On appeal from the Middlesex Circuit Court.
For the appellant, Paul W. Ewing, John E. Toolan and Edmond A. Hayes.
For the respondent, Frederick F. Richardson, pro se, and Walter C. Sedam.
Before Brogan, Chief Justice, and Justices Bodine and Colie.
The opinion of the court was delivered by
BODINE, J. In May of last year there was an election held for five City Commissioners to serve in the City of New Brunswick pursuant to R.S. 40:75-2. Thomas J. Radics, the appellant, received 4,393 votes and the contestant Richardson -- respondent here -- 4,384. Radics qualified. The result of the election was changed when the Circuit Court, on a statutory contested election proceeding, rejected 241 ballots of men in the military service.
The County Board of Elections in examining the envelopes containing the ballots posted, according to the provisions of
R.S. 19:54-25, et seq., rejected three because their names did not appear upon the Adjutant-General's list. The remaining 241 were counted. It appears that of this number 63 were not registered and 178 were. The Circuit Court found that the unregistered service men could not vote, and since the ballots of the registered voters could not be segregated from the whole, all must be rejected in compliance with the principle laid down in Burkett v. Francesconi, 127 N.J.L. 541, but that case is not applicable to the present situation.
R.S. 19:54-27 declares that the purpose of the act is to secure for those qualified voters who were in the armed forces of the United States the right to vote in any election held in this state or any subdivision thereof. Provision is made for official mailing to those appearing upon the list of qualified voters certified by the Adjutant-General of a ballot with instruction as to the method of voting and two envelopes; the outer to contain a certificate by the voter as to his qualification, the other to contain the ballot. In this manner a secret ballot was secured.
R.S. 19:54-35 is as follows: "The county boards of elections shall promptly after receiving any ballot make such investigation as may be necessary to ascertain whether or not the persons whose names appear on the outside of the outer envelopes are legally qualified voters actually entitled to vote at such election. Should any dispute arise as to how any ballot shall be counted the county board shall refer the matter to the court of common pleas for determination." The investigation is not whether the voter is registered but whether he is qualified. That qualification, under article II of the constitution, is a matter of citizenship, age and requisite residence only; nothing is said as to registration.
In the county board a dispute arose as to the envelopes containing ballots of unregistered voters. The learned judge of the Court of Common Pleas had ordered them counted and they ...