Proceeding in lieu of prerogative writ.
[19 NJSuper Page 314] The plaintiffs, George W. Krogman, David C. Ingersoll, Dr. Joseph A. Furey and Roy S. Parson aspire for the office of commissioner of the City of Wildwood. The election is scheduled for May 13, 1952. On April 3, 1952,
they attempted to file their nominating petitions with the municipal clerk, R. Leonard Byrne, agreeable to R.S. 40:75-3, which statute provides as follows:
"The names of the candidates for commissioners shall be filed with the municipal clerk in the manner and form and under the conditions set forth in this section and sections 40:75-4 and 40:75-5 of this Title; said filing to be at least twenty days prior to an election for the first members of the commission and at least forty days prior to any other municipal election. The petition of nomination shall consist of individual certificates equal in number to at least one-half of one per centum (1/2 of 1%) of the entire vote cast at the last preceding general election, but in no event less than twenty-five.
Each certificate shall be a separate paper and shall contain the name of but one signer and the name of but one candidate. No signer shall, at the time of filing the certificate, have signed more certificates for candidates for that office than there are places to be filled. If an elector has signed two or more conflicting certificates all such certificates shall be rejected."
The last day for filing, it is conceded, was April 3, 1952.
Plaintiffs allege that a proper petition in form and substance was executed. This the municipal clerk conceded at the hearing on the merits of this cause held on Thursday, April 10, 1952, at Cape May Court House. By the plaintiffs it is contended that between the hours of 4:00 P.M. and 12:00 midnight, April 3, 1952, efforts were made by the petitioners for nomination at Wildwood City Hall and elsewhere to file their nomination papers but with no avail; that when all reasonable efforts to contact the city clerk or his deputies failed, the nomination petitions were filed in manner following:
As to the petitions of Dr. Joseph A. Furey and David C. Ingersoll: These petitions were addressed to R. Leonard Byrne, City Clerk, and delivered to the Wildwood City Hall, being accepted by Sergeant Clifford Olson of the Wildwood Police Department, the said Olson being the officer on duty in the City Hall at this time; the petitions subsequently being locked in a rear room for safekeeping until approximately 11:00 P.M. at which approximate time they were returned to the agent who delivered them, at his own request, and were handed personally to Commissioner Clarence M. Malley, who had personally left his home and come to the City Hall for the purpose
of accepting nominating petitions in the absence of the clerk or his deputy; following which the said petitions were once more locked in the rear room for safekeeping.
As to the petition of Roy S. Parson: This petition was likewise addressed to the city clerk and left with the said Olson, and was likewise subsequently personally handed to the said Malley and was locked in the rear room for safekeeping.
As to the petition of George W. Krogman: This petition was likewise addressed to the city clerk and was personally handed to the said Malley in the city clerk's office at the city clerk's desk, following which this petition together with the other three petitions, was locked in the rear room for safekeeping.
These proceedings are the sequel to the city clerk's act pursuant to R.S. 40:75-44, which reads as follows:
"Whenever the municipal clerk shall believe any petition for recall, petition for nomination, incumbent's petition, or other petition, to be defective, he shall, before returning the petition as provided herein, present his objections in writing to the justice of the supreme court holding the circuit in which the municipality is located. The justice shall proceed summarily to examine the clerk's objections, and shall forthwith make an order sustaining or overruling any or all of the objections. Such order shall be final and binding on all parties concerned."
On the representation made by the city clerk, this court signed an order sustaining the objections made by him. At that time also, as now, the court pointed out that two salient features of the statute dealing with the filing of nomination petitions focus attention, to wit: (1) time, (2) place. The first deals with April 3 and the second with "the municipal clerk." We have used the words "city clerk" to mean the same person. The order signed was not predicated on failure in point of time, but on the place or with the person. Both points here, however, are raised again.
This is a proceeding in the nature of a prerogative writ for mandamus. At the hearing these facts, and others, were substantiated:
(a) The last day for filing petitions for nomination was April 3, 1952;
(b) The office of the city clerk was regularly open for transaction of official business each week day (except Saturday) until 4:00 P.M.;
(c) The clerk's office was open for business all day April 3, 1952, until the regular closing hour;
(d) Plaintiffs did not attempt to file their nominating petitions until after 4:00 P.M. on April 3, 1952;
(e) Petitions of plaintiffs Furey and Ingersoll were left with Sergeant Clifford Olson of the police department, then on duty at City Hall (not at city clerk's ...