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Welsh v. Board of Education of Township of Tewksbury

Decided: March 28, 1950.

JOHN A. WELSH, GEORGE B. MELICK, AND CHARLES A. HILDEBRANT, APPELLANTS,
v.
THE BOARD OF EDUCATION OF THE TOWNSHIP OF TEWKSBURY AND THE STATE BOARD OF EDUCATION OF THE STATE OF NEW JERSEY, RESPONDENTS



Jacobs, Eastwood and Jayne. The opinion of the court was delivered by Jayne, J.s.c.

Jayne

The prosecution of this appeal brings to our attention the following succession of events.

Pursuant to the provisions of the statute a resolution adopted by the Board of Education of the Township of Tewksbury, Hunterdon County, proposing the issuance of bonds for the acquisition of a designated site and the erection thereon

of a school building with adequate furnishings was submitted to the voters of the school district at a special election held May 16, 1949. R.S. 18:7-85. Of the 620 votes cast, the tally revealed that 311 votes were in the affirmative and 309 in the negative.

On May 26, 1949, the three appellants associated with seven other duly qualified taxpayers and voters presented a petition to the Commissioner of Education, who is clothed with authority to hear and determine all controversies and disputes arising from the administration of the school law, challenging the accuracy of the canvass of the votes. R.S. 18:3-14. Cf. Buren v. Albertson , 54 N.J.L. 72 (Sup. Ct. 1891); DuFour v. State Superintendent , 72 N.J.L. 371 (Sup. Ct. 1905).

The object of the petition is conspicuous and indubitable. The petition alleges that "errors were made in counting or declaring the vote upon said public question, in that said ballots were improperly marked and illegal votes were counted ," and the sole prayer of the petition is that the "New Jersey Commissioner of Education conduct a recount of the ballots cast at said election and set a time and place for said recount."

In obedience to an order of the Commissioner made on May 31, 1949, a recount of the ballots was conducted on June 2, 1949. The Commissioner rendered his decision on June 7, 1949, in which he determined that 311 valid ballots were cast in favor of the proposal, 306 in the negative, and 3 ballots should be rejected.

The Legislature has deemed it advantageous to the public welfare to limit reasonably the time within which the validity of school district elections authorizing the issuance of bonds can be controverted. The present enactment reads:

"No action, suit, or proceeding to contest the validity of the election ordering the issue of bonds shall be instituted after the expiration of twenty days from the date of the election." R.S. 18:7-89.

Apprehending, presumably, that the recount had not capsized the announced result of the election, the appellants on June 3, 1949, and as yet within twenty days after the election, filed a complaint in lieu of certiorari in the Law Division of

the Superior Court seeking to contest and nullify the election upon the general and indefinite allegations that ineligible, ...


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