Citation Numbers: 2 N.J. Misc. 1058
Judges: Gummere
Filed Date: 10/25/1924
Status: Precedential
Modified Date: 7/25/2022
The opinion of the court was delivered by
(after argument). I said a little while ago that it seems to me that the question whether the name of Mr. Shields should or should not appear on the ballot depended on the construction and effect of this four hundred and forty-sixth section, providing that the filing of a document or performance of a duty on or before a certain fixed date could be done or performed on Monday, rather than on the last day named in the statute, if that day happened to fall on Sunday. This declination, if it had been
So, the first question is whether the delivery of the paper, this declination, although it is not so declared in the two hundredth, section, is a filing in the secretary of state’s office, and I think it is. It was not the intent of the legislature that a candidate for election should go to the secretary of stale and hand him a paper containing his declination, duly acknowledged, so as to show beyond question that it is his act. and that the secretary of state should then take it home and put it among his own personal papers or throw it in a waste-basket. The candidate is to deliver it to the secretary of state, as the representative of the public, so- that the people of the state, the electorate, may know, from Sussex to Cape May, that this candidate has retired from the contest, by going to the secretary of state’s office and examining the documents on file in his office. Tt is to remain there, in my humble opinion, just as any other paper filed there would, so that next year, or ion years from now, if anybody
Eor the reasons indicated, I think the four hundred and forty-sixth section applies to the situation which we have been discussing this morning, and that, where the thirtieth day before election falls on a Sunday, a candidate who desires to withdraw from a contest may do- it by presenting his certificate of declination to the secretary of state on the following Monday. That is what was. done in this case, and, as a result of this reasoning, which seems to me to- be- sound, I think that the name of . Dr. Shields has no place on any ballot in the State of New Jersey.
Now, I may go a little further, and say as to this reasoning, which seems to 'me to be sound, I am not depending entirely upon my own view. On Thursday of this week the members of the Supreme Court happened to be in Trenton in the performance of their official duties, and we all considered this question of such great importance to the whole people of the state that we devoted two hours to a discussion of tírese very questions -which I have elaborated this morning," and by a very large majority of all of the justices we reached the conclusions that I have attempted to express
And I will say one word more. Even if I had reached the opposite conclusion as to the construction of the statute, I would refuse to make this order. This declination was filed in the secretary of state’s office on the 6th of October, and it was notice to the world of the action of this candidate; and this present application was made to me on the 23d, between two and three weeks afterward, during’ all of which time the county clerk of this county, in the faithful performance of his duty, lias been engaged in making preparations for the coming election, for the benefit of the people of the county whom he is serving, and he has. largely performed that duty; and it is my humble opinion that, if anybody wanted to challenge the propriety of omitting the name of this candidate on the ballot, he should have acted, promptly.
It seems impossible to escape the conclusion that, even if the name of Shields was improperly left off, a direction to the county clerk to destroy all ballots already printed and reprimí them would necessarily disenfranchise a large number of the voters of this county, and I think that it was for the very purpose of preventing such a result that the legislature said in the two hundredth section, under which this proceeding has been inaugurated, that the application may be made to the1 Supreme Court justice to compel the county clerk to correct the ballots, and it says that the said justice, upon being satisfied of the existence1 of error in the ballot as printed, may thereupon summarily require the county ¡clerk to correct such error, or he may, although satisfied of
Mr: Clerk, you may go on and print the ballots as you have started to do.