Barron v. Green

• Decision Date: 19 April 1951
• Docket Number: No. L--4986,L--4986
• Citation: 80 A.2d 586,13 N.J.Super. 483
• Parties: BARRON v. GREEN.
• Court: New Jersey Superior Court

Page 483

13 N.J.Super. 483

80 A.2d 586

BARRON v.GREEN.

No. L--4986.

Superior Court of New Jersey Law Division.

April 19, 1951.

Florence E. Josephson, Sea Isle City, for plaintiff.

Robert K. Bell, Ocean City, Albert M. Ash, Ocean City, for defendant.

WOODS, A.J.S.C.

Plaintiff, Elwood M. Barron, a resident of Avalon, New Jersey, asserts that he filed his petitions nominating him for the office of borough commissioner of the borough of Avalon to be voted upon May 8, 1951, with Florence S. Green, municipal clerk of the borough of Avalon on March 29, 1951; that his petitions, acceptance, oath of allegiance as filed were in all respects in good and proper order; that the same were received and later rejected as having been filed out of time contrary to the statute in such case made and provided.He further alleges that after filing same with the municipal clerk, he was notified by letter to appear at the borough hall at 12:30 p.m., Thursday, April 5, 1951, for the purpose of drawing for places on the ballot; that later he was advised by the defendant that his name would not appear on the ballot as a candidate for the office of borough commissioner and that he should not appear for the drawing as noticed for the reason that his petitions had been filed on a date later than in the statute made and provided; that he, notwithstanding, appeared at the borough hall at 12:30 p.m., April 5, 1951, and demanded that his name be placed in the box for drawing for a place on the ballot, but his demand was refused by the defendant.

The statute brought to determine the question under consideration is R.S. 40:75--3, N.J.S.A., the pertinent part of which reads as follows: 'The names of the candidates for commissioners shall be filed with the municipal clerk * * * at least twenty days prior to an election for the first members of the commission and at least forty days prior to any other municipal election.'

In this instance we focus the requirement on that part reading 'at least forty days prior to' the municipal election to be held May 8, 1951.

Was the filing of the petitions by the plaintiff, Barron, on March 29, 1951, in time?

The question was argued on a rule to show cause before the court at Woodbury, New Jersey on the return day, April 13, 1951.The court read the complaint and supporting affidavits on the motion requesting that the court give judgment that (a) the petitions were filed in time; (b) that the defendant be directed duly to receive and file the petitions of the plaintiff; (c) that the defendant be directed to hold a drawing for places on the ballot accordingly.

The phrases 'at least' and 'prior to' must be defined in their accepted meanings.'At least' is an adverbial phrase meaning at the lowest estimate; at the smallest concession or claim; in the smallest or lowest degree; at the smallest number; and sometimes used in the sense of clearly.It is a phrase of emphasis, expressive of a minimum, and implies the possibility of more.Sometimes it imports uncertainty, taking its meaning from the context, and hence, under particular circumstances, has been held equivalent to 'at most,''at the least,''fully,''not less than,' and 'not to exceed.'7 C.J.S., at p. 165.

In the case of State (Stroud, Prosecutor)v. Consumers' Water Co., 56 N.J.L. 422, 28 A. 578(Sup.Ct.1894), the legality of an ordinance was challenged.One of the challenges brought up the provision of the statute dealing with a special election held in Atlantic City on June 30, 1892, in respect to the acceptance of the provisions of 'An act to enable cities to supply the inhabitants thereof with pure and wholesome water,' and the supplements thereto.'The point made under this head is that the statutory notice of the special election held to obtain the sentiment of a majority of the legal electors of Atlantic City was not given,--that the notice which was given was only a five days' instead of a six days' notice.'The court went on to say: 'The statute(Rev., p. 725, § 52) requires notices of the special election to be set up and published at least six days previous to the day of election.The notices were given June 24th and the election was held June 30th.

By excluding one and including the other of these days in the computation, it appears that six days' notice was given.

This method of computation is the mode adopted in this state unless the requirement is that the days shall be entire days.Den v. Fen, 3 Halst.(8 N.J.L.) 303; State v. Ackerson, North Bergen, 10 Vroom (39 N.J.L.) 694, 695;McCulloch v. Hopper, 18 Id.(47 N.J.L.) 189.

Nor do the words 'at least six days' imply more than that six days' notice shall be given.'

The former Justice's Court Act required that all summons should be served at least five days before the time of appearance.Under this act the true mode was to exclude either the day of service or of the appearance, and to include the other.Day v. Hall, 12 N.J.L. (Sup.Ct.1831).

The court finally said on this point, Reed, J., speaking for the same 'Whatever differences of view, in respect to the force which should be given to the words 'at least,' may exist elsewhere, it is settled here that they do not change the requirement of a certain number of days' notice into a requirement that the days shall be entire.The notice was sufficient.'

In the case of Den ex dem. Bray v. Fen, Nancy Drake, 8 N.J.L. 303(Sup.Ct.1826), the court remarked: 'Where a statute requires service for a fixed number of days, the mode of computation is to include the day of service or the appearance, and to exclude the other; but where a number of entire days are required, both the day of service and the day of appearance are to be excluded.'

In the case of State, Ackerson v. North Bergen, due notice of a meeting of the township committee was called into question.The charter required ten days' notice.Said the court, Dalrimple, J., speaking: 'The construction is, that notice given on the 25th day of August, of a meeting on the 4th day of September then next, was not a notice of ten days.I think it was according to the recognized method of computation in such cases.State v. Jackson, 1 South. (4 N.J.L.) 323; Den v. Fen, 3 Halst.303;Gillespie v. White, 16 Johns. 117;Vandenburgh v. VanRensselaer, 6 Paige 147.'

In the case of Introcaso v. Burke, 3 N.J.Super. 276, 65...