In re Hunt

• Decision Date: 06 April 1937
• Citation: 191 A. 437
• Parties: In re HUNT.
• Court: New Jersey Circuit Court

191 A. 437

In re HUNT.

Circuit Court of New Jersey, Cape May County.

April 6, 1937.

Petition in the matter of the contest of the alleged election of William C. Hunt to the office of State Senator for the County of Cape May.

Election set aside.

John A. Matthews, of Newark, Charles Herschenstein, Edward J. O'Mara, Aloysius McMahon, and Charles A. Rooney, all of Jersey City, and George R. Greis, of Ocean City, for petitioners. Andrew O. Wittreich, of Jersey City, Andrew J. Cafiero, of Wildwood, T. Millet Hand, of Cape May, William A. Stevens, of Red Bank, Howard Mackay, of Hackensack, Henry Young, Jr., of Newark, and Robert Carey, of Jersey City, for incumbent.

JAYNE, Circuit Judge.

If the election laws of this state do not accomplish all that may be fairly expected from them, the fault should not repose in the indifference of the courts.

At the general election on November 3, 1936, in the county of Cape May, William C. Hunt and Jesse D. Ludlam were candidates for the office of State Senator. The subsequent examination of the statements of the several district boards of the county enabled the Board of County Canvassers to determine that 8,767 votes were cast and counted for Hunt and that 8.330 votes were received for Ludlam. This is the election to which this proceeding relates.

It is not inappropriate to preface this opinion with some concise description of the dimensions which the proceeding has ultimately assumed and to also chronologize some of the principal events in its prosecution.

On November 9, 1936, the requisite bond having been approved by the Justice of the Supreme Court (Kuestner v. Boscarell, 136 A. 506, 5 N.J.Misc. 303), a petition was filed with the clerk of this court by 19 voters of the county to contest the election of William C. Hunt. P.L.1930, art. 26, p. 829. (Comp.St.Supp.1930, § 65—2601A et seq.) Amendments of the petition were permitted to be filed on December 3, 1936, and on December 5, 1936, to particularize the allegations of the original petition. Article 26, par. 359, § 5 (Comp.St.Supp.1930, § 65—2605A).

The hearing of this contest was undertaken on December 7, 1936, and was in progress until March 4, 1937. The arguments of counsel were heard on March 23, 1937. Two hundred eighty-six witnesses have been interrogated. Canvass books, registry books, poll books, returns, certificates, affidavits, and numerous other exhibits, 225 in all, have been admitted in evidence. The transcript of the stenographic notes of this proceeding occupies eleven volumes. It is reasonable to assume that never again in many years will a proceeding, encompassing such widespread interests and political consequences, enter our courts, yet it has been possible to conduct this proceeding in an orderly, dispassionate, and deliberate manner and in a patient, temperate, and sincere effort to discover the facts. Counsel were forewarned that the decision would be erected upon the merits to be harvested from the law and the evidence and not upon the admixture of any other elements not required to form a conscientious and just determination.

It is time now to turn to the controversial issues of law.

The question of jurisdiction lies at the threshold of this proceeding and its solution should therefore be accorded primary consideration.

It is asserted in behalf of the incumbent that the circuit court lacks jurisdiction to hear a contest relating to the election of a member of the Legislature. The fabric of the argument consists of the contentions that the Constitution of our state has expressly conferred this power exclusively upon the legislative department and if so, that the Legislature cannot constitutionally bestow any such authority upon the judicial department of the government.

Of course, it is to be at once acknowledged that our State Constitution in the second paragraph of section 4, article 4, declares that "Each house shall be the judge of the elections, returns and qualifications of its own members." A like provision relating to the organization of legislative bodies may be commonly discovered in constitutions. Indeed, our first Constitution of New Jersey adopted July 2, 1776, provided that the General Assembly and the Legislative Counsel were respectively to be the judge of the "qualifications and election" of their own members (art. 5). Similar provision relating to the determination of the qualifications and elections of members of the Congress is found in article 1, § 5, of the Federal Constitution. The exercise of the power thus expressly accorded was not a new-fashioned practice in legislative assemblages at the time of the adoption of our Constitutions. The Houses of the English Parliament long reserved and employed such a power.

Our Constitution of 1844 was submitted to the vote of the people. It derives its vitality from the public will and it is the fundamental law of the state until supplanted either by a new constitution or by amendment in the manner therein provided. The power to judge the elections, returns, and qualifications of its own members reposes, under the Constitution, in the Senate itself. Let it be immediately understood that this court has no inordinate and covetous inclination to arrogate an unquestionable prerogative of the State Senate.

But what is comprehended by the power to judge, thus conferred upon the Senate? It is the exclusive power to finally judicially determine the election of a member of the Senate. Kearns v. Edwards (N.J.Sup.) 28 A. 723, 724; Id., 17 N.J.L.J. 51; Ruh v. Frambach, 47 N.J.Law, 85; Van Winkle v. Caffrey, 175 A. 362, 363, 12 N.J.Misc. 834.

Additionally counsel for the incumbent invite attention to the prohibitive clause embodied in article 3 of our Constitution. It may be quoted: "And no person or persons belonging to, or constituting one of these departments, shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided." At the moment, it need only be observed that the force of this clause is, not to confine the Legislature to powers which are legislative, the Governor to powers which are executive and the courts to powers which are judicial, but merely to forbid each department to encroach upon the powers properly belonging to another. Ross v. Freeholders of Essex County, 69 N.J.Law, 291, 294, 55 A. 310.

In Paul v. Gloucester County, 50 N.J. Law, 585, 610, 15 A. 272, 284, 1 L.R.A. 86, Mr. Justice Van Syckel, speaking for the Court of Errors and Appeals, said: "This constitutional clause relates only to those powers which by the constitution itself are assigned to, or which in their nature pertain to, one of the three departments exclusively. * * * But there is a multitude of governmental duties which have never been and cannot possibly be performed, either by the legislature or by the governor, and which are certainly not prescribed by the constitution to the judiciary. * * * The conclusion is inevitable that this multitude of duties was regarded as lying outside of what were termed the powers properly belonging to the executive, legislative, and judicial departments, and was left by the constitution to be discharged in such mode as the law should provide."

It is apparent that, except for the divergencies previously mentioned, the argument of counsel for the incumbent and the views of this court are not, up to this point, discordant.

Moreover, the insistence that the Legislature cannot constitutionally convey to the judicial department the power to finally judicially determine the qualifications and elections of its own members is firmly tenable and beyond the domain of reasonable debate. Kearns v. Edwards, supra; Van Winkle v. Caffrey, supra.

It transpires that the contention of counsel for the incumbent is constructed upon a fundamental fact which has been erroneously assumed. It is essential to completely comprehend the power or so-called jurisdiction which this court is in fact exercising. Assuredly the court has no common-law jurisdiction over the subject-matter of this contest. The proceeding is purely a statutory device designed to effectuate a purpose readily perceivable.

The power which this court assumes to exercise, or, more accurately stated, the duty which this court is undertaking to discharge, springs from the statute. P.L.1930, art. 26, c. 187, p. 829 (Comp.St.Supp.1930, §§ 65—2601A). This enactment provides that "The nomination or election of any person to any public office or party position, or the approval of any public proposition, may be contested" upon one or more of the grounds therein specifically stated and that, except a contest relating to an office or proposition voted for by the voters of more than one county or of the entire state, the contests shall be heard and determined by the several circuit courts of this state. The procedural instructions are also prescribed.

Nevertheless, some doubt is expressed concerning the intention of the Legislature to authorize and require the circuit courts to hear contests relating to the election of members of the Legislature. Article 26 (CompSt.Supp.1930, § 65—2601A et seq.) provides that "the * * * election of any person to any public office" may be contested upon the grounds and in the manner therein expressed. In the present statute, "public office" is defined as any office in the government of this state or any of its political subdivisions now or hereafter filed at elections by the electors of such state or political subdivision. Paragraph 1, § 1 (h) (Comp.St.Supp.1930, § 65—101A subd. (h). The language of article 26 thus employed is not equivocal and its import is not dubious. If any rational doubt exists concerning the intention of the Legislature to include within the operation of article 26 the elections of members of the Legislature, it requires no elaborate research to dissolve it. Among the statutory ancestors of our present election law are the revisions of 1876, 1898, and 1920. Other statute...