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Berry v. Gates

Decided: August 28, 1942.

JOHN J. BERRY, JR., GEORGE H. MILLER, CHARLES DUERR, SAMUEL R. BLAINE, NATHANIEL W. FRANZBLAU, VICTOR J. SALERMO, JOSEPHINE H. PHILLIPS, THEODORE R. INGE, HARVEY G. STEVENSON, HENRIETTA KASEN, JOSEPH MELILLO, DUDLEY E. GARRABRANT, DAVID H. JONES, FRANKLIN CONKLIN, 3D., A. LESLIE PRICE AND HELEN M. CRAVEN, PETITIONERS,
v.
RUSSELL C. GATES, COUNTY CLERK OF THE COUNTY OF ESSEX, RESPONDENT



On application for writ of mandamus, or in the alternative for writ of certiorari.

For the petitioners, James R. Giuliano.

For the respondent, Arthur T. Vanderbilt (G. Dixon Speakman).

Colie

COLIE, J. John J. Berry, Jr., and fifteen other individuals filed a petition with the Supreme Court, praying:

"1. That a Writ of Mandamus may issue out of and under the seal of this Honorable Court directed to the said Russell C. Gates, County

Clerk of the County of Essex, commanding and enjoining him to certify the names of petitioners as properly endorsed in petitions filed in his office to the municipal clerk of each municipality in the County of Essex specifying in such certificate that the petitioners belong to the Republican Party, and further, commanding and enjoining him in drawing the specifications for the printing of the official ballots to place therein the names of your petitioners pursuant to the statutes in such case made and provided.

"2. That if the Court should determine that the proceedings and the order of the said Arthur Tench or the County Clerk of the County of Essex should be reviewed by Writ of Certiorari issued out of this court that such a Writ issue for the purposes aforesaid."

The facts disclose that a petition addressed to the County Clerk of Essex County, signed by the requisite number of qualified voters, was filed in the office of the County Clerk on August 6th, 1942. This petition set forth the names and addresses of twelve persons desiring to run for nomination as members of the General Assembly; one for County Supervisor, three for members of the Board of Chosen Freeholders of Essex County. Two days thereafter, on August 8th, the sixteen persons named in the aforementioned petition signed a paper declining the nomination and requesting that their names be not printed on the Republican ballot for the primary election to be held on September 15th, 1942. This declination was filed in the office of the county clerk on August 10th. On August 12th the three persons named in the petition as "Committee on Vacancies" filed a completely new slate. This instrument as filed on August 12th was defective in several respects, one of which was that it did not set forth "the residence and post office address of each person so endorsed." Furthermore it was defective because it was not sworn to by the three members of the committee. Nathan Kerber, the notary public who signed the jurat to the affidavit admitted under oath on August 17th, 1942, that he never administered the oath to James J. Cardell or Jean R. Toure, two members of the committee. This in face of the jurat attached thereto that both of the persons last named were sworn, and subscribed the affidavit before the notary public.

On or before August 17th a certificate of acceptance, amended and supplemental certificate of nomination and affidavit of the three members of the "Committee on Vacancies" were filed which, if effective, would appear to have corrected all prior irregularities and defects in the proceedings. A determination as to the efficacy of the attempted amendments is called for.

The legislature has granted broad powers of amendment in the General Election Law. R.S. 19:13-13 reads:

"Amendment of defective petitions; time for. A candidate whose petition of nomination, or any affidavit or affidavits thereto, is defective, may cause such petition, or the affidavit or affidavits thereto, to be amended in matters of substance or of form as may be necessary, but not to add signatures, or such amendment or amendments may be made by filing a new or substitute petition, or affidavit or affidavits, and the same when so amended shall be of the same effect as if originally filed in such amended form; but every amendment ...


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