Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
Not too many words are needed to explain the factual subject matter of the present appeal and cross-appeal.
At the general election conducted on November 6, 1956, a candidate for the office of Committeeman of the Township of Ewing, Mercer County, was initially announced to have been chosen by a majority of three votes. A recount of the ballots increased the margin of his majority from three to four votes.
Strangely, in the light of subsequent events, a certificate of election was issued to him on November 19, 1956 signed by the chairman of the board of county canvassers, attested by the county clerk, declaring that he was duly elected a member of the township committee in and for the Township of Ewing. The petition that originated the proceeding that we are requested to review was filed on November 13, 1956.
It was made evident that several military service and civilian absentee ballots designated to be cast in the County of Mercer pursuant to N.J.S.A. 19:57 were not received by the Mercer County Board of Elections until after November 6, 1956, the date of the election. Authentic information revealed that a total of 474 absentee ballots out of those which had been mailed to applicants had not been received by the county board and voted at the election, of which 25 had been transmitted to applicants who were qualified voters in the Township of Ewing. The envelopes purporting to
contain the absentee ballots received by the county board of elections after November 6, 1956 have been unopened and impounded, and thus the identity of the absentee and his voting district remain unknown.
Two of the four members of the county board of elections addressed the petition to which reference has been made to the Mercer County Court containing the information that the members of the board were equally divided in their convictions concerning the legal propriety of counting absentee ballots received by the board subsequent to the closing of the polls on election day.
After consideration of the factual circumstances and the pertinent terms of the statute, the County Court made an order the controversial portion of which reads as follows:
"It is ordered on this 5th day of December, 1956, that said absentee ballots referred to above, which bear a post mark of November 5, 1956 or prior thereto, be opened and counted by the Mercer County Board of Elections on the 19th day of December, 1956, and that the results of such count be added to the figures presently certified to by the Board of County Canvassers for Mercer County."
The enforcement of the order has been temporarily restrained to await the determination of the present appeals, both of which impugn the legality of the court's order.
While the jurisdiction of the County Court to have made the order, evidently under N.J.S.A. 19:57-24, is besieged by the appeal, yet the question of public interest projected by counsel in the prosecution of these appeals implicates predominantly the statutory authority in our State of the county boards of elections to count military absentee and civilian absentee ballots which are not received by the board prior to the time designated for the closing of the polls at such election. We shall therefore accord primary attention to that question.
The opportunity of an absentee to cast his vote at a public election by mail has the characteristics of a privilege rather than of a right. Even the recognized right of every voter personally to express his will at the polls is not an absolute ...