Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[44 NJSuper Page 458] Some of the plaintiffs are candidates for the Republican nominations for the offices of councilmen in the Borough of Haledon, Passaic County, at the forth-coming primary election to be held April 16, 1957; others of them for the Republican party offices of county committeemen in the same borough. Jennie Bracco and others are contesting candidates for the Republican party nominations for the same offices. This is an appeal from a judgment of the Law Division sustaining the determination of the defendant, clerk of the County of Passaic, to set forth the names of the Bracco group on the election machine ballots on the same horizontal line as that upon which appear the names of an affiliated group of candidates for the Republican Party nominations for the offices of state senator, assemblymen
and freeholders, hereinafter referred to as the "county ticket."
Plaintiffs had filed their petitions of nomination with the borough clerk before the Bracco group did, using the identification, "Regular Republican Organization," N.J.S.A. 19:23-17. When the Bracco group subsequently filed, using the designation "Regular Organization Republican," the borough clerk refused to certify their petitions on the ground that the designation was too similar to that of plaintiffs. On complaint to the Superior Court the designation was ruled valid and ordered certified by order dated March 22, 1957, a Friday. On the following Monday, March 25, 1957, the Bracco group, purporting to act under N.J.S.A. 19:49-2, served the defendant with a request that their names be placed upon the primary election voting machine ballot upon the same line with the names of the members of the county ticket, referred to above, that group also having selected "Regular Organization Republican" as their designation. The campaign manager of the county ticket having consented thereto, defendant indicated his intention to comply with the request of the Bracco group and plaintiffs thereupon instituted this action.
The position of the plaintiffs is based upon the fact that the request of the Bracco group was not made within the time specified by N.J.S.A. 19:49-2; that there having been no compliance with the time schedule fixed therein by either group of local candidates, neither may be placed upon the same line with the county ticket; and that the relative positions of the local tickets, inter se , was controlled by a drawing for that purpose made by the borough clerk pursuant to N.J.S.A. 19:23-24.
We consider first the argument based upon limitations of time. The material portion of N.J.S.A. 19:49-2 reads as follows:
"For the primary election for the general election in all counties where voting machines are or shall be used, all candidates who shall file a joint petition with the county clerk of their respective county and who shall choose the same designation or slogan shall
be drawn for position on the ballot as a unit and shall have their names placed on the same line of the voting machine; and provided further , that all candidates for municipal or party office in municipalities in counties where voting machines are or shall be used who shall file a petition with the clerk of their municipality bearing the same designation or slogan as that of the candidates filing a joint petition with the county clerk as aforesaid, may request that his or her name be placed on the same line of the voting machine with the candidates who have filed a joint petition with the county clerk as aforesaid by so notifying the county clerk of said county in writing within two days after the last day for filing nominating petitions and thereupon the county clerk shall forthwith notify the campaign manager of such candidates filing a joint petition as aforesaid of said request, and if the said campaign manager shall file his consent in writing with the said county clerk within two days after the receipt of said notification from said county clerk, the clerk of said county shall place the name of such candidate on the same line of the voting machine on which appears the names of the candidates who have filed the joint petition as aforesaid; * * *."
The last day for filing nominating petitions for the 1957 primary election was March 9, 1957. Thus there was no strict compliance by the Bracco group with the literal requirements of the statute that the request to be placed on the same line with the county ticket bearing the same designation should be made of the county clerk within two days thereafter, or by March 11, 1957. Whether, under the circumstances here shown, the county clerk could have been compelled by the Bracco group to comply with the request they made March 25, 1957, we need not determine. The failure to make the request on or prior to March 11, 1957 was clearly excusable by virtue of the refusal, as of that time, by the borough clerk to certify the designation "Regular Organization Republican" in favor of the Bracco group, leaving their statutory right to be aligned on the ballot with the county ticket of the same designation in a shroud of uncertainty. A request to the county clerk in that posture of affairs could reasonably have been expected to be futile. The Bracco group immediately sought judicial relief against the borough clerk, and when they made the request for alignment with the county ticket the first business day after the court vindicated their right to the disputed designation,
the defendant was, in our view, justified under the statute in acceding to the request upon the signification of assent by the representative of the county ticket.
As was stated in Wene v. Meyner , 13 N.J. 185, 197 (1953), in reference to another provision of the statute ...