Byrne, Application of
| Decision Date | 17 April 1952 |
| Docket Number | No. L--5792,L--5792 |
| Citation | 19 N.J.Super. 313,88 A.2d 283 |
| Parties | Application of BYRNE. |
| Court | New Jersey Superior Court |
George M. James, Wildwood, for the writ.
W. Elmer Brown, Atlantic City, contra.
The plaintiffs, George W. Krogman, David C. Ingersoll, Dr. Joseph A. Furey and Roy S. Parson, aspire for the office of commissioner of the City of Wildwood. The election is scheduled for May 13, 1952. On April 3, 1952 they attempted to file their nominating petitions with the municipal clerk, R. Leonard Byrne, agreeable to R.S. 40:75--3, N.J.S.A., which statute provides as follows:
The last day for filing, it is conceded, was April 3, 1952.
Plaintiffs allege that a proper petition in form and substance was executed. This the municipal clerk conceded at the hearing on the merits of this cause held on Thursday, April 10, 1952 at Cape May Court House. By the plaintiffs it is contended that between the hours of 4:00 P.M. and 12:00 midnight, April 3, 1952, efforts were made by the petitioners for nomination at Wildwood City Hall and elsewhere to file their nomination papers but with no avail; that when all reasonable efforts to contact the city clerk or his deputies failed, the nomination petitions were filed in manner following:
As to the petitions of Dr. Joseph A. Furey and David C. Ingersoll: These petitions were addressed to R. Leonard Byrne, City Clerk, and delivered to the Wildwood City Hall, being accepted by Sergeant Clifford Olson of the Wildwood Police Department, the said Olson being the officer on duty in the City Hall at this time; the petitions subsequently being locked in a rear room for safekeeping until approximately 11:00 P.M. at which approximate time they were returned to the agent who delivered them, at his own request, and were handed personally to Commissioner Clarence M. Malley, who had personally left his home and come to the City Hall for the purpose of accepting nominating petitions in the absence of the clerk or his deputy; following which the said petitions were once more locked in the rear room for safekeeping.
As to the petition of Roy S. Parson: This petition was likewise addressed to the city clerk and left with the said Olson, and was likewise subsequently personally handed to the said Malley and was locked in the rear room for safekeeping.
As to the petition of George W. Krogman: This petition was likewise addressed to the city clerk and was personally handed to the said Malley in the city clerk's office at the city clerk's desk, following which this petition together with the other three petitions, was locked in the rear room for safekeeping.
These proceedings are the sequel to the city clerk's act pursuant to R.S. 40:75--44, N.J.S.A., which reads as follows:
On the representation made by the city clerk, this court signed an order sustaining the objections made by him. At that time also, as now, the court pointed out that two salient features of the statute dealing with the filing of nomination petitions focus attention, to wit: (1) time, (2) place. The first deals with April 3 and the second with 'the municipal clerk.' We have used the words 'city clerk' to mean the same person. The order signed was not predicated on failure in point of time, but on the place or with the person. Both points here, however, are raised again.
This is a proceeding in the nature of a prerogative writ for mandamus. At the hearing these facts, and others, were substantiated:
(a) The last day for filing petitions for nomination was April 3, 1952 (b) The office of the city clerk was regularly open for transaction of official business each week day (except Saturday) until 4:00 P.M.;
(c) The clerk's office was open for business all day April 3, 1952, until the regular closing hour;
(d) Plaintiffs did not attempt to file their nominating petitions until after 4:00 P.M. on April 3, 1952;
(e) Petitions of plaintiffs Furey and Ingersoll were left with Sergeant Clifford Olson of the police department, then on duty at City Hall (not at city clerk's office) at about 7:15 P.M. on April 3, 1952;
(f) Petition of plaintiff, Parson, was left with Sergeant Olson at about 10:20 P.M. on that day;
(g) Petition of plaintiff, Krogman, was handed to Clarence M. Malley, a member of the city commission, at City Hall at 10:30 P.M. of that day;
(h) Neither of plaintiff's petitions was given to the city clerk on that day; and
(i) None of the persons to whom said petitions were given on said April 3, 1952, were members of the city clerk's staff of office employees.
(j) All petitions in fact eventually reposed in the hands of Commissioner Malley who volunteered to receive them at the municipal clerk's desk before midnight April 3.
(k) Nomination petitions came into the possession of the municipal clerk at 9:25 A.M., or thereabouts, on April 4.
Nineteen persons, exclusive of counsel for plaintiffs, testified; of these were three of the aspirants to nomination. We shall not review in detail their testimony, but the force of this testimony reveals that on April 3, 1952, the municipal clerk left his office about 4:10 P.M.; that his assistant or deputy clerks left about 4:00 P.M. and the clerk's quarters were closed for the remainder of the day. It also developed that the clerk or his office had reason to believe that at least two persons contemplated filing for the office of commissioner (Krogman and Parson); that such intentions were communicated to the clerk before 4:00 P.M. Anyhow, the municipal clerk fixed the deadline time as four o'clock and the plaintiffs (petitioners) midnight. From three o'clock in the afternoon until an hour before midnight April 3, electors of Wildwood bestirred themselves to have their names, or to place in their behalf names, on the ballot for nominations. Of this activity the municipal clerk must have been cognizant and certain before he quit his office on that day. Telephone conversations, talks in the City Hall and elsewhere, convince us to this purport. The clerk, at any rate, left to attend a directors' meeting at his bank; one of his deputies (Amanda McVey) phoned her home that she didn't expect to return for dinner. These, as well as the assistant deputy clerk, left no word as to their whereabouts for the remaining hours of April 3. Although counsel for the municipal clerk insists that the 'activities of both the clerk and his deputy on that day were normal and not unusual,' we cannot conclude from all the surrounding circumstances, the importance of a municipal election in the offing, past experiences, newspaper publications and talk on the street, that he should dismiss his duty in a perfunctory way. The court concedes there were business hours, but sometimes duties must be performed at night, and one of these is standing by to accept petitions for nominations on the last or dead-line day for filing petitions for nominations.
Counsel for the municipal clerk raises three questions:
1. Does the statutory requirement that petitions 'shall be filed with the municipal clerk' contemplate filing with the clerk at his official office during usual business hours?
2. If not, may such petitions be handed to the city clerk after usual business hours on the last day for filing, wherever he may be found, so as to thus constitute a legal 'filing with the clerk'?
3. Assuming that filing may be accomplished after 4 P.M. of the last day, does the handing of petitions to an employe or officer of the municipality, other than the city clerk or a member of his official staff, constitute 'filing with the clerk'?
As in election matters generally we can find rules of action on both sides argued. We shall take up the municipal clerk's side of the question first. We quite agree with the attorneys on both sides of this question that but little law may be found in New Jersey. We have resort, however, to decisions in other states, to local custom and the general attitude in determining questions affecting franchise and procedure in elections. In the matter of commissioners the statute law, R.S. 40:75--16, N.J.S.A., reads as follows:
'No informalities in conducting a municipal election shall invalidate the same if conducted fairly and in substantial conformity with the requirements of law.'
To sustain the municipal clerk, his objections made and order entered thereon, he cites R.S. 40:75--3, N.J.S.A., emphasizing 'filed with the...
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