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Ziegener v. Bach

Decided: April 5, 1938.

AUGUST ZIEGENER, RELATOR,
v.
GUSTAV BACH, COUNTY CLERK OF HUDSON COUNTY, DEFENDANT; JENNIE C. SMITH, RELATOR, V. GUSTAV BACH, COUNTY CLERK OF HUDSON COUNTY, DEFENDANT



On application for alternative or peremptory writ of mandamus.

For the relators, Harry Lane, Julius J. Seiden and Jacob L. Levey.

For the defendant, J. Emil Walscheid.

Before Justices Bodine, Heher and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. Is a candidate, who ran second, entitled to a certificate of election pursuant to 1 Rev. Stat. 19:3-18 (paragraph 25, section 18, Election act of 1930), when the entire election was set aside on proceedings under 1 Rev. Stat., supra, 19:29-1a (paragraph 355, section 1, I, Election act of 1930)? We think not.

We have before us the record in the Ziegener case only, but we are told that the two causes are entirely similar, and the determination of one is to control the determination of the other. We therefore treat both cases as though each were properly before us.

Each relator, one a male, and the other a female, was a candidate for a party position on the Republican state committee from Hudson county at the primary election held on September 21st, 1937. The Hudson county board of canvassers determined and certified that each relator ran second, and certificates of election were issued to the respective opponents of each. Pursuant to 1 Rev. Stat., supra, 19:29-1a (paragraph 355, section 1, I Election laws supra), each relator instituted a proceeding in the Hudson County Circuit Court to set aside the election of his and her opponent because of alleged malconduct, fraud, or corruption in the election. The learned judge of that court, after hearings, filed conclusions upon which orders were signed stating that the elections of relators' opponents were "null and void." Later these orders were amended so as to provide "that the primary election held on September 21st, 1937, in the county of Hudson * * * is hereby set aside and for nothing holden."

After these amended orders were signed, a demand was made upon the county clerk of the county of Hudson to deliver certificates of election to relators. This demand was predicated upon 1 Rev. Stat., supra, 19:3-17, 18 (paragraph 24,

section 17, paragraph 25, section 18, supra) which provides as follows:

"19:3-17. If it shall be determined in the manner hereinafter provided, that the election of a person to a party office is null and void, no certificate of election shall be delivered to the candidate whose election shall have been so determined to be null and void.

"19:3-18. If such determination shall have been made after the delivery of the certificate of election to such candidate, the certificate shall be null and void, and whether such determination shall have been made before or after the delivery of a certificate of election, a certificate of election ...


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