[81 NJSuper Page 580] This is an election case stemming from a recount under N.J.S.A. 19:28-1 and a contest under
N.J.S.A. 19:29-1. The case has been pretried and the facts essential to a determination on the merits have been stipulated.
Charles S. Judson and George M. Gould were candidates for the office of mayor for the Borough of Middlesex in the general election held on November 5, 1963. As a result of the recount Judson received 2,077 votes and Gould received 2,076 votes. There remain uncanvassed two absentee ballots, one a military service ballot cast by Major Charles Gilroy, and the other a civilian absentee ballot cast by Catherine McDermott. These two ballots were rejected by the Middlesex County Board of Elections. The issue before me is whether either or both ballots should be counted for Gould for whom they were cast.
The parties have stipulated that Gilroy, who was stationed in Okinawa, had qualified to vote by military service ballot, and that McDermott had qualified to vote by a civilian absentee ballot due to a physical disability which existed when she applied for her absentee ballot and continued past November 5, 1963.
Gilroy signed his military ballot-certificate in the proper place designated for a military service voter. However, he took his own oath and also signed the jurat. N.J.S.A. 19:57-17 provides that upon the flap of the envelope sent to the absentee voter there shall be printed a certificate to be signed by the voter whereon he certifies to certain factual data. Beneath the voter's signature is the following jurat which, in my opinion, was intended for use by the ordinary noncommissioned service man:
"Sworn and subscribed to before me this day of , A.D. at in the State or Country of .
(signature and rank of commanding officer)
Said certificate shall be sworn to before the military service voter's commanding officer * * *."
N.J.S.A. 19:57-23 provides that the certificate shall be sworn to "before a commissioned officer, noncommissioned officer, or petty officer in the Armed Forces of the United States * * *."
The instructions on the ballot sent to Gilroy read: "3. Complete the certificate attached to the flap of this envelope. 4. Ask any commissioned officer to witness your signature." Beneath Gilroy's signature was a jurat which contained a line for the witness to sign, and beneath the line appeared the ...