counsel for contestant relies upon the case, entitled In re Margarum, 55 N.J.L. 12, in support of the point that the court lacks jurisdiction to consider, on motion, the legal validity of the petition. I do not so read that opinion. It holds that the court, in cases of this kind, acts as a statutory agent, does not sit in curia and may not call upon the Supreme Court for its advisory opinion touching any matter arising

in the course of such proceedings. The other cases cited by contestant do not support his contention in this respect and require no discussion. Singularly enough, there soon was a complete departure from the determination arrived at by Chief Justice Beasley in the Margarum case for, not long after, we find a court made up of Chief Justice Depue and Justices Gummere, Ludlow and Fort accepting a certified case and determining the adequacy of a petition. Groth v. Schlemm, supra; Riesenberger v. Phelan, 65 Id. 437.

On the first point, therefore, my conclusion is that the argument that the court lacks power to pass upon the sufficiency of a petition in a case contesting an election is utterly without substance.

Second -- The merits of the petition and the legal sufficiency of its allegations will now be considered.

The grounds upon which a nomination or election to any office may be contested are stated in article XXVI, paragraph 355, section 1 of the statute, supra. Such contest may be had upon one or more of the following grounds, to wit: (1) misconduct, fraud or corruption on the part of the election officers sufficient to challenge the result; (2) ineligibility of the incumbent; (3) when the incumbent has been disfranchised because of conviction for crime; (4) when the incumbent has been guilty of bribery for the purpose of procuring his election; (5) when illegal votes have been received or legal votes rejected in a number sufficient to change the result; (6) for error made by the board of canvassers, if the error would change the result; (7) for any other cause which shows that another person was legally elected; (8) for unlawful and excess expenditures; (9) when petition for nomination is not filed in good faith or the affidavit thereto is false or defective.

Most of these grounds for contest are inapplicable in the present case, and the petition before me manifestly relies upon three of the stated grounds, namely, the first, the fifth and the seventh, which, in the interest of clarity, will be stated word for word:

"(1) Malconduct, fraud or corruption on the part of the members of any district board or of any members of the board of canvassers, sufficient to challenge the result.

"(V) When illegal votes have been received or legal votes rejected at the polls, sufficient to change the result.

"(VII) For any other cause which shows that another person was legally elected."

It will be noticed that the malconduct, fraud or corruption, stated as a ground for contest under the first heading, must be such as to challenge the result of the election.

"Challenge" means to put into dispute or to put in question. It is defined thus: "To call in question; dispute." (Funk & Wagnalls New Standard Dictionary, 1932.)

The charges set out in the petition are as follows:

"'A.' -- In the election districts in the County of Hudson, more particularly herein set forth in Schedule 'A,' which is annexed hereto and made a part hereof, the members of the district election boards fraudulently violated the provisions contained in paragraph 178, section 13, of an Act to Regulate Elections (Revision of 1930), with the various amendments thereto and the supplements thereof, in that they fraudulently and wholly failed to compare the signatures made in the poll books by the applicants for the ballots with the signatures theretofore made by the registered voters whose names were being voted upon in the signature copy registers being in localities where there was permanent registration and to ascertain if said signatures thus written in the poll books were the same or sufficiently similar to the ...

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