Goddard v. County Bd. of Elections of Monmouth County

• Court: New Jersey Superior Court — Appellate Division
• Citation: Goddard v. County Bd. of Elections of Monmouth County, 98 A.2d 688, 27 N.J.Super. 30 (N.J. Super. App. Div. 1953)
• Decision Date: 04 August 1953
• Docket Number: No. A--640,A--640
• Parties: GODDARD v. COUNTY BOARD OF ELECTIONS OF MONMOUTH COUNTY et al.

Page 30

27 N.J.Super. 30

98 A.2d 688

GODDARD v. COUNTY BOARD OF ELECTIONS OF MONMOUTH COUNTY et al.

No. A--640.

Superior Court of New Jersey, Appellate Division.

Argued July 27, 1953.

Decided Aug. 4, 1953.

Edward J. O'Mara, Jersey City, argued the cause for the plaintiff-appellant (Henry H. Patterson, Asbury Park, attorney).

William T. Wichmann, Red Bank, argued the cause for the defendant-respondent Gordon C. Kelly (Wise & Wise, Red Bank, attorneys).

John M. Pillsbury, Atlantic Highlands, argued the cause for the defendant-respondent County Board of Elections of Monmouth County (Roberts, Pillsbury & Carton, Atlantic Highlands, attorneys).

Before Judges CLAPP, STANTON and WOODS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

The plaintiff, E. Melvin Goddard, and the defendant, Gordon C. Kelly, were candidates for the Republican nomination for the office of member of the Township Committee of Ocean Township, Monmouth County. After the primary election Mr. Goddard was declared nominated, with a reported plurality of three votes, and Mr. Kelly applied for a recount under chapter 28 of Title 19 of the Revised Statutes, N.J.S.A.

On the recount the county board of elections held there was a tie between Mr. Goddard and Mr. Kelly, deciding all questions by a unanimous vote and thereby, under the statute, leaving no question to be passed upon by the county judge who had ordered the recount.

Mr. Goddard then brought before a Superior Court judge this proceeding under chapter 29 of Title 19, N.J.S.A., to contest the election, and motion was made on Mr. Kelly's behalf to dismiss the first count of the complaint on the ground that it is insufficient in law and fact. The judge granted the motion, and Mr. Goddard appeals.

It is urged upon us that the remedies given by chapters 28 and 29 of Title 19 are not both available in this matter. That is not so. R.S. 19:29--1, N.J.S.A., is dispositive of the point. Indeed, this section deals expressly with a tie, providing that 'in case of a tie vote as a result of the * * * recount, either party may contest the election.' Further, see R.S. 19:29--3, N.J.S.A., fixing the time for the institution of a chapter 29 proceeding in case of a recount; and Richardson v. Radics, 35 A.2d 425, 21 N.J.Misc. 466, 472 (Cir.Ct.1943), reversed on other grounds 131 N.J.L. 406, 37 A.2d 293 (Sup.Ct.1944).

The issues, which the complaint puts before the court here, are directed at four marked ballots. Those issues are cognizable in a chapter 28 proceeding, by virtue of the provisions of R.S. 19:16--4, as amended, N.J.S.A., and were in fact determined by the county board of elections here. However R.S. 19:29--1, N.J.S.A., also is broad enough in its terms to...