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Zimmerman v. Cherivtch

Decided: September 6, 1949.

RICHARD B. ZIMMERMAN, PLAINTIFF,
v.
SIMON M. CHERIVTCH, ET AL., DEFENDANTS



Donges, J.s.c.

Donges

[5 NJSuper Page 591] This is a civil action, brought pursuant to the provisions of Rule 3:81-2, which rule prescribes the procedure for obtaining review, hearing and relief heretofore available by means of prerogative writs. This action, which is for the alleged usurpation of a municipal office, would have been by way of information in the nature of a quo warranto under the practice in effect prior to the adoption of the Constitution of 1947. Although the procedure has been changed by Rule 3:81, the substantive law remains the same and it is provided by R.S. 2:80-5 that all statutory references to the various prerogative writs shall be deemed to refer to the procedure in lieu of prerogative writs, provided for by the rules of the Supreme Court. Both defendant and plaintiff moved for summary judgment, and upon the hearing of said motions, counsel agreed to submit the case on the pleadings and the record as it stood, without the taking of any testimony,

An election was held on May 10, 1949, in the City of Millville, Cumberland County, to choose five City Commissioners under the provisions of the Commission Government Act (R.S. 40:75). In said election defendant, Simon M. Cherivtch, received the highest number of votes and plaintiff, Richard B. Zimmerman, received the sixth highest number of votes. It is plaintiff's contention that defendant was not an eligible candidate for public office, and, therefore, defendant was not legally elected, and plaintiff was one of the five legally elected City Commissioners. In disputing defendant's right to hold the said office plaintiff relies on R.S. 19:4-1 and R.S. 10:1-1.

R.S. 19:4-1 as amended L. 1948, c. 438, p. 1693, par. 3, provides in part:

"No person shall have the right of suffrage * * *

"(2) Who has been convicted of any of the following designated crimes, that is to say * * * larceny of above the value of six dollars, * * * unless pardoned or restored by law to the right of suffrage * * *."

The pertinent language of R.S. 10:1-1 provides:

"The right of citizens of this state to hold office or employment shall be coextensive with their right to vote * * *."

It appears of record that on March 8, 1935, before a Justice of the Peace of Cumberland County, one Samuel Cherivtch pleaded guilty to a charge that he did "feloniously steal, take and carry away the sum of 16 chickens valued at $15.00" and that the said Samuel Cherivtch was thereupon found guilty as charged. The defendant herein, Simon M. Cherivtch, admits that he was once known as Samuel Cherivtch and that he is the Samuel Cherivtch who was convicted of stealing fowl on March 8, 1935, as hereinbefore stated. Although defendant contends that the offense of which he was found guilty is a substantive offense created by R.S. 2:145-7 and does not constitute larceny so as to disenfranchise him and render him ineligible for public office, it is not necessary to decide that question here. Nor is it necessary to here decide

whether plaintiff has any right to the office in issue, the proof of which right would seem to be required by R.S. 2:84-7 and cases decided thereunder as an essential element of plaintiff's case.

The provisions of R.S. 2:80-7 are dispositive of this case:

"No proceedings for review, hearing and relief in lieu of prerogative writs shall be commenced, unless it shall be commenced within thirty days of the accrual of the right to such review, hearing or relief, except as provided in any other law or ...


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