Binetti v. Swenson
| Decision Date | 12 May 1949 |
| Docket Number | No. A--200,A--200 |
| Citation | 66 A.2d 42,3 N.J.Super. 227 |
| Parties | BINETTI v. SWENSON. |
| Court | New Jersey Superior Court — Appellate Division |
Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.
Dominick F. Pachella, of Hackensack, for plaintiff-appellant.
Samuel L. Hirschberg, of West New York (Anthony J. Armore, of West New York, of counsel), for defendant-respondent.
Defendant refused to call a special election for the adoption or rejection of the municipal-manager form of government law, as provided by R.S. 40:79--1 et seq., N.J.S.A., on the ground that the Legislature had not adopted any enabling legislation to provide for absentee voting for those in the military service and, such an election, if held, would be illegal and void and violative of Article 2, Paragraph 4, of the 1947 Constitution, N.J.S.A.
Admittedly, a petition requesting such an election, with the signatures of the required number of qualified voters thereon, was filed with the respondent. Respondent refused to call such an election. Plaintiff thereupon filed his complaint in the Law Division of the Superior Court, praying that the respondent be required to comply with the request of the petition, to which complaint respondent filed his answer that a valid election could not be held because of the failure of the Legislature to adopt effective enabling legislation for military service absentee voting. Since there were only questions of law involved, the matter proceeded before the court on the pleadings, as a consequence of which the Law Divisions dismissed the complaint. This appeal was taken from the judgment of dismissal.
Respondent contends that P.L.1948, c. 18 N.J.S.A. 19:56--1 et seq., providing for military service absentee voting applies only to general and primary elections; that it does not comprehend special elections and is a method provided exclusively for military service absentee voting in peace time only; that the present time is 'in time of war within the meaning and intendment of the Constitution of New Jersey, in view of the fact that an actual state of war exists and will continue until such time as the United States concludes a peace treaty with its enemies'.
We find it unnecessary to decide the issues raised by this appeal, in view of the fact that the 1949 session of the Legislature adopted a supplement to the Act providing for military service absentee voting. It was approved by the Governor on April 28, 1949, and has been designated as Chapter 54, P.L.1949, N.J.S.A. 19:56--28 to 47. This statute provides a comprehensive plan and procedure for military service absentee voting in every type of election not covered by P.L.1948, c. 1. The 1949 law clearly applies to the special election in question and is dispositive of the issue here. The law prevailing at the time of a determination of the question by an appellate court governs and not the law prevailing at the time the...
To continue reading
Request your trial
-
Bergen County Sewer Authority v. Borough of Little Ferry, A--172
...necessary plaintiff could properly invoke this Act in support of its position on the Borough's appeal. Cf. Binnetti v. Swenson, 3 N.J.Super. 227, 229, 66 A.2d 42 (App.Div.1949). II. The next contention advanced by the Borough is that the Act (R.S. 40: 36A--1 et seq., N.J.S.A.) constitutes u......
- Borough of Point Pleasant Beach v. Point Pleasant Pavilion
-
Kantor v. Perth Amboy Nat. Bank, A--126
...etc., 139 N.J.Eq. 97, 49 A.2d 896 (E. & A.1946); Fusaro v. Reid, 2 N.J.Super. 107, 64 A.2d 888 (App.Div.1949); Binetti v. Swenson, 3 N.J.Super. 227, 66 A.2d 42 (App.Div.1949). In order to bring the decision into harmony with the new enactment, the judgment is reversed but without costs to a......
-
Hambright v. Martini.
...that the special election would be illegal by reason of non-compliance with the Soldiers Voting Act. Binetti v. Swenson, Clerk of the Town of West New York, 3 N.J.Super. 227, 66 A.2d 42, 43, recently decided in our Appellate Division, passes directly on the question, and the Court there hel......