Michaels v. Johnson
| Decision Date | 08 November 1954 |
| Docket Number | No. A--95,A--95 |
| Citation | 33 N.J.Super. 77,109 A.2d 452 |
| Parties | Ernest W. MICHAELS and Charles B. Shore, Petitioners-Appellants, v. Raymond JOHNSON, County Clerk of Burlington County, Respondent. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
James M. Davis, Jr., Mount Holly, for petitioners-appellants (Powell & Davis, Mount Holly, attorneys).
Harold T. Parker, Mount Holly, for respondent (Parker, McCay & Criscuolo, Mount Holly, attorneys).
Before Judges EASTWOOD, GOLDMANN and SCHETTINO.
The opinion of the court was delivered by
EASTWOOD, S.J.A.D.
This appeal is concerned with a proceeding instituted under the provisions of N.J.S.A. 19:14--20 in the Law Division, seeking to compel the county clerk to reprint the official ballot for the General Election, 1954, for the use of the voters of Pemberton Township, Burlington County, so that two additional spaces be provided thereon for the voters to indicate their choice for two additional township committeemen.
The ballots as printed and mailed to the voters on Wednesday, October 27, 1954, provided spaces for only one committeeman to be elected. The names of the Republican and Democratic candidates and a space for personal choice, together with the legend 'vote for one' were printed in the respective spaces.
It is the contention of the petitioners that there should have been two additional spaces with their names printed thereon as independent candidates, and two additional spaces for 'personal choice,' one indicating that one candidate was to be elected for a two-year term and the other for a full term of three years.
On October 28, 1954, the Law Division dismissed the petition at the conclusion of the hearing and this appeal ensued. Because of the emergency, this court heard argument on the appeal on October 29, 1954
Because of appellants' inability to obtain a transcript of the testimony, the appeal was argued on the basis of the factual recitals of respective counsel, from which it did not appear that there were any substantial or material controverted facts.
The Township Committee of Pemberton Township, prior to June 1, 1954, consisted of three members, one of whom was seeking re-election. While the requisite proofs were not presented, it would appear by the official census records that the township had a population of 2,386 prior to 1950; that the 1950 census, which became official in 1952, disclosed that the population had increased to 4,751. Pursuant to the provisions of N.J.S.A. 40:146--2, when the population of a township passes from one below 4,500 to more than 4,500, the municipality becomes entitled to two additional township committee members, one for two years and the other for a term of three years, to be chosen at the next annual election after the effective date of the act, viz.: June 1, 1954. By virtue of certain acts of the Legislature (N.J.S.A. 40:11--17.3 and 40:11--17.4 and L.1954, c. 9), the right to the additional members was postponed to June 1, 1954.
At the hearing before the Law Division, the testimony disclosed that the petitioner, Ernest W. Michaels, filed nominating petitions as independent candidates for the alleged vacancies, with accompanying acceptances thereof, with the Township Clerk of Pemberton Township on September 23, 1953, in the presence of one J. Edwin Krecker, who accompanied him; that on September 21, 1954, prior to filing the petitions, the petitioner, Ernest W. Michaels, telephoned to the county clerk, and inquired as to where he should file the petitions; that the county clerk stated that they should be filed with the township clerk and, as stated, they were filed with the township clerk. The county clerk admitted talking with some man on the telephone on September 22--not the 21st--but denied that he suggested that the petitions be filed with the township clerk; that the man raised a question as to the two additional members of the Township Committee in Pemberton Township; that he told him that he had nothing before him dealing with the matter and that whatever the man was going to do ought to be done quaickly.
Mr. J. Edwin Krecker's testimony was generally in corroboration of Mr. Michaels' statements, adding that the township clerk said that he did not believe that the township committee would do anything about the vacancies but that he would retain the petitions and would probably notify the county clerk.
Mr. Michaels' testimony was corroborated by the other petitioner, Charles B. Shore, except that he did not go into the building with Mr. Michaels and Mr. Krecker when the petitions were presented to the township clerk, remaining on the outside.
The county clerk testified further that he had a conversation on September 29 with the petitioners' attorney, at which time he was asked if he would have to be mandamused to reprint the ballots so that the voters would have an opportunity to vote for two additional township committeemen; that he advised petitioners' attorney that he would require a court order directing him to do so.
The petitioners contend the trial judge erred (1) in refusing to order a correction of Pemberton Township ballots to provide for the election of three members of the township committee; and (2), in refusing to order that the petitioners' names be printed on the ballots as independent candidates for the office in question.
At the outset, the parties have treated the selection of two additional committee members as vacancies to be filled. The word 'vacancy' as used in the elections law would seem to indicate an office that has been vacated by reason of death, resignation or other termination, rather than newly created offices as yet unfilled. However, in view of the fact that the Legislature made no specific provision for the method to be pursued to select candidates whose names might appear on the ballots, we assume that in the absence of such legislation it was intended that the provisions of the Elections Law concerning vacancies should be made applicable. For that position, we find some support. For instance, in Black's Law Dictionary (4th ed.), 'vacancy' is defined as:
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