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Burkett v. Francesconi

Decided: January 21, 1942.

CHARLES A. BURKETT, PETITIONER-APPELLEE,
v.
VENTORINO FRANCESCONI AND STANLEY CIECHANOWSKI, RESPONDENTS-APPELLANTS; GEORGE FARRELL, JR., PETITIONER-APPELLEE, V. VENTORINO FRANCESCONI AND STANLEY CIECHANOWSKI, RESPONDENTS-APPELLANTS



On appeal from the Camden County Circuit Court.

For the petitioners-appellees, Benjamin F. Friedman.

For the respondents-appellants, Alexander Feinberg and James M. Davis, Jr.

Before Brogan, Chief Justice, and Justices Case and Heher.

Brogan

BROGAN, CHIEF JUSTICE. This is an appeal from a judgment of the Camden County Circuit Court in a contested election case. Messrs. Burkett, Farrell and Westcott were candidates of the Republican party at the general election in November, 1940, for the office of member of the Board of Chosen Freeholders of Camden County. They were opposed by Messrs. Ciechanowski, Francesconi and Molt, candidates of the Democratic party. The latter group was declared elected and certificates of election were issued by the County Board of Canvassers. The result of the election was challenged by the unsuccessful candidates, invoking the provisions of our Election Law, 19:29-1, et seq. The first section of the statute invoked provides for such contest on several grounds among which are (a) Malconduct, fraud or corruption on the part of the members of any district board, or of any members of the Board of County Canvassers sufficient to challenge the result; * * * (e) When illegal votes have been received, or legal votes rejected at the polls sufficient to change the result.

No evidence was offered that the provisions of subdivision "e" were violated, and the other grounds for contest set forth in the several subdivisions of the statute (19:29-1) were not relied upon by the contestants. The fraud or misconduct charged and proved was: (1) that a number of ballots in

four districts (sixth, eighth, ninth districts, seventh ward, and fifth district, fourth ward) of the City of Camden were marked in favor of the appellants by someone other than the voter, the claim being that the voter had made no choice; (2) the changing of the marking on ballots voted for the contestants and substituting for the voter's choice a marking for the appellants; (3) the alteration of ballots in these districts wherein the changes did not affect the office in question or the candidates for this office, and (4) the alteration, by someone other than the voter, of marking on ballots affecting questions submitted to the electorate, viz., whether the salaries of the police and fire departments should be increased and whether liquor should be sold on Sunday. In this class of tampering, ballots that had been voted by the voter in the "No" column were changed and corresponding marks supplied for the "Yes" column. There were instances where the voter failed to express any preference on these questions and some other person had supplied marks for the "Yes" column.

The contest was heard by Circuit Court Judge Palmer who found that the fraud in the districts mentioned was sufficient to challenge the result in those districts and his judgment was that the entire vote in those districts be rejected, that is, not tabulated or counted for either side. The rejection of the total vote in these districts resulted in the displacement of the two appellants, Francesconi and Ciechanowski, and the election of Burkett and Farrell. Thereupon a judgment was entered annulling the certificates of election previously issued to the two appellants and the issuance of a certificate of election to the two contestants.

Many grounds of appeal are stated and they will be dealt with in the order in which they are argued. It is first said that these proceedings are strictly statutory and that the statute must be rigidly followed. This point may be conceded. (Clee v. Moore, 119 N.J.L. 215, 216, and cases cited therein.) Then it is argued that the word "challenge" mentioned in the statute above quoted, subdivision "a," means "to call in question, dispute or doubtful." This, too, may be conceded. (In re Clee, 119 N.J.L. 310, 316, and authorities cited therein.) It is further argued that where the result of the

fraudulent conduct of the Board may be ascertained and its effect exscinded, and the true will of the electorate determined, this should be done: that elections should not be set aside unless clearly illegal. This, too, is an accurate statement of our law. (In re Clee, supra, and cases cited.)

It is next insisted that a petition to set aside an election should be dismissed unless fraud was shown which challenged the returns to such an extent that the fraud could not be purged and the true vote determined. This argument rests on premises that do not comprehend the whole situation. The fraud in this case was such as to impair confidence in the integrity of the contents of the boxes. Proof of fraud under our law requires that the ballot be invalidated and where fraud has been perpetrated in an election district by the officers of election, or permitted by them to such an extent and character that the correct and genuine result cannot be determined ...


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