In Re Ray.

• Decision Date: 26 December 1947
• Parties: In re RAY.
• Court: New Jersey Circuit Court

56 A.2d 761

In re RAY.

Circuit Court of New Jersey, Gloucester County.

Dec. 26, 1947.

Proceeding in the matter of the contest of the election of George R. Ray to Borough Council of the Borough of Paulsboro, Gloucester County, N. J.

Judgment in accordance with opinion.

William B. Kramer, of Woodbury, for petitioners.

James B. Avis and R. Edward Klaisz, Jr., both of Woodbury, for incumbent George R. Ray.

PROCTOR, Circuit Judge.

Eighteen residents and legal voters of the Borough of Paulsboro, County of Gloucester, filed a petition in this court praying that the election of George R. Ray to the Borough Council of the Borough of Paulsboro be annulled and that ‘* * * George L. Brown, the candidate receiving the next highest number of votes, be declared elected and a Certificate of Election be issued to him; or that the said office of Borough Councilman of the Borough of Paulsboro be declared to be vacant.’

The petition alleges that at the time of the election George R. Ray was not eligible to fill the office of Borough Councilman of the Borough of Paulsboro, because he was not a registered voter and that the ‘said George R. Ray was ineligible to run for said office because his acceptance of the nomination was false and defective in that in contained a statement by the said George R. Ray that he was a legal voter.’

The petition is filed pursuant to R.S. 19:29-1, subds. b, i, N.J.S.A

At the hearing it appeared that George R. Ray was a citizen of the United States and has been a resident of the Borough of Paulsboro for a period of thirty years. It further appeared that George R. Ray was not registered to vote in the Borough of Paulsboro at the time he accepted the nomination to run for the office of Borough Councilman in said borough, nor was he registered on June 9, 1947, the date of the primary election, nor was he registered on November 4, 1947, the date of the general election; he did become a registered voter on December 6, 1947, when he appeared at the office of the County Board of Elections and registered.

The incumbent Ray's eligibility to the office of Borough Council is to be determined as of the date he was elected and not at a subsequent date. R.S. 19:29-1, subd. b, N.J.S.A.; Chandler v. Wartman, 6 N.J.L.J. 301. Therefore, the problem for determination is: Was Ray qualified to hold the office of Borough Councilman on November 4th, 1947, the date of the election?

R.S. 19:23-15, N.J.S.A. provides, ‘Accompanying the petition (endorsing a candidate) and attached thereto each person endorsed thereon shall file a certificate, stating that he is qualified for the office mentioned in the petition; that he consents to stand as a candidate for nomination at the ensuing primary election, and that if nominated, he agrees to accept the nomination. Such acceptance shall certify that the candidate is a resident of and a legal voter in the jurisdiction of the office for which the nomination is to be made * * *.’ (Italics supplied.)

In accepting the endorsement to stand for nomination for the office of Borough Councilman, Ray signed a certificate which included the statement: ‘I am a resident of and a legal voter in the jurisdiction of the office for which the nomination is to be made;’

Article 2, Paragraph 1 of the State Constitution, N.J.S.A., declares: ‘Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that now are, or hereafter may be elective by the people; * * *.’

R.S. 40:11-1, N.J.S.A., provides, ‘* * * every person holding an office, the authority and duties of which relate to a municipality, shall reside within the municipality.’

It is fundamental that the right to hold public office is restricted to those who are qualified voters under the constitution. Chandler v. Wartman, supra. This principle was further declared by the legislature, subsequent to the adoption of the Nineteenth Amendment, in enacting R.S. 10:1-1, N.J.S.A., which provides, ‘The right of citizens of this State to hold office or employment shall be coextensive with their right to vote, * * * .’

It will be seen from the undisputed facts that the incumbent Ray conforms with the constitutional, New Jersey Constitution, Article 2, Paragraph 1, and the statutory residential, R.S. 40:11-1, N.J.S.A., qualifications to hold to office of Borough Councilman.

R.S. 19:31-1.1, N.J.S.A., provides, ‘after July first, one thousand nine hundred and forty-three, no person shall be permitted to vote at any election in any municipality of this state unless such person shall be permanently registered.’

Petitioners contend that to be a legal voter within the meaning of R.S. 19:23-15, N.J.S.A., one must not only have the qualifications of a voter as set forth in the State Constitution, but must further be permanently registered in accordance with R.S. 19:31-1.1, N.J.S.A. The incumbent Ray contends that registration is not required to make one a legal voter within the meaning of R.S. 19:23-15, N.J.S.A.

The right to hold office is a valuable one and its exercise should not be declared prohibited or curtailed except by plain provisions of the law. ‘* * * Statutes imposing disqualifications are to be construed strictly, while those declaring qualifications are to receive a liberal construction. In consequence, ambiguities are to be resolved in favor of eligibility to office.’ 42 American Juris Prudence, 908. The legislature cannot impose any qualification as to the right to vote in addition to or contrary to the constitutional provisions. Allison v. Blake, 57 N.J.L. 6, 29 A. 417, 25 L.R.A. 480. However, it may impose conditions in respect to the exercise of that right as part of the machinery for voting.

The purpose of requiring voters to register permanently is to protect the purity of the ballot box, by ascertaining before the vote is cast whether or not such persons possess the qualifications to vote and by preventing impersonations thereafter at the polls. In re Faith, 39 A.2d 638, 22 N.J.Misc. 412; In re Freeholders of Hudson County, 105 N.J.L. 57, 143 A. 536.

In Ransom v. Black, 54 N.J.L. 446 at page 461, 24 A. 489, 1021, 16 L.R.A. 769, Mr. Justice Dixon, whose opinion was affirmed by the Court of Errors and Appeals in 65 N.J.L. 688, 51 A. 1109, said:

‘It must be conceded that legislation is necessary to determine who are legal voters, to provide for them the means of voting, to prevent all others from voting, and to ascertain the result of the vote. All legislation conducive to these ends is therefore permissible. It is also clear that by a vote is intended the free and honest expression of the voter's choice, and hence statutes tending to preserve the voter from coercion or immoral influences are legitimate, provided they do not impair other rights. Outside of these purposes I see no room for legislative interference with the right of suffrage.’

Mr. Justice Kalisch, in upholding the constitutionality of the election law relating to registration, said in the case of In re Freeholders of Hudson County, supra [105 N.J.L. 57, 143 A. 538]:

‘A qualified constitutional voter is entitled that his or her vote shall have the effect which the law intended it shall have, and this would not be the case, unless the ballot box is strictly guarded against illegal voting.

‘From an examination of the election law relating to registration, it is difficult to perceive how a duly qualified voter is deprived from voting in any case where he has complied with the regulations prescribed by the legislature concerning the exercise of that right. Of course, if a qualified voter, under the constitution, neglects to obey the prescribed legislative requirements necessary to qualify him as a voter, he has no one to blame but himself, if he loses his right to vote. It is his own act which deprives him from exercising the voting privilege. It is quite clear from the decisions of the courts of this state that, though an individual falls within the class of those entitled to vote by virtue of the constitutional declaration, nevertheless the manner in which and how he shall become entitled to exercise the right extended to him or her is left to the sound discretion and wisdom of the...