In re Hess, 12.

• Decision Date: 19 May 1942
• Docket Number: No. 12.,12.
• Citation: 26 A.2d 277,128 N.J.L. 387
• Parties: In re HESS.
• Court: New Jersey Supreme Court

26 A.2d 277

128 N.J.L. 387

In re HESS.

No. 12.

Supreme Court of New Jersey.

May 19, 1942.

Appeal from Circuit Court, Somerset County.

Proceeding in the matter of the alleged election of Freas L. Hess, as member of the General Assembly for Somerset County, initiated by petition of Anthony P. Kcarns. From a judgment, 23 A.2d 298, 20 N.J.Misc. 12, dismissing the petition, the contestant appeals.

Affirmed.

January term, 1942, before BROGAN, C. J., and HEHER, J.

Anthony P. Kcarns, of Newark, pro se.

Arthur B. Smith, of Somerville, for incumbent-respondent.

BROGAN, Chief Justice.

This is an appeal from a judgment of the Circuit Court, Somerset County, in a contested election case. The matter was initiated in accordance with the provisions of the statute, N.J.S.A. 19:29-2, by the filing of a petition by Anthony P. Kearns, contestant, who prayed that he be declared elected to the office of member of the General Assembly for Somerset County in the place and stead of Freas L. Hess, who received a certificate of election from the Board of Canvassers of that county for the office in question. The petition rests on the proposition that the incumbent was not eligible to the office of Assemblyman at the time of the election. 19:29-1, subdiv. b. Petition was met by a motion to dismiss, advanced by the incumbent, Mr. Hess, which challenged the primary and fundamental legal contention of the petitioner. At the conclusion of the argument on the motion the Circuit Court Judge, Joseph L. Smith, dismissed the petition. Hence this appeal.

The contestant averred in the petition that Mr. Hess was certified as elected member of the General Assembly of the State of New Jersey when, as a matter of law, he was not eligible to hold the office. At the general election held November 4, 1941, Mr. Hess was the Assembly candidate on the Republican ticket and Mr. Kearns was his opponent on the Democratic ticket. The contestant supports his claim that the incumbent, as a matter of fundamental law, was and is ineligible to become a member of the Legislature on the ground that Mr. Hess, prior to and at the time of his election to the Legislature, was, and still remains, Mayor of the Borough of Somerville, and that as such Mayor he is judge of a court of record. The argument is that the two offices—that is, Mayor (when, as here, such officer has judicial powers) and member of the Assembly—are, by the Constitution of New Jersey, made incompatible as a matter of law when both are conferred upon one person. To show that as Mayor of Somerville the incumbent is invested with juridical prerogatives and powers, the contestant directs our attention to the statute, N.J.S.A. 40:87-31 to 40:87-45. These several statutory provisions impose certain duties upon Mayors of Boroughs and bestow upon them certain prerogatives and authority, judicial in character. The Mayor is obligated to see to it that the laws of the state and ordinances of the borough are faithfully executed; he may hear, try and determine, according to law, all actions which may be brought for the recovery of any penalty prescribed for the violation of any ordinance of the borough and try cases involving violation of ordinances (par. 32); jurisdiction is bestowed upon him in criminal matters (par. 33); he may hear and determine cases involving breach of the peace, disorderly conduct, etc. (par. 34); and the Mayor's court is a. court of record. The Mayor is also empowered to try jury cases of which small cause courts have jurisdiction (par. 40); he receives the same fees...