Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D. Conford, S.j.a.d. (concurring).
At the end of a recount under N.J.S.A. 19:28-1 and a review under N.J.S.A. 19:29-1, a judge of the Superior Court declared that in the general election held November 6, 1962 Francis R. Farley and John C. Clay had received the same number of votes for mayor of the Borough of New Providence. Farley appeals.
Whether the judgment below is correct depends upon whether the judge properly rejected the absentee ballots voted by Mrs. Esther Shilling and Mrs. Beverly Zaccagnio and accepted those voted by C. Ernie Fischer and Florence Fischer, his wife. The Fischers voted for Clay; Mrs. Shilling and Mrs. Zaccagnio for Farley.
The ballots of Mrs. Shilling and Mrs. Zaccagnio were rejected because not accompanied by a physician's certificate as required by N.J.S.A. 19:57-18 (hereafter called physician's certificate).
Mrs. Shilling and Mrs. Zaccagnio applied for absentee ballots on mimeographed forms supplied to them for that purpose, prepared, we presume, by the county clerk. Cf. N.J.S.A. 19:57-4, 6 to 12. For reasons which shall appear hereafter, it is important to note that, oddly, the Election Law does not require the civilian applicant to furnish any proof that he is entitled to vote absentee, nor does it prescribe the form of application for a civilian ballot, even though it does for a military service ballot, N.J.S.A. 19:57-5. Indeed, a civilian may apply by letter and need not use the form prepared by the county clerk. Furthermore, although the county clerk is directed by section N.J.S.A. 19:57-16 to "send, with each absentee ballot, printed directions for the preparation and transmitting of absentee ballots," there is no requirement
that the county clerk send such directions to applicants for absentee ballots before he honors their applications and sends them the ballots.*fn1
In answer to the question on the application, "Reason why absentee ballot is requested," Mrs. Shilling answered "confinement to home or hospital due to birth of baby." Her baby was born October 18. Mrs. Zaccagnio answered the same question, "I expect a baby October 30, 1962 and will be unable to go out on election day." Her baby was born October 29.
On the margin of the flap on the inner envelope of the absentee ballots, the county clerk had caused to be printed a certificate (hereafter called the flap certificate) which was meant to comply with N.J.S.A. 19:57-17.*fn2 That portion of the flap certificate material to the decision of this case was
filled out by Mrs. Shilling on November 2 as follows, all of it being printed except the italicized portions:
" I am unable to leave my place of confinement at 4 Lavina Court, Summit, N.J. because of giving birth to baby on October 18, 1962 and will, therefore, be unable to cast my ballot at the polling place in my election district on the date of election. (In the case of any civilian absentee voter who claims the right to vote by absentee ballot by reason of disability, the voter shall include within the outer envelope a certificate of a duly licensed physician or a duly accredited Christian Science practitioner certifying that the voter is confined by reason of sickness or physical disability and will be unable to cast his ballot at the polling place in the absentee voter's election district on the date of the election.)"
That part of the above excerpt from the flap certificate which is contained in parentheses is not to be found in N.J.S.A. 19:57-17. It was apparently composed by the county clerk under the authority of N.J.S.A. 19:57-16 and 18.*fn3
As we have said, the statute does not require the county clerk to give instructions to applicants for absentee ballots. It is, of course, commendable when he does so. Unfortunately, the instructions that were here given with the application forms supplied by the county clerk were misleading, as we shall see, to applicants such as Mrs. Shilling, who were disabled when they applied for absentee ballots but who recovered sufficiently to be able to go to the polls on election day.
The instructions on the application forms were identical with those in the parentheses mentioned above, as follows (emphasis ours):
" Instructions for Preparation and Transmitting of an Absentee Ballot
In the case of any civilian absentee voter who claims the right to vote by absentee ballot by reason of disability, the voter shall include within the outer envelope a certificate of a duly licensed physician or a duly accredited Christian Science practitioner certifying that the voter is confined by reason of sickness or physical disability and will be unable to cast his ballot at the polling place in the absentee voter's election district on the date of the election * * *."
Mrs. Zaccagnio filled out the flap certificate on her ballot as follows, on November 2:
" I am unable to leave my place of confinement at 7 Lavina Court, New Providence because of Maternity and will, therefore, be unable to cast my ballot at the polling place in my election district on the date of ...