For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
N.J.S.A. 19:5-4 provides:
"* * * A vacancy in the office of a member of the State Committee of any political party * * * shall be filled for the unexpired term by the members of the county committee of such political party in the county in which the vacancy occurs."
On September 18, 1963 Walter H. Jones, a member of the Republican State Committee from Bergen County, resigned that post. On September 25 Jones in his capacity as Chairman of the Bergen County Republican Committee sent a letter to the members of the county committee reminding them of the meeting scheduled for October 1, 1963, and informing them that the county committee would elect his successor to the State Committee at that time. This meeting had been listed as one of the regular meetings of the committee on the reverse side of the membership cards which had been issued to each committee member. The letter contained two recommendations of the committee's Executive Committee: (1) that Sidney S. Coggan be elected to fill the vacancy; and (2) that a convention-type procedure be inaugurated for the election.
Coggan's candidacy for the post was opposed by certain members of the committee. Pierce H. Deamer and Samuel P. Bartoletta, members of the committee, and John K. Pollitt, whom they were supporting to fill the vacancy, filed a complaint against Jones, the County Committee, its Executive
Committee, three other officers of the County Committee, and Coggan. The plaintiffs sought relief in lieu of prerogative writs and a declaratory judgment that the election had been illegally called. On September 30, 1963 the defendants were ordered to show cause on October 1 why the election should not be restrained. At the hearing on the order in the Superior Court, Law Division, Judge Leyden denied the relief requested but retained jurisdiction so that the plaintiffs could pursue the matter in the event they were disappointed in the election.
At the meeting of the committee that evening a motion was made from the floor and unanimously passed that the committee hold the election for the position of State Committeeman. A nominating speech and two seconding speeches were made on behalf of each of the two candidates. In accordance with a motion from the floor, duly seconded and passed, the vote was taken by a modified convention system, i.e., each municipal chairman announced the results of the voting in his unit, and then the individual members of the unit were polled and each announced his own vote. There were 571 members present and voting out of a total membership of 836; 500 voted for Coggan and 71 for Pollitt.
At the time of the election, the County Committee, which is elected annually in the spring primary election, had not yet adopted bylaws as it is empowered to do by statute (N.J.S.A. 19:5-3). Bylaws for previous years had provided that seven days' notice be given members of elections to fill vacancies occurring in committee offices but were silent with respect to the election of State Committee members.
On November 8, 1963 Deamer and Bartoletta amended their complaint (Pollitt withdrew from the action), seeking to have the election set aside and a new election held with the method of voting to be as directed by the court. Defendants moved for summary judgment, which was granted by Judge Leyden on November 15, 1963. Plaintiffs appealed, and while the matter was pending in the Appellate Division, we certified it on our own motion.
Plaintiffs contend that the statute (N.J.S.A. 19:5-3) requires each county committee to adopt bylaws for its proper government. And they further contend that in the absence of bylaws neither the County Chairman nor the Executive Committee has any power not specifically conferred by statute. Thus, they conclude that the election was invalidly called. They also contend that secret ballots should have been used in taking the votes as a matter of public policy.
The only mandatory provision in the statute relating to bylaws is that "[t]he county committee shall determine by its bylaws the units into which the county shall be divided for purpose of representation in the county committee." N.J.S.A. 19:5-3. The statute further provides that the committee "shall have power to adopt a constitution and by-laws for its proper government." The office of chairman of the county committee is established by the statute which provides that he shall be elected by the members at their first meeting, that he ...