Gangemi v. Berry

• Decision Date: 09 July 1957
• Docket Number: No. A--143,A--143
• Citation: 25 N.J. 1,134 A.2d 1
• Parties: Thomas GANGEMI, Plaintiff-Appellant, v. Bernard J. BERRY et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 1

25 N.J. 1

134 A.2d 1

Thomas GANGEMI, Plaintiff-Appellant, v. Bernard J. BERRY et al., Defendants-Respondents.

No. A--143.

Supreme Court of New Jersey.

Argued June 20, 1957.

Decided June 24, 1957.

Opinion Delivered July 9, 1957.

Maurice C. Brigadier, Jersey City, argued the cause for appellant (Frank H. Itkin, Montclair, on the brief; Wolf & Baumann, Jersey City, attorneys).

Frederick J. Gassert, Newark, argued the cause for respondents, Edward J. Spinello, Alfred T. Davis, Helen Marshall and J. Beier Theurer, constituting the County Board of Elections, James A. Tumulty, Jr., City Clerk, and Edward J. Borrone, County Clerk (Samuel Miller and James H. Dowden, Jersey City, on the brief).

Francis X. Hayes, Jersey City, argued the cause for respondent Bernard J. Berry.

The opinion of the court was delivered by

HEHER, J.

The question at issue here is the constitutional sufficiency of the provisions of L.1953, c. 211, N.J.S.A. 19:57--1 et seq., styled the 'Absentee Voting Law (1953),' purporting to authorize civilian absentee voting at elections held in New Jersey.

May 14, 1957, there was an election in Jersey City to choose five members of the city commission, constituted the local governing body; 21 names appeared as candidates on the voting machines and also on the paper ballots prepared for the use of absentee voters pursuant to the cited statute. On the final count, candidate Berry received 57,561 votes and candidate Gangemi 57,405 votes, a difference of 156 votes, placing Berry fifth and Gangemi sixth according to the vote polled by the several candidates. But these totals included, not only the absentee military service ballots cast, but also the outcome of a canvass of 458 civilian absentee ballots polled by leave of the statute; of the latter Berry received 328 and Gangemi 74. This result was confirmed by a statutory recount; and a certificate of election was issued to Berry, who thereupon qualified and assumed charge of the office. It is conceded that Berry's 'plurality was produced by the civilian absentee votes'; and thus the decisive question is whether the statutory direction to that end is in contravention of the State's organic law.

By this proceeding in lieu of prerogative writ, the plaintiff Gangemi demands that the County Board of Elections be directed to 'review their canvass' and 'set aside all ballots of all civilian absentees whether cast in (his) favor' or 'in favor' of the incumbent Berry, and to certify his own election accordingly. Judge Proctor sustained the statute as a valid exercise of legislative power; and there was summary judgment for defendants. The plaintiff appealed to the Appellate Division; and on his motion we granted certification of the appeal.

Section 3 of the statute, N.J.S.A. 19:57--3, includes within the class entitled to vote by absentee ballot a 'civilian absentee voter who expects to be or may be absent outside the State or the United States on the day on which an election is held or who may be within the State on the day of any election but because of illness or physical disability will be unable to cast his ballot at the polling place in his election district on the day of the election, provided he is a registered voter, and is not otherwise disqualified by law from voting in such election.' A 'civilian absentee voter' is therein defined, section 2, N.J.S.A. 19:57--2, as 'any qualified and registered voter of the State who expects to be absent from the State on the day of any election and any qualified and registered voter who will be within the State on the day of any election but because of illness or physical disability will be unable to cast his ballot at the polling place in his election district on the day of the election.'

The contention is that this purposed exercise of the legislative function is in excess of the 'grant of power' contained in Article II, paragraph 4 of the 1947 State Constitution, and therefore void. This, in despite of the basic principle that, unlike the Federal Constitution, the State Constitution is not a grant but a limitation of powers. State v. Murzda, 116 N.J.L. 219, 183 A. 305 (E. & A.1936); Behnke v. New Jersey Highway Authority, 13 N.J. 14, 97 A.2d 647 (1953).

The particular provision of the Constitution is in these terms:

'4. In time of war no elector in the military service of the State or in the armed forces of the United States shall be deprived of his vote by reason of absence from his election district. The Legislature may provide for absentee voting by members of the armed forces of the United States in time of peace. The Legislature may provide the manner in which and the time and place at which such absent electors may vote, and for the return and canvass of their votes in the election district in which they respectively reside.'

It is said in argument that the polestar of constitutional construction is the 'framers' intention 'when they adopted this provision,' and reference is made to State v. Lyons, 1 Terry 77, 5 A.2d 495 (Del.Ct.Gen.Sess.1939), where it was found to be 'an inescapable fact that The direct question of absentee voting came before the (Constitutional) Convention and was intentionally eliminated in so far as citizens in actual military service were concerned,' and the 'inference is unmistakable that the Convention expressly refrained from providing for absentee voting, but left the Constitution as it theretofore had been'; also that in the 'Constitutional debates there are many statements indicating the clear understanding that the casting of a ballot was to be effected by the personal presence of the voter at the polls.' (Emphasis, counsel's.)

The cited case, it is said, exemplifies reliance upon the 'history' of the particular constitution to the 'exclusion of out-of-state decisions which were based on their respective state constitutions.' And recourse is had to the holding there that where the debates of the Constitutional Convention 'clearly point out the purpose of a particular provision of the Constitution,' the 'aid of such debates is valuable and satisfactory,' (citing Cooley's Const. Law 142; 11 Am.Jur. 706), 'especially * * * when the Constitution became effective, as in Delaware, upon its adoption by the Convention, and was not subject to subsequent ratification by vote of the people,' which, of course, is not the case in New Jersey. Of this, more hereafter.

Acknowledging the 'well-recognized distinction' between State and Federal Constitutions, as pointed out in State v. Murzda, supra, it is nevertheless insisted that here we are concerned with a constitutional grant rather than a limitation of power, and where 'granting as distinguished from Limiting provisions (are) involved, this rule, to which the Court below axiomatically adhered, (is) not properly applicable,' citing State v. Carrigan, 82 N.J.L. 225, 82 A. 524 (Sup.Ct.1912). And we are also cited to Robb v. City of Tacoma, 175 Wash. 580, 28 P.2d 327, 91 A.L.R. 1010 (Sup.Ct.1933), where a distinction was made between provisions of state constitutions in substance 'affirmative and permissive' and such as are 'negative and prohibitive.' We are told that the basic issue here 'fits within that distinction,' and, so tested, our constitutional provision 'grants power in positive language and does not limit by express negative terminology,' and so 'we cannot say that which was not limited still exists,' but rather that 'what was granted in the light of what was said by the framers and scriveners thereof excludes the idea that any other grant was intended.'

And here the maxim Expressio unius est exclusio alterius is invoked, citing Imbrie v. Marsh, 3 N.J. 578, 71 A.2d 352, 18 A.L.R.2d 241 (1950).

We seek for the sense and meaning of the particular constitutional provision, related to the context and the essential character of the instrument itself. The government of the United States is one of enumerated powers; and in its very nature the State Constitution is not a grant but a limitation of the exercise of the sovereign power inherent in the people, subject to the limitations imposed by the grant to the general government and, as well, those so fundamental in the social compact as to be necessarily implied. State v. Murzda, supra. By Article IV, section I, paragraph 1 of the 1947 State Constitution, the people vested full sovereign authority in the Legislature, save as otherwise therein provided. Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 88 A.2d 607 (1952). The theory of our political system is that the ultimate sovereignty is in the people, 'from whom springs all legitimate authority'; and (1) the legislative authority in the States consists of 'the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States,' and the legislative department 'is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion'; and (2) the apportionment to this department 'of legislative power does not sanction the exercise of executive or judicial functions, except in those cases, warranted by parliamentary usage, where they are incidental, necessary, or proper to the exercise of legislative authority, or where the constitution itself, in specific cases, may expressly permit it.' Cooley's Constitutional Limitations (8th ed.), 81, 175 et seq; 180, note.

'(The people), in framing the constitution, committed to the legislature the whole lawmaking power of the state, which they did not expressly or impliedly withhold. Plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is...