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Cottingham v. Vogt

Decided: March 29, 1960.

ROBERT COTTINGHAM, SAUL VOGEL AND JULIUS FIELO, PLAINTIFFS-RESPONDENTS,
v.
ELEANOR B. VOGT, CLERK OF THE CITY OF EAST ORANGE, VINCENT CAREY, JOHN M. DUNN, LETRIS MILLER AND ANTHONY GIULIANO, CLERK OF THE COUNTY OF ESSEX, DEFENDANTS-APPELLANTS



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

Goldmann

[60 NJSuper Page 577] Because of the necessity of preparing ballots for the impending primary election, this court specially scheduled oral argument of this appeal from a Law Division judgment ordering defendant County Clerk Giuliano to remove the names of defendants Carey, Dunn and Miller, candidates for the office of county committeeman,

from the primary ballot in and for the City of East Orange. After considering the argument of counsel we reversed the judgment and announced that this opinion would be prepared and filed at an early date.

Plaintiffs filed their nomination petitions for county committeeman with defendant Vogt, City Clerk of East Orange, on March 9, 1960. Defendants Carey, Dunn and Miller filed their petitions the next day. Plaintiffs thereupon duly filed their written objections to the nominations of these defendants with the city clerk, in accordance with R.S. 19:13-10, claiming that they had failed to vote for a majority of the candidates of their political party at the last general election in 1959. The city clerk proceeded to pass upon the validity of the objections, N.J.S.A. 19:13-11, and overruled them.

Plaintiffs then instituted an action in the Superior Court, Law Division, seeking a reversal of the city clerk's determination. The trial judge concluded that the clerk had erred because defendants had failed to vote in the last general election, and accordingly entered the judgment under appeal.

The position taken by plaintiffs in the Law Division was that the requirements for candidacy in a primary election, set out in N.J.S.A. 19:23-7 and 19:23-15, have been fully adjudicated by our courts. George v. Gillespie , 40 N.J. Super. 139 (App. Div. 1956), and In re Dvorken , 12 N.J. Misc. 438, 172 A. 337 (Sup. Ct. 1934), are cited as authority for the proposition that candidates at a primary election must have voted for a majority of the candidates of their political party at the last general election. The argument is that since N.J.S.A. 19:23-7 requires that a petition of nomination shall recite that the signers, among other things, "are members of a political party (naming the same), and that at the last general election preceding the execution of the petition they voted for a majority of the candidates of such political party," the George and Dvorken cases require that the candidates themselves satisfy this requirement.

The portion of N.J.S.A. 19:23-7 applicable to a candidate reads:

"Accompanying the petition each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition, that he is a member of the political party named therein; that he consents to stand as a candidate for nomination at the ensuing primary election of such political party, and that, if nominated, he consents to accept the nomination, to which shall be annexed the oath of allegiance prescribed in section 41:1-1 of the Revised Statutes duly taken and subscribed by him before an officer authorized to take oaths in this State."

And N.J.S.A. 19:23-15, which deals with acceptance by a candidate, recites that

"Accompanying the petition and attached thereto each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition; that he consents to stand as a candidate for nomination at the ensuing primary election, and that if nominated, he agrees to accept the nomination. Such acceptance shall certify that the candidate is a resident of and a legal voter in the jurisdiction of the office for which the nomination is to be made and there shall be annexed thereto the oath of allegiance prescribed in section 41:1-1 of the Revised Statutes duly taken and subscribed by the person so nominated before an officer authorized to take oaths in this State."

Admittedly, the only ground for the result reached by the Law Division was that defendant candidates had not voted in the 1959 election. There is no such requirement in either of the above-quoted sections of the Election Act. It is entirely reasonable to say that had it been the legislative intention that a candidate must have voted in the last general election in order to qualify as a nominee, the Legislature would have explicitly manifested that intention. As it is, the only requirements under the quoted sections are that the candidate is qualified for the office mentioned in the petition; he is a member of the political party named ...


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