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Gangemi v. Berry

Decided: June 24, 1957.

THOMAS GANGEMI, PLAINTIFF-APPELLANT,
v.
BERNARD J. BERRY, ET AL., DEFENDANTS-RESPONDENTS



On certified appeal to the Appellate Division from the Law Division of the Superior Court.

For affirmance -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

The question at issue here is the constitutional sufficiency of the provisions of L. 1953, c. 211, N.J.S.A. 19:57-1 et seq., styled the "Absentee Voting Law (1953)," purporting to authorize civilian absentee voting at elections held in New Jersey.

May 14, 1957, there was an election in Jersey City to choose five members of the city commission, constituted the local governing body; 21 names appeared as candidates on the voting machines and also on the paper ballots prepared for the use of absentee voters pursuant to the cited statute. On the final count, candidate Berry received 57,561 votes and candidate Gangemi 57,405 votes, a difference of 156 votes, placing Berry fifth and Gangemi sixth according to the vote polled by the several candidates. But these totals included, not only the absentee military service ballots cast, but also the outcome of a canvass of 458 civilian absentee ballots polled by leave of the statute; of the latter Berry

received 328 and Gangemi 74. This result was confirmed by a statutory recount; and a certificate of election was issued to Berry, who thereupon qualified and assumed charge of the office. It is conceded that Berry's "plurality was produced by the civilian absentee votes"; and thus the decisive question is whether the statutory direction to that end is in contravention of the State's organic law.

By this proceeding in lieu of prerogative writ, the plaintiff Gangemi demands that the County Board of Elections be directed to "review their canvass" and "set aside all ballots of all civilian absentees whether cast in [his] favor" or "in favor" of the incumbent Berry, and to certify his own election accordingly. Judge Proctor sustained the statute as a valid exercise of legislative power; and there was summary judgment for defendants. The plaintiff appealed to the Appellate Division; and on his motion we granted certification of the appeal.

Section 3 of the statute, N.J.S.A. 19:57-3, includes within the class entitled to vote by absentee ballot a "civilian absentee voter who expects to be or may be absent outside the State or the United States on the day on which an election is held or who may be within the State on the day of any election but because of illness or physical disability will be unable to cast his ballot at the polling place in his election district on the day of the election, provided he is a registered voter, and is not otherwise disqualified by law from voting in such election." A "civilian absentee voter" is therein defined, section 2, N.J.S.A. 19:57-2, as "any qualified and registered voter of the State who expects to be absent from the State on the day of any election and any qualified and registered voter who will be within the State on the day of any election but because of illness or physical disability will be unable to cast his ballot at the polling place in his election district on the day of the election."

The contention is that this purposed exercise of the legislative function is in excess of the "grant of power" contained in Article II, paragraph 4 of the 1947 State Constitution, and therefore void. This, in despite of the

basic principle that, unlike the Federal Constitution, the State Constitution is not a grant but a limitation of powers. State v. Murzda, 116 N.J.L. 219 (E. & A. 1936); Behnke v. New Jersey Highway Authority, 13 N.J. 14 (1953).

The particular provision of the Constitution is in these terms:

"4. In time of war no elector in the military service of the State or in the armed forces of the United States shall be deprived of his vote by reason of absence from his election district. The Legislature may provide for absentee voting by members of the armed forces of the United States in time of peace. The Legislature may provide the manner in which and the time and place at which such absent electors may vote, and for the return and canvass of their votes in the election district in which they respectively reside."

It is said in argument that the polestar of constitutional construction is the "framers" intention "when they adopted this provision," and reference is made to State v. Lyons, 1 Terry 77, 5 A. 2 d 495 (Del. Ct. Gen. Sess. 1939), where it was found to be "an inescapable fact that the direct question of absentee voting came before the [Constitutional] Convention and was intentionally eliminated in so far as citizens in actual military service were concerned," and the "inference is unmistakable that the Convention expressly refrained from providing for absentee voting, but left the Constitution as it theretofore had been"; also that in the "Constitutional debates there are many statements indicating the clear understanding that the casting of a ballot was to be effected by the personal presence of the voter at the polls." (Emphasis, counsel's)

The cited case, it is said, exemplifies reliance upon the "history" of the particular constitution to the "exclusion of out-of-state decisions which were based on their respective state constitutions." And recourse is had to the holding there that where the debates of the Constitutional Convention "clearly point out the purpose of a particular provision of the Constitution," the "aid of such debates is valuable and satisfactory," (citing Cooley's Const. Law 142; 11 Am. Jur. 706), "especially * * * when the Constitution

became effective, as in Delaware, upon its adoption by the Convention, and was not subject to subsequent ratification by vote of the people," which, of course, is not the case in New Jersey. Of this, more hereafter.

Acknowledging the "well-recognized distinction" between State and Federal Constitutions, as pointed out in State v. Murzda, supra, it is nevertheless insisted that here we are concerned with a constitutional grant rather than a limitation of power, and where " granting as distinguished from limiting provisions [are] involved, this rule, to which the Court below axiomatically adhered, [is] not properly applicable," citing State v. Carrigan, 82 N.J.L. 225 (Sup. Ct. 1912). And we are also cited to Robb v. City of Tacoma, 175 Wash. 580, 28 P. 2 d 327, 91 A.L.R. 1010 (Sup. Ct. 1933), where a distinction was made between provisions of state constitutions in substance "affirmative and permissive" and such as are "negative and prohibitive." We are told that the basic issue here "fits within that distinction," and, so tested, our constitutional provision "grants power in positive language and does not limit by express ...


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