Lippincott v. Felton
| Citation | 39 A. 646,61 N.J.L. 291 |
| Decision Date | 15 February 1898 |
| Court | New Jersey Supreme Court |
| Parties | FREEDOM C. LIPPINCOTT v. GEORGE G. FELTON |
(Syllabus by the Court.)
Appeal from circuit court, Camden county; Richard T. Miller, Judge.
Petition by Freedom C. Lippincott against George G. Felton to contest an election.From a judgment dismissing his petition, contestant appeals.Affirmed.
Argued at November term, 1897, before MAGIE, C. J., and DEPUE, GUMMERE, and LUDLOW, JJ.
Lindley M. Garrison and William J. Kraft, for appellant.
Henry M. Snyder and Frederich A. Rex, for respondent.
This is an appeal from the determination of the Camden circuit in a proceeding contesting an election, under the provisions contained in the election law, and found in section 100 and the following sections, 2 Gen. St. 1313.Four errors in law are claimed by the petition to have occurred in the course of the trial, which resulted in the dismissal of the petition of appellant, who was the contestant.
It is first claimed that the circuit court should have found in favor of appellant upon his petition, and, without going into evidence, upon the ground that the incumbent had filed no answer, and had not denied the charges contained in the petition.But the circuit court in these proceedings is merely a part of the electoral machinery.Conger v. Convery, 52 N. J. Law, 417, 20 Atl. 166;Id., 53 N. J. Law, 658, 24 Atl. 1002.The act invests it with jurisdiction of a limited character, upon the filing of a petition of the sort prescribed.It does not require the incumbent to file an answer.Doubtless he could do so, but, in the absence of any requirement to that effect, his failure to do so cannot be treated as a default which would entitle contestant to judgment.The contestant must establish the charges of his petition by evidence before the court can make a determination in his favor.
It is next contended that the circuit court erred in refusing to determine, preliminarily, whether or not there was a vacancy in the office in respect to which the contest is made.It has been settled by the case before cited that the power conferred on the circuit court is limited to a determination, not conclusive, of the result of an election.No power to determine whether a vacancy exists has been expressly conferred, and, if such power could be conferred by implication, it would inhere in the boards of canvassers upon the same argument which is here urged.It is incredible that the legislature should have intended to invest the officials charged with the determination of the results of an election with the power to determine whether or not such an election was required by law.
It is further urged that there was error in determining that 17 ballots cast in the First precinct of the Ninth ward, and which contained contestant's name for the office which he seeks, were properly rejected by the election officers, and in refusing to count those ballots for contestants.The rejected ballots contained an official indorsement indicating that they were prepared for another precinct of the same ward.By the provisions of section 33 of the ballot reform law of 1890, each ballot was required to have printed upon its back the words, "Official ballot for ——," and after the word "for" should follow the designation of the election district or voting precinct for which the ballots were prepared.That section, as finally amended in 1893(2 Gen. St. 1360), provides that, if an assemblyman is to be chosen at the election, the word "for" shall be followed by the designation of the assembly district, but, if no assemblyman is to be chosen, it shall be followed by the designation of the "township, municipality, ward, or other subdivision" for which the ballot is prepared.This alteration of the terms of the section, as originally passed, first occurred in an amendment passed in 1891, and led Mr. Justice Depue, sitting in the Essex circuit, in a contestant election case, to express a doubt whether the...
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... ... 140; Dunagan v. Town of Red Rock, ... 58 Okla. 218, 158 P. 1170; Skain v. Milward, 138 Ky ... 200, 127 P. 773; Lippencott v. Felton, 61 N.J.L ... 291, 39 A. 646; Tazwell v. Davis, 64 Ore. 325, 130 P. 400.) ... "Where ... certain ballots voted by alleged illiterate ... ...
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