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Theurer v. Borrone

Decided: October 23, 1963.

J. BEIER THEURER; EDWARD J. SPINELLO; HELEN MARSHALL AND GEORGE W. KANE, MEMBERS OF THE HUDSON COUNTY BOARD OF ELECTIONS AND MEMBERS OF THE BOARD OF CANVASSERS; AND WILLIAM MCPHAIL, SUPERINTENDENT OF ELECTIONS OF HUDSON COUNTY; AND RALPH DEMARTINO, CITIZEN AND TAXPAYER OF THE CITY OF HOBOKEN, PLAINTIFFS AND WILLIAM L. PHELPS, FLORENCE B. PHELPS, ERICH F. KORMAN AND JUDITH S. KORMAN, INTERVENERS,
v.
EDWARD J. BORRONE, COUNTY CLERK OF HUDSON COUNTY, ARTHUR C. MALONE, CITY CLERK OF THE CITY OF HOBOKEN, JOHN J. GROGAN, MAYOR OF THE CITY OF HOBOKEN AND LOUIS DEPASCALE; STEPHEN E. MONGIELLO; EDWARD J. BORRONE; LORETTA HAACK; GEORGE NELSON; FRANK CAPRIO; LOUIS FRANCONE; THOMAS O'REILLY; AND JOSEPH BARTLETTA, COUNCILMEN OF THE CITY OF HOBOKEN AND VIOLET AVENGO; MARGARET FISHER; CAROLYN EEMAN; JOSEPHINE ASTRAUSKAS; WARD 2, DISTRICT 1; CATHERINE HURRELL; JAMES O'BRIEN; HEINZ F. HUBERT; ANNA LENGERT; WARD 2, DISTRICT 6; VICTOR PINTO; CATHERINE MURANDA; MARIE VALENTINO; FRANCES DESOMMA; WARD 3, DISTRICT 2; DORIS DONNELLY; VICTOR DAURIA; CATHERINE SORBOLA; HAZEL BRIGGS; WARD 5, DISTRICT 1; MILDRED DARGAN; WILLIAM F. KENNEDY; DANIEL REPETTI; EMMA O'CONNOR; WARD 5, DISTRICT 2; MARTIN MULKEEN; ROSE EMMA; MARY ALUOTTO; VERONICA REPETTI; WARD 5, DISTRICT 3; ROBERT HAYES; ELEANOR GOODE; VALERIE VANDENBERG; STEPHEN LEO GRANDE; WARD 5, DISTRICT 4; JAMES CROSSON; KATHRYN LEMP; MATILDA E. PASBACH; RONALD RUBINO; WARD 5, DISTRICT 5; HELEN MCKEEVER; JOHN SCHMIDT; ELVIRA DEGRIPPO; WILLIAM LANE; WARD 5, DISTRICT 6; CATHERINE SCHNEIDER; ROSE LAINO; JENNIE VECCHIO; MILDRED LISA; WARD 6, DISTRICT 3; DOMINICK DICRISCI; HELEN O'DONNELL; DOLORES MARZOCCA; LENA BUCCO; WARD 6, DISTRICT 4; FREDERICK VASSALO; JAMES HALLIHAN; LILLIAM ALESSI; ALFRED THIELE; WARD 6, DISTRICT 5; MARIE SALVETTI; ELAINE MISKULIN; VIOLA PRESTON; DOLORES PIERRO; WARD 6, DISTRICT 6; MEMBERS OF THE RESPECTIVE DISTRICT BOARDS OF THE CITY OF HOBOKEN; AND ANTHONY L. ROMANO, STEPHEN CAPIELLO AND WALTER HAVENS, MEMBERS OF THE POLICE DEPARTMENT OF THE CITY OF HOBOKEN ACTING ON BEHALF OF ALL MEMBERS OF SAID DEPARTMENT, DEFENDANTS



Artaserse, A.j.s.c.

Artaserse

This proceeding in lieu of prerogative writs was originally brought by the Superintendent of Elections and the County Board of Canvassers of Hudson County and a taxpayer of Hoboken to restrain, among other relief, the City of Hoboken from paying salary increases purportedly authorized by the November 6, 1962 police pay raise referendum in that city.

Defendants are the county clerk, the city clerk, the mayor and council of Hoboken, 52 election district workers in that city, and three Hoboken policemen who represent the policemen as a class.

The county clerk, the city clerk and the mayor and council have answered that they are willing to abide any determination of this court. The election officers and workers have defaulted.

Only the policemen defend, and defend in a vigorous opposition to this suit.

Four other taxpayers of Hoboken were allowed to intervene as plaintiffs. The pretrial order narrowed the relief sought to restrain the payment of the increases and abandoned any statutory relief under the election contest statute, N.J.S.A. 19:29-1 et seq.

Before discussing the legal issues involved, a recitation of the facts which the court has found is in order. The certified election results of November 6, 1962 on Public Question No. 2, which was the pay raise referendum, showed that the question was carried by a plurality of 638 votes, that is, 4,963 "yes" votes to 4,325 "no" votes. Shortly after the election there were anonymous complaints of certain irregularities in the election made to the superintendent of elections, the F.B.I. and to the prosecutor's office of Hudson County. No action was taken until January 7, 1963 when, at the direction of the Deputy Attorney General in charge of the Hudson County prosecutor's office, the superintendent of elections, Mr. William MacPhail, and Mr. Thomas J. Herlihy, a detective from the prosecutor's staff, opened and rechecked the sealed election machines.

The court finds that the machines had been locked and sealed at the close of the polling on November 6, 1962, and that they were in that same untouched condition when opened by the superintendent of elections and Mr. Herlihy on January 7, 1963.

The court finds that the machines when rechecked showed that the actual vote on Public Question No. 2 had been 4,066 "yes" votes to 5,054 "no" votes, that is, that the question had in fact been defeated by a plurality of 938 votes. Thirty-three of those votes were absentee ballots. Hence the machines actually showed 4,033 "yes" votes.

The discrepancies in the returns from 13 election districts leads inescapably to the inference of fraud. The court finds that there were fraudulent returns made from these 13 districts. The evidence at the trial conclusively established these

facts. Indeed, plaintiffs' factual contentions have not been challenged at all by defendants. Their defense lies in certain legal objections.

I will first dispose of the defendants' academic issue that the board of canvassers and the superintendent of elections are not proper party plaintiffs since the theory of their action can only be sustained on the ground that it is a taxpayer's suit. While agreeing with this contention, I consider the issue moot because of the presence of the taxpayer plaintiffs who have sufficient standing to maintain the suit. Probably the ...


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