Kearns v. Edwards

• Citation: 28 A. 723
• Parties: KEARNS v. EDWARDS.
• Decision Date: 06 January 1894
• Court: United States State Supreme Court (New Jersey)

28 A. 723

KEARNS

v. EDWARDS.

Supreme Court of New Jersey.

Jan. 6, 1894.

Petition by William J. Kearns to contest the election of Thomas P. Edwards as member of the assembly, and for the issue to petitioner of a certificate of election. Certificate refused.

In the election of a member of assembly for the seventh district of Essex county, held on November 7, 1893, it appeared, by the return of the officers of election, that Thomas P. Edwards had received a majority of 24 votes over William J. Kearns. An application was made to Judge Depue for a recount, and affidavits were presented setting forth that he had good reason to believe, and did believe, that errors had been made in several boards of election, within the district, in counting the votes, whereby the result of the election had been changed, specifying, in detail, that a certain number of votes in certain precincts had been improperly rejected or counted. An order for a recount was made ex parte, with leave to apply to set it aside. Thomas P. Edwards appeared by attorney, and objected that the petition stated no facts upon which the petitioner based his belief, and showed no grounds for believing that any error had been made in counting the votes. He insisted that the order made upon such a petition was made upon no proofs or evidence, and that it was defective, in not setting out an adjudication by the justice that the petitioner had reason to believe that an error had been made. The petition was held to be sufficient, and the order sustained. A recount was directed to be made, under the supervision of Judge Child. The votes were counted, and testimony was taken, and it appeared that 15 ballots having the name "William J. Keares" printed upon them, instead of "William J. Kearns," had been rejected by the election officers, and about 50 others of the same kind had been accepted in other precincts. There were other ballots questioned for various reasons, but the case turned upon the rejection of the Keares ballots; and Mr. Kearns' counsel insisted that there had been merely a printer's error, which should be disregarded, and that the ballots should have been counted, and that if they had been it would have changed the result.

Samuel Kalisch, for petitioner.

Joseph L. Munn, for respondent.

DEPUE, J. I have the papers here, in the matter of the recount in the Kearns-Edwards contest. I commenced the examination of the ballots that were specifically objected to for several reasons applicable to the ballots themselves, but was very soon confronted with the consideration of the law under which this proceeding was had, and the extent to which a justice of the supreme court is authorized to enter upon an investigation of this kind, and soon concluded that the law would apply to those ballots on which the name "Keares" appears as well as to other ballots. The constitution provides, in the second paragraph of section 4, art 4, that each house shall be the judge of the election, qualification, and return of its own members. The constitution having conferred upon the legislative department the power to judge,— that is, judicially determine. —it would not be competent for the legislature to confer that authority on the judicial department of the government Nor does the act of 1880, under which this proceeding is had, purport to confer any such authority on a justice of a supreme court. The language of the act is as follows (P. L. 1880, p. 229): "That whenever any candidate at any election in this state for member of the senate or member of the assembly shall have reason to believe that an error has been made in any board of election or of canvassers in counting the vote or declaring the result of such election, whereby the result of such election has been changed, such candidate shall within ten days after such election, be empowered to apply to any justice of the supreme court of this state, who shall be authorized to order and cause a recount of such votes to be publicly made under the direction of the court, by the county clerk or such other officer as the said justice may designate, after due notice to the parties interested, of the time and place of such recount; and if it shall appear upon such recount of the ballots cast at such election, that an error has been made sufficient to change the result of such election, as declared by any board of canvassers, then such justice of the supreme court shall be authorized and empowered to revoke the certificate of election already issued to any person as member of the senate or member of the assembly, and shall order to be issued in its place another certificate, duly attested under the seal of the county, to the party who shall be found to have received a majority of the votes cast at such election, which latter certificate shall supersede all others, and entitle the holder thereof to the same rights and privileges as a member of the senate or member of the assembly, as if said certificate had been issued by the county board of canvassers." Now, the language of that act is...