The essential facts in this matter are uncontradicted. Defendant Charles Mays is a 36-year-old resident of New Jersey. He resides at 199 Seaview Avenue, Jersey City, which is located in the 31st Assembly District. He has lived at that address for over four years. Prior thereto he resided in the same city at 238 Carbon Street, which is located in the 32nd Assembly District. He was and continued to be a registered voter in that District up to May 31, 1977. On that date, which was seven days prior to the primary election, defendant transferred his voter registration from the Carbon Street address to his actual residence, 199 Seaview Avenue. Charles Mays originally registered to vote in 1964.
A petition for defendant's nomination as candidate for Democratic Assemblyman from the 31st Assembly District was regularly filed, and the Secretary of State in turn filed the requisite certification with the County Clerk of Hudson County. At the primary election held on June 7, 1977, defendant was one of the two successful Democratic candidates from the 31st Assembly District.*fn1
Plaintiffs William O. Perkins, Jr. and John Alston, candidates for the Democratic nomination for the General Assembly of New Jersey, filed a complaint in lieu of prerogative writs on or about May 31, 1977, seeking a declaratory judgment that defendant Charles Mays was not, as a matter of law, a qualified and eligible candidate for the General Assembly of New Jersey in the primary election of June
7, 1977 from the 31st Assembly District. The complaint was verified by William O. Perkins, Jr. Plaintiffs sought an order requiring the Board of Elections and the Superintendent to notify the general public of the ineligibility of defendant and the removal of the lever on the voting machine to prevent his being a viable candidate. Assignment Judge O'Brien, refused to enter an order to show cause; instead he entered an order denying such application without an adjudication as to the merits, on the ground that sufficient cause had not been established to justify such order.
On June 20, 1977 plaintiff Perkins filed a stipulation of dismissal. On June 17, 1977 an amended complaint was filed by John Alston and Frank P. Perrucci, another candidate in the Democratic primary election. The amended complaint added an additional defendant, the Acting Secretary of State.
On July 11, 1977 Charles Mays filed an answer to the complaint and amended complaint. The remaining defendants, by way of answer to the amended complaint, admit that Charles Mays was permanently registered and that he transferred his registration to his Seaview Avenue address on May 31, 1977. Charles Mays moved for summary judgment, that motion being returnable on August 19, 1977. Defendants Secretary of State, Hudson County Superintendent of Elections and the Hudson County Board of Elections moved for an order dismissing the complaint on the ground of failure to state a claim upon which relief can be granted, that motion returnable August 15, 1977. The entire matter was set down for trial on August 15, 1977. On that date the motion concerning the Secretary of State, Superintendent of Elections and the Board of Elections was granted without opposition. The Attorney General without objection, was permitted to present legal argument on behalf of these parties as an amicus curiae.
The matter was designated by the court as an election contest, pursuant to N.J.S.A. 19:29-1 et seq. All parties
concede that the requirements for filing an election contest have been met, with the exception of the provision under N.J.S.A. 19:29-2 requiring that a bond be filed by petitioner. The court ordered that the bond be filed by August 19, 1977.
All parties agreeing that the issue involved at trial would be resolved on the law, legal argument was heard and no testimony taken on the trial date.
The argument advanced by plaintiffs is essentially two-pronged. First, they argue that defendant Mays did not meet the constitutional requirement for membership in the General Assembly as set forth in N.J. Const. (1947), Art. IV, § I, par. 2, in that he did not meet the requirement of ...