Kilmurray v. Gilfert

• Decision Date: 20 October 1952
• Docket Number: No. A--32,A--32
• Citation: 10 N.J. 435,91 A.2d 865
• Parties: KILMURRAY et al. v. GILFERT et al.
• Court: New Jersey Supreme Court

Page 435

10 N.J. 435

91 A.2d 865

KILMURRAY et al. v.GILFERT et al.

No. A--32.

Supreme Court of New Jersey.

Argued Oct. 20, 1952.

Decided Oct. 20, 1952.

Morris Chesler, Jersey City, argued the cause for the appellants.

Frederick J. Gassert, County Atty., Newark, argued the cause for the respondentWilliam H. Gilfert(Daniel T. O'Regan, County Counsel, Jersey City).

John B. Graf, Jersey City, argued the cause for the respondentsHudson County Democratic Committee and William L Johnston(Robert H. Doherty and Charles M. Egan, Jersey City, attorneys for William L. Johnston).

The opinion of the court was delivered by

VANDERBILT, C.J.

James F. Murray, Sr. was nominated as the candidate of the Democratic Party in Hudson County for the office of register of deeds and mortgages at the primary election on April 15, 1952.He died on Monday, September 29, 1952.The next day the Hudson County Democratic Committee selected William L. Johnston as the candidate of the Democratic Party to fill the vacancy and filed a statement of its selection with the county clerk.

On October 1, 1952, the plaintiff Kilmurray, the Republican nominee for the office, and the plaintiff Kijewski, an independent candidate therefor, instituted a proceeding in lieu of prerogative writ to review the action of the county clerk in accepting the statement certifying the name of Johnston, and to restrain the county clerk and the county superintendent of elections from taking any steps to present the name of Johnston to the electorate.Both plaintiffs and defendants moved for summary judgment as a matter of law, and on October 7 judgment was entered in favor of the defendants.Appeal was promptly taken to the Appellate Division of the Superior Court, which on October 15 affirmed the judgment below, one judge dissenting, whereupon this appeal was taken as of right on October 16.Because of the public importance and urgency of the matter we set it down specially for argument on October 20.

The primary issue before us on this appeal is the interpretation of R.S. 19:13--20, N.J.S.A., and its application to the facts of the case, and at the oral argument counsel confined themselves to this point.R.S. 19:13--20, N.J.S.A., provides:

'In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than thirty-seven days before the general election, * * * a candidate shall be selected in the following manner: * * * in case of an office to be filled by the voters of an entire county * * * the candidate shall be selected by the county committee of such political party within the county.* * * The selection shall be made no later than thirty-four days prior to the general election, and a statement of the selection shall be filed as follows: * * * the county committee or subdivision thereof with the county clerk.Such statement shall not be filed later than thirty-four days prior to the general election. * * *'

It is manifest that the vacancy occasioned by Murray's death did not occur 'not later than thirty-seven days before the general election.'Only 35 full days intervened between his death on September 29 and the general election set for November 4, but in the law the traditional method of computing time, in the absence of a clear direction otherwise, is to include the first fractional day and to exclude the last fractional day.Barron v. Green, 13 N.J.Super. 483, 80 A.2d 586(Law Div.1951) and cases therein cited at 486 et seq.Thus, in legal contemplation and within the meaning of R.S. 19:13--20, N.J.S.A., Murray died 36 days before the general election.

Since the vacancy occurred later than 37 days before the general election, the plaintiffs contend that under the statute the county committee had no jurisdiction to select a new candidate, that its action in so doing was a nullity, and that the acceptance for filing by the county clerk of its statement of selection was illegal.We do not so interpret R.S. 19:13--20, N.J.S.A.

The statutory scheme for filling vacancies among nominees for election to a county office at a general election is outlined in R.S. 19:13--19, N.J.S.A., and R.S. 19:13--20, N.J.S.A.If a vacancy occurs among candidates nominated by direct petition, R.S. 19:13--19, N.J.S.A., provides that his successor shall likewise be nominated by direct petition and that the petition of nomination must be filed with the county clerk not later than 34 days before the day of election.If a vacancy occurs among candidates nominated at a primary election, R.S. 19:13--20, N.J.S.A., provides that his successor shall be selected by the county committee of the party in whose slate the vacancy occurs and that the statement of its selection be filed with the county clerk not later than 34 days before the election.The obvious intent of the Legislature in thus requiring that all vacancies be filled 34 days before the general election is to afford...