Plaintiffs, alleging that they are legal and qualified voters of the City of Asbury Park, filed a complaint challenging the result of the election of councilmen held in that municipality on May 10, 1949.
Defendants (incumbents) move to dismiss the complaint on the grounds, as orally supplemented, that:
(1) the complaint was not filed within time;
(2) summons was not issued or served; and
(3) the complaint fails to set forth a basis for relief.
These issues will be considered in the order stated.
R.S. 19:29-3 provides that the petition (now complaint) of contest shall be filed not later than 30 days after the election and "may be filed within ten days after the result of any recount has been determined or announced." The complaint was filed June 21, 1949, more than 30 days after the election. The issue is whether it was filed within 10 days after the determination or announcement of the result of the recount proceedings.
On May 16, 1949, an unsuccessful candidate petitioned the Monmouth County Court for a recount under R.S. 19:28-1 and on that day an order was made directing the County Board of Elections of Monmouth County "publicly to recount the votes cast in the Twelve Districts of the Two Wards of the City of Asbury Park." It appears from the affidavits filed that on June 10, 1949, after the recount of the vote in eight of the twelve districts had been completed, the moving party advised the County Board of Elections that he desired to abandon the remainder of the recount, and on that date the County Board of Elections announced that the recount had been abandoned. The recount of the remaining four districts never took place.
On June 11, 1949, notice was given of an application to the Monmouth County Court for an order dismissing the recount proceedings. An order to that effect was signed on June 13, 1949. The present complaint was filed on June 21, 1949.
It is contended that the mentioned action of the Board on June 10, 1949, constituted a determination and announcement of the result of the recount and hence the present complaint was not filed within the statutory 10 day period of limitation.
The words "determined or announced" in R.S. 19:29-3, quoted above, appear to relate to the determination or announcement of the Board of Elections, at least where the recount confirms the original result. The alleged determination of the Board of Elections on June 10th was not, ...