Lawson v. Davis

• Decision Date: 21 October 1971
• Citation: Lawson v. Davis, 282 A.2d 784, 116 N.J.Super. 487 (N.J. Super. App. Div. 1971)
• Parties: James LAWSON, Plaintiff-Appellant, v. Stanley A. DAVIS, Clerk of Elections for the County of Monmouth, and William A. Ralph, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 487

116 N.J.Super. 487

282 A.2d 784

James LAWSON, Plaintiff-Appellant, v.Stanley A. DAVIS, Clerk of Elections for the County of Monmouth, and William A. Ralph, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Oct. 18, 1971.

Decided Oct. 18, 1971.

Opinion Filed Oct. 21, 1971.

Alexander D. Lehrer, for appellant(Anschelewitz, Barr, Ansell & Bonello, Asbury Park, attorneys).

Benedict R. Nicosia, Red Bank, for respondentWilliam A. Ralph(Doremus, Russell, Fasano & Nicosia, Red Bank, attorneys).

Before Judges CONFORD, MATTHEWS and FRITZ.

PER CURIAM.

Plaintiff, a citizen of Keyport, challenges the validity of a petition for the direct nomination of William A. Ralph as an Independent Party candidate for mayor of Keyport at the forthcoming general election.The Law Division judge held the petition valid and refused plaintiff's demand for the removal of the candidate's name from the ballot.

The petition contained 270 purported signatures, as against a legal minimum requirement of 49.It was established at the hearing that some 32 of the signatures were of persons not registered voters, or were not genuine or were otherwise questionable, leaving some 238 unquestionably qualified signatures.

The gravamen of plaintiff's position is that there was a violation of the requirement of N.J.S.A. 19:13--7 that at least five of the signatories on a nominating petition make an affidavit that they saw all the signatures made thereto and believe the signers to be qualified voters.The argument is that this failure voids the petition and renders it of no effect whatever.

Both sides concede that the requisite number of affiants, as a result of the recent decision in In re Smith v. Hayes, 59 N.J. 236, 281 A.2d 276(1971), is one, not five.The petition contained 15 sheets with varying numbers of signatures on each.Plaintiff argues that the proofs show that the original affidavit on the petition, purporting to contain the oath of five signers that they saw all 270 persons sign, is untrue.This is a justified assertion on this record.After the making of the order to show cause respondent Ralph sought to remedy this defect by producing a corrective affidavit by 16 signatories to the effect that all of them saw all 270 sign.We doubt that any of the signatures literally intended to be making such an oath.In any event, the proofs demonstrate and respondent concedes that this affidavit is also not literally true.

Indeed, on the basis of the proofs, it is impossible to say with assurance that any particular signatory witnessed the signatures of any particular group of others.We believe the statute, properly construed (giving effect also to In re Smith, supra) means that each petition (or sheet if separately circulated) should contain an affidavit or affidavits clearly signifying which signatory has witnessed what signatures of any of the others, and that every signature should be specifically verified by the affidavit of at least one of the other signers who witnessed it.SeeIn re Petition of Job111 N.J.Super. 170, 268 A.2d 29(App.Div.1970), certif. den.57 N.J. 124, 270 A.2d 27(1970).

However, we do not find the intent or purpose of the candidate or the carriers of the petition (or sheets) in this situation to have been fraudulent, as was the case in McCaskey v. Kirchoff, 56 N.J.Super. 178, 152 A.2d 140(App.Div.1959).True, the...