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Fiscella v. Nulton

Decided: October 16, 1952.

ANTHONY FISCELLA, PLAINTIFF-RESPONDENT,
v.
HENRY G. NULTON, COUNTY CLERK OF UNION COUNTY, DEFENDANT, AND FREDERICK A. CARMODY, DEFENDANT-APPELLANT



Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

The defendant, Frederick A. Carmody, appeals from a summary judgment entered by the Law Division, Union County, restraining the county clerk from printing the name of Frederick A. Carmody as a Republican candidate for the office of councilman of the second ward of the City of Rahway, on the sample ballots and official ballots for the general election to be held November 4, 1952, and denying the application of the defendant Carmody to dismiss the complaint on the grounds of laches and that it is both frivolous and insufficient in law.

The parties have stipulated the facts which, succinctly stated, are: No candidate of the Republican party filed a petition for nomination for the office in question at the primary election held on April 15, 1952. The only person to receive any "write-in" votes was the defendant Frederick A. Carmody, 125 votes being cast for him. Candidates for other offices on the Republican ticket were nominated. Carmody failed to file his certificate of acceptance within the statutory period of seven days and having been filed out of time, the county clerk notified him that his name would not appear as a candidate. On April 30, 1952 a certificate of selection signed by the members of the Republican County Committee, representing the City of Rahway and the second ward thereof, was filed with the County Clerk of Union

County, designating Frederick A. Carmody as the Republican candidate to fill the vacancy for the office in question. Thereafter, in due course, the name of Carmody appeared on the sample ballot for the general election as the regularly nominated councilmanic candidate. Subsequently, on or about October 12, 1952, the plaintiff Anthony Fiscella filed a complaint in lieu of prerogative writ in the Superior Court, Law Division, asserting that Carmody's nomination by the county committee members was invalid and seeking an order restraining the county clerk and as clerk of elections of Union County, from printing Carmody's name on the sample ballot and the official general election ballot. Thereafter an application was made by the defendants to dismiss the complaint on the grounds that it was frivolous and insufficient in law and laches. The court denied this application. Immediately thereafter the court heard and granted the application of the plaintiff for a summary judgment.

The system of elections in the United States is not of common law origin. Taylor v. Beckham , 178 U.S. 548, 20 S. Ct. 890, 1009, 44 L. Ed. 1187 (1900). The subject is entirely statutory and the exercise of the right of suffrage is in all states regulated by constitutional and statutory provisions. Sharrock v. Keansburg , 15 N.J. Super. 11, 16 (App. Div. 1951). In considering the legislative intendment, the statutory words are to be given their common usage. Ford Motor Co. v. N.J. Dept. of Labor and Industry , 5 N.J. 494, 503 (1950). And, if the legislative intendment is clear and unambiguous, the court will not "* * * indulge in a presumption, arising from extrinsic evidence, that the Legislature intended something other than what it actually expressed." Bass v. Allen Home Improvement Co. , 8 N.J. 219 (1951). "A construction that will render any part of a statute inoperative, superfluous or meaningless, is to be avoided. 2 Sutherland, Statutory Construction (3 d ed.), sec. 4705, p. 339." Hoffman v. Hock , 8 N.J. 397, 406, 407 (1952). In the construction of a statute, it must be so construed as a whole with reference to the system of which

it is a part. Conflicting provisions ought to be reconciled in accord with the general intent. Maritime Petroleum Corp. v. City of Jersey City , 1 N.J. 287, 298 (1949).

The question presented here is whether the "write-in" votes of 125 electors received by Carmody constituted a "nomination" under the provisions of the Elections Law, in view of the fact that he did not file a certificate of acceptance within the prescribed period of time and, whether under such circumstances, a vacancy was created whereby the local members of the county committee were warranted in nominating a candidate to fill the vacancy under the provisions of R.S. 19:13-18 and R.S. 19:13-20, as amended.

The defendant-appellant contends that under the circumstances there was, in fact, a valid nomination; that a vacancy resulted from Carmody's failure to timely file his acceptance and the authority of the local committee members to fill the vacancy was thereby brought into play by the provisions of R.S. 19:13-20.

The plaintiff contends that the act of designating a candidate by write-in votes at the primary election by the electorate is a designation or choice merely equivalent to an inchoate nomination for candidate or nominee; that before a person is entitled to be a nominee or candidate as representative of a party, such person must, as a condition precedent, file his acceptance within the statutory period of seven days; that under the provisions of R.S. 19:3-7, Carmody's nomination was null and void and consequently, there was no nominee or vacancy.

We think it may be helpful to quote the pertinent provisions of the Elections Law around which this controversy revolves. Reference to other provisions of the statute that the parties contend have an important bearing on ...


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