Petition of Keogh-Dwyer

• Decision Date: 28 June 1965
• Docket Number: KEOGH-DWYER,No. A--103,A--103
• Citation: Petition of Keogh-Dwyer, 211 A.2d 778, 45 N.J. 117 (N.J. 1965)
• Parties: Petition of Walter C., a candidate for the office of Member of the Vernon Township Committee to contest certain errors made in the Canvass or Count of Votes in the General Election of November 15th, 1963.
• Court: New Jersey Supreme Court

Page 117

45 N.J. 117

211 A.2d 778

Petition of Walter C. KEOGH-DWYER, a candidate for the

office of Member of the Vernon Township Committee to contest

certain errors made in the Canvass or Count of Votes in the

General Election of November 15th, 1963.

No. A--103.

Supreme Court of New Jersey.

Argued April 13, 1965.

Decided June 28, 1965.

Frank A. Dolan, Newton, for appellant, Walter C. Keogh-Dwyer.

Donald L. Kovach, Franklin, for respondent, everett C. Martin(Honig & Kovach, Franklin, attorneys).

The opinion of the court was delivered

PER CURIAM.

This case involves the November 1963 election for the office of member of the Vernon Township Committee.The trial court in an unreported opinion held the election a tie, Walter C. Keoph-Dwyer and Everett C. Martin each receiving 372 votes, and set the election aside.On appeal, the Appellate Division, one judge dissenting, held that Martin had been duly elected after determining that he had received 371 votes and Keogh-Dwyer 370 votes.In re Keogh-Dwyer, 85 N.J.Super. 188, 204 A.2d 351(App.Div.1964).Keogh-Dwyer appealed to this Court as of right.R.R. 1:2--1(b).

The only point of disagreement between the majority and dissenting opinions in the Appellate Division was whether the designation of a personal choice (commonly called a write-in vote) on a paper ballot is valid where that designation does not include a cross ( ), plus ( ) or check ( ) in the square to the left of the name written or pasted in.

Martin was the Republican candidate.Amos Phillips was the Democrat candidate.Their names were printed on the paper ballot under their respective party's columns.Keogh-Dwyer, who had been defeated by Martin in the Republican Primary, was a write-in candidate.Fourteen voters wrote or pasted in Keogh-Dwyer's name in the personal choice column but failed to put a proper mark in the square to the left of the name.Both the trial court and the majority in the Appellate Division therefore concluded that these ballots could not be counted for Keogh-Dwyer.They held that under the pertinent election laws and In re Lavallette, 9 N.J.Misc. 25, 152 A. 641(Sup.Ct.1930), it is mandatory that a voter not only write or paste in his personal choice but also put an adequate mark in the square to the left of the name.The dissent in the Appellate Division concluded that the statutory requirement of a mark next to a write-in candidate's name was directory, not mandatory and that In re Lavallette, supra, should be overruled.

We agree with the trial judge and the majority in the Appellate Division for the reasons stated by the majority opinion.85 N.J.Super., at pp. 200--201, 204 A.2d 351.We note that the election laws were generally revised in 1930. L.1930, c. 187.Later that year the Supreme Court in In re Lavallette, supra, in construing the election laws held that if a voter writes the name of a candidate in the personal choice column but fails to make a proper mark in the box to the left thereof, his vote cannot be counted.The election laws have been amended several times since 1930 but no substantial change ¹ has been made in the pertinent requirements of the statutes since In re Lavallette, supra.In construing a statute it is to be assumed that the Legislature is thoroughly conversant with its own legislation and the judicial construction placed thereon.Barringer v. Miele, 6 N.J. 139, 144, 77 A.2d 895(1951).And the construction of a statute by the courts, supported by long acquiescence on the part of the Legislature or by continued use of the same language or failure to amend the statute, is evidence that such construction is in accord with the legislative intent.Egan v. Erie R. Co., 29 N.J. 243, 250, 148 A.2d 830(1959);Barringer v. Miele, supra.We think these rules of statutory construction are particularly applicable to the election laws, a subject matter with which the Legislature is intimately concerned.Therefore, we conclude it is ...