For modification -- Chief Justice Weintraub, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Francis. Opposed -- None. The opinion of the court was delivered by Francis, J.
The appeal in this election matter involves the legal propriety of a restraint issued by the Law Division of the Superior Court against the defendant Alexander Allan, County Clerk of Bergen County, and the defendant Julius E. Kramer. The judgment prohibits Allan from placing the name of Kramer as a candidate for the office of mayor of Garfield on the official ballot for the general election to be held in November 1957. It also enjoins Kramer from asserting that "he is in fact a candidate" for that office. Review was sought in the Appellate Division, but we certified on our own motion.
The factual situation which gave rise to the controversy is not complicated. Plaintiff Sadloch and defendant Kramer
were rivals in the primary election of April 16, 1957 for the Republican party nomination for the office of mayor of Garfield. Sadloch won. Prior to primary day one Benti had filed a petition as an independent candidate for the office, so as to be eligible to compete in the November general election. N.J.S.A. 19:13-1 to 8. Shortly after Sadloch's victory, Benti withdrew his candidacy. Thereupon Kramer presented a petition apparently signed by the requisite number of qualified voters nominating him as the successor independent candidate for mayor, and applied to have his name printed on the official ballot for the November election. The county clerk announced that he had accepted the petition and would include the name on the ballot. Sadloch instituted this proceeding in lieu of prerogative writ to prevent such action.
Since the exhaustive and instructive opinions in Wene v. Meyner, 13 N.J. 185 (1953), and Stevenson v. Gilfert, 13 N.J. 496 (1953), there can be no doubt about the authority of the Legislature to adopt reasonable regulations for the conduct of primary and general elections. Such regulations, of course, may control the manner of preparation of the ballot, so long as they do not prevent a qualified elector from exercising his constitutional right to vote for any person he chooses. Rose v. Parker, 91 N.J.L. 84, 86 (Sup. Ct. 1917).
The specific problem presented here calls for consideration of certain sections of the Election Law and their prohibitory effect, if any, upon the attempted independent candidacy at the ensuing general election of an individual who sought and was defeated at the polls in the primary for the nomination of his political party for the same office.
A candidate for elective office may be nominated to run as an independent candidate at the general election in November by a petition signed by the requisite number of qualified persons and filed 40 days before the primary is held. N.J.S.A. 19:13-1, 3, 5, 9. Or he may seek the nomination of the political party with which he is affiliated at the primary election. In this event, 40 days
prior thereto he must file a petition signed by the specified number of qualified voters who are members of his political party. N.J.S.A. 19:23-5, 7, 14. The names of all such candidates are printed upon a public ballot to be used at the election, N.J.S.A. 19:23-24, 27, including, of course, those persons who are vying for the party designation for a particular office.
Whichever path to nomination is chosen by a candidate, he must execute a formal acceptance which is annexed to the petition. N.J.S.A. 19:13-8. This subsection dealing with the primary nomination provides:
"No candidate so named shall sign such acceptance if he has signed an acceptance for the primary nomination or any other petition of nomination under this chapter for such office."
And N.J.S.A. 19:13-4, which prescribes the form and contents of the petition, reiterates:
"No such petition shall undertake to nominate any candidate who has accepted the nomination for the primary for such position."
Finally, as if to remove any conceivable question on the subject, N.J.S.A. 19:23-15, which controls the direct nomination procedure in the event that a vacancy occurs after the filing of ...