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In re Application of Superintendent of Elections

Decided: October 12, 1940.

IN THE MATTER OF THE APPLICATION OF THE SUPERINTENDENT OF ELECTIONS IN HUDSON COUNTY FOR AN ORDER TO OBTAIN THE PRODUCTION OF POLL BOOKS PURSUANT TO CHAPTER 196 OF THE LAWS OF 1940


For the municipal clerk, Charles A. Rooney.

For the Superintendent of Elections, Jacob J. Levey.

Before Brogan, Chief Justice, sitting as statutory agent.

Brogan

BROGAN, CHIEF JUSTICE. On September 23d, this year, chapter 196, Pamph. L. 1940, became part of the general law of this state concerning elections. The said act was an amendment to R.S. 19:18-1 and thenceforth became part thereof. That amendment provided that the Superintendent of Elections in the counties of the first class "shall have access and be permitted to inspect and examine any and all poll books for said county for any election which may have been held or shall be held in said county," &c. Jurisdiction to compel compliance with these provisions of the amendment is expressly conferred upon any justice of the Supreme Court or any Common Pleas judge. Cf. 19:18-1, as amended.

A petition was presented to me, alleging, among other things, that demand, in writing, had been made upon the city clerk of Jersey City for the poll books used in the general

elections for the years 1936, 1937, 1938 and 1939; and that the municipal clerk refused to honor the said demand. An ex parte order was thereupon made directing that the poll books designated be produced in court. On the return of the order later the same day, the clerk produced the poll books for the years 1938 and 1939, and stated and offered proof that the poll books for the general election of 1936 had been burned up two years after that election and that the poll books of 1937 had been burned sometime early in the month of January, 1940.

The testimony that the poll books for the years 1936 and 1937 had been burned, as stated in the clerk's evidence, was not disputed or challenged in any way by proof to the contrary.

The issue presented is a narrow one. Jurisdiction of the matter is wholly statutory. The powers conferred upon the court are those of a legislative agent, to do that which the legislature, by the amendment, directs the court to do. The authority is set forth in this language: "Such justice or judge shall forthwith make an order directing the official having possession or custody of the said poll books to produce them at once in the court * * * and upon their being produced said justice or judge shall deliver the same to the Superintendent of Elections." The statute confers the jurisdiction and at the same time defines the limit thereof.

The Superintendent of Elections contends that it is the duty of the city clerk, under the Elections statute, to retain poll books for five years. The city clerk, to the contrary, says that it was incumbent upon him to retain poll books for a period of two years after the election at which they had been used. Both sides rely upon certain sections of the statute -- R.S. title 19. These sections speak of registry books. Neither of these terms "registry book" or "poll book" is defined, as such, in any section of the statute; nor does either appear in the list of "words and terms" which are defined. Cf. 19:1-1. The question involved is the meaning of the statute on this issue.

The applicant invokes certain sections of the statute which provide that registry books may not be disposed of for a

period of five years and at the oral argument contended that the words "registry books" and "poll books" are synonymous terms. In his brief it is asserted that "poll books are registry books" and that therefore the clerk violated the statute which ordains that registry books shall be preserved for five years, by not preserving these poll books, relying on R.S. 19:18-7. A careful reading and comparison of the sections of the statute pertinent to this inquiry, however, compels the conclusion that the terms "registry books" and "poll books" are not synonymous or interchangeable, and that this section of the statute (R.S. 19:18-7) does not apply. The statute, in unmistakable terms, makes them out to be quite different election instrumentalities. An analysis of the ...


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