Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Labrecque, J.A.D.
By the present appeal the parties seek a determination as to who is entitled to the position of Democratic member of the Atlantic County Board of Elections (the Board) for the two-year term beginning March 1, 1971.
The present action was originally instituted by John L. Toy, Jr. (Toy), the remaining Democratic member of the Board, against the two Republican members of the Board, William M. Snyder and Ryerson Mausert. Later, the complaint was amended to add Dolores I. Mooney (Mrs. Mooney), as a party plaintiff, and Governor Cahill as a party defendant. The amended complaint in lieu of prerogative writs charged that Mrs. Mooney was the lawfully nominated Democratic member of the Board; that she should have been so commissioned by the Governor, and that the organizational meeting of the Board held on March 9, 1971 without her participation was improper and illegal. Subsequently William T. Dunbar (Dunbar), the other claimant to the position, was permitted to intervene.
Thereafter there was a motion by plaintiffs and a cross-motion by Dunbar for summary judgment, based upon affidavits by the parties. Later, in response to the court's direction that oral testimony be produced, both plaintiffs testified. Dunbar did not testify but elected to rely on his prior affidavits. In its amended final judgment the court held that Dunbar was the valid nominee and that the Board's organizational meeting of March 9, 1971 was valid and proper. Mooney thereupon filed the present appeal.
Each county election board consists of four persons. N.J.S.A. 19:6-17 provides, in pertinent part:
Two members of such county board shall be members of the political party which at the last preceding general election, held for the election of all of the members of the General Assembly, cast the largest number of votes in this State for members of the General Assembly, and the remaining 2 members of such board shall be members of the political party which at such election cast the next
largest number of votes in the State for members of the General Assembly.
The method of nomination and appointment of members of a county board is set out in N.J.S.A. 19:6-18 as follows:
During the 30 day period immediately preceding February 15 in each year, the chairman and vice-chairlady of each county committee, and the State committeeman and State committeewomen [ sic ] of each of such 2 political parties, respectively shall meet and jointly, in writing, nominate one person residing in the county of such county committee chairman, duly qualified, for member of the county board in and for such county. If nomination be so made, the said county committee chairman shall certify the nomination so made to the State chairman and to the Governor, and the Governor shall commission such appointees, who shall be members of opposite parties, on or before March 1. If nomination be not so made on account of a tie vote in the said meeting of the county committee chairman, county committee vice-chairlady, State committeeman and State committeewoman, in respect to such nomination, the said county committee chairman shall certify the fact of such a tie vote to the State chairman, who shall have the deciding vote and who shall certify, in writing, to the Governor, the nomination made by his deciding vote. Appointees to county boards of election pursuant to this section shall continue in office for 2 years from March 1 next after their appointment.
Members of the state committee are elected at the primary for the general election of the year in which a Governor is elected. N.J.S.A. 19:5-4. On January 1, 1971 the duly elected members of the Democratic State Committee for Atlantic County were David Dichter (Dichter) and Mary E. Haynie (Mrs. Haynie). The chairman and vice-chairlady of the Atlantic County Democratic Committee are elected annually at the organization meeting of the committee following the primary election. In January 1971 Dunbar was the Democratic county chairman and the vice-chairlady was Bertha Brown (Mrs. Brown).
The facts in the context of which the present controversy must be resolved are brief. On January 27, 1971 Dunbar addressed a letter to Mrs. Haynie advising her of a meeting to be held on Tuesday evening at 8 P.M. (without specifying
the date) "to nominate a person for the County Election Board." Upon receipt of the notice on the following day, Mrs. Haynie phoned Dunbar and, after ascertaining that the Tuesday referred to in the notice was February 2, 1971, protested that the notice was too short to permit the attendance of Dichter, the state committeeman, who was then out of the country working on an International Aid project. Dunbar allegedly refused to change the meeting date.
A similar notice of the meeting had been mailed to Dichter at his usual residence in Atlantic City, although there is evidence that Dunbar knew at the time that he was out of the country. No contention is made that the notice could have been received by Dichter in time to ...