[81 NJSuper Page 59] These are cross-motions for summary judgment. Plaintiff James S. Rafferty seeks judgment
removing defendant Frank D. Schatzman as candidate of the Democratic Party for the office of Middlesex County Clerk, at the next general election, and to have his name placed on the official ballot as the Democratic Party candidate.
Defendant Schatzman's motion seeks to dismiss Rafferty's complaint and, in effect, to have himself declared as the Democratic candidate for County Clerk.
A brief recital of the facts which are not in dispute will set the stage for the decision which is to follow. Joseph M. Duffy, now deceased, had been elected in November 1959 as Middlesex County Clerk for a term expiring after the general election in November 1964. Under N.J.S.A. 19:23-14, March 7, 1963 was the last day for candidates to file for the primaries for the general election to be held on November 5, 1963. Duffy died on March 9, 1963. Pursuant to N.J.S.A. 40:38-8.1, the Governor appointed defendant Schatzman to fill the vacancy in the office of County Clerk. On April 16, 1963 the primary election was held throughout the State of New Jersey. The sample ballots printed and distributed in accordance with law, for the election in Middlesex County, indicated that the offices to be voted upon in the November general election would be for member of the State Senate, four members of the General Assembly, two members of the Board of Chosen Freeholders, and for individual municipal offices. No provision was made in the ballot for the office of Middlesex County Clerk. Plaintiff Rafferty, who resides in Middlesex Borough, contends that he received one write-in vote for the office of Middlesex County Clerk, and thereafter filed an acceptance for that position. Premised upon this one vote, he contends he is entitled to be the Democratic candidate for the office of County Clerk because a vacancy existed at that time.
It is obvious that on March 7, 1963, the last date for filing nominations for the primary, there was no vacancy for the office of Middlesex County Clerk because the incumbent, Duffy, did not die until March 9, 1963. In addition, under the provisions of N.J.S.A. 40:38-25, Duffy had previously
appointed defendant Schatzman to serve as a Deputy County Clerk. Under R.S. 40:38-26, upon Duffy's death, Schatzman automatically became the Acting County Clerk to fill the vacancy. The argument made by plaintiff that a vacancy existed which authorized him, or anyone else, to have his name written in for the April 1963 primary is completely specious and without foundation in law.
In fact, the procedure provided by the Legislature to take care of this kind of contingency is so clearly set forth in N.J.S.A. 19:27-11, quoted below, that there appears to be no reasonable doubt that the procedure followed by the respective county committees of the Democratic and Republican Parties, was the correct one. Since Duffy's death occurred more than 37 days prior to November 5, 1963, Schatzman's appointment by the Governor was only good until a successor was elected on November 5, 1963. N.J.S.A. 19:27-11 specifically provides for the naming of candidates for the election to be held on November 5, 1963.
I am of the opinion that N.J.S.A. 19:27-11 is the exclusive method provided by the election laws for the selection of candidates to fill a vacancy which occurs after the time limit for filing petitions for primary nominations. The statute, in significant part, reads:
"In the event of any vacancy, howsoever occurring, in the representation of any * * * county or municipal office, which vacancy shall occur after the last day for filing petitions for nominations for the primary election and prior to thirty-seven days preceding the general election, the members of the county committee of each political party representing the territory affected by such vacancy are hereby authorized to select a candidate for the office in question and within thirty-four days prior to the general election to file a statement of such selection duly certified to with the county clerk, and the person so selected shall be the candidate of the party at the ensuing general election.
Beside the selection of candidates by the respective committees of each political party as before provided, candidates may also be nominated by petition in a similar manner as herein provided for direct nomination by petition for the general election; but the petition shall be filed with the ...