Sadloch v. Allan

• Decision Date: 14 October 1957
• Docket Number: No. A--11,A--11
• Citation: 25 N.J. 118,135 A.2d 173
• Parties: Emil J. SADLOCH, Plaintiff-Respondent, v. Alexander ALLAN, County Clerk of Bergen County, and Julius E. Kramer, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 118

25 N.J. 118

135 A.2d 173

Emil J. SADLOCH, Plaintiff-Respondent, v. Alexander ALLAN, County Clerk of Bergen County, and Julius E. Kramer, Defendants-Appellants.

No. A--11.

Supreme Court of New Jersey.

Argued Sept. 23, 1957.

Decided Sept. 30, 1957.

Opinion Delivered Oct. 14, 1957.

James A. Major, Hackensack, for plaintiff-respondent.

Julius E. Kramer, Hackensack, for defendants-appellants (Chandless, Weller & Kramer, Hackensack, attorneys.)

The opinion of the court was delivered by

FRANCIS, J.

The appeal in this election matter involves the legal propriety of a restraint issued by the Law Division of the Superior Court against the defendant Alexander Allan, County Clerk of Bergen County, and the defendant Julius E. Kramer. The judgment prohibits Allan from placing the name of Kramer as a candidate for the office of mayor of Garfield on the official ballot for the general election to be held in November 1957. It also enjoins Kramer from asserting that 'he is in fact a candidate' for that office. Review was sought in the Appellate Division, but we certified on our own motion.

The factual situation which gave rise to the controversy is not complicated. plaintiff Sadloch and defendant Kramer were rivals in the primary election of April 16, 1957 for the Republican party nomination for the office of mayor of Garfield. Sadloch won. Prior to primary day one Benti had filed a petition as an independent candidate for the office, so as to be eligible to compete in the November general election. N.J.S.A. 19:13--1 to 8. Shortly after Sadloch's victory, Benti withdrew his candidacy. Thereupon Kramer presented a petition apparently singed by the requisite number of qualified voters nominating him as the successor independent candidate for mayor, and applied to have his name printed on the official ballot for the November election. The county clerk announced that he had accepted the petition and would include the name on the ballot. Sadloch instituted this proceeding in lieu of prerogative writ to prevent such action.

Since the exhaustive and instructive opinions in Wene v. Meyner, 13 N.J. 185, 98 A.2d 573 (1953), and Stevenson v. Gilfert, 13 N.J. 496, 100 A.2d 490 (1953), there can be no doubt about the authority of the Legislature to adopt reasonable regulations for the conduct of primary and general elections. Such regulations, of course, may control the manner of preparation of the ballot, so long as they do not prevent a qualified elector from exercising his constitutional right to vote for any person he chooses. Rose v. Parker, 91 N.J.L. 84, 86, 102 A. 145 (Sup.Ct.1917).

The specific problem presented here calls for consideration of certain sections of the Election Law and their prohibitory effect, if any, upon the attempted independent candidacy at the ensuing general election of an individual who sought and was defeated at the polls in the primary for the nomination of his political party for the same office.

A candidate for elective office may be nominated to run as an independent candidate at the general election in November by a petition signed by the requisite number of qualified persons and filed 40 days before the primary is held. N.J.S.A. 19:13--1, 3, 5, 9. Or he may seek the nomination of the political party with which he is affiliated at the primary election. In this event, 40 days prior thereto he must file a petition signed by the specified number of qualified voters who are members of his political party. N.J.S.A. 19:23--5, 7, 14. The names of all such candidates are printed upon a public ballot to be used at the election, N.J.S.A. 19:23--24, 27, including of course, those persons who are vying for the party designation for a particular office.

Whichever path to nomination is chosen by a candidate, he must execute a formal acceptance which is annexed to the petition. N.J.S.A. 19:13--8. This subsection dealing with the primary nomination provides:

'No candidate so named shall sign such acceptance if he has signed an acceptance for the primary nomination or any other petition of nomination under this chapter for such office.'

And N.J.S.A. 19:13--4, which prescribes the form and contents of the petition, reiterates:

'No such petition shall undertake to nominate any candidate who has accepted the nomination for the primary for such position.'

Finally, as if to remove any conceivable question on the subject, N.J.S.A. 19:23--15, which controls the direct nomination procedure in the event that a vacancy occurs after the filing of the original petition but before the primary, says:

'No candidate who has accepted the nomination by a direct petition of nomination for the general election shall sign an acceptance to a petition of nomination for such office for the primary election.'

The effect of these enactments is to impose a choice upon an intending candidate. He cannot pursue a party nomination in the primary by means of the statutory petition, and at the same time by the same means declare as an independent aspirant for the same office at the general election. At least 40 days before the primary he must decide whether to enter the party primary or to bypass it for direct nomination as an independent in the November election. If he elects to put himself forward at the earlier plebiscite and is defeated for the party designation, he must abide by his deliberate choice.

Thereafter the official ballot for the general election is required to contain the names of the primary nominees of the various political parties and of those nominated by direct petition. And space must be allowed either in the paper ballot or on the voting machine so that a citizen may cast a vote for a candidate of his personal choice whose name is not listed. N.J.S.A. 19:14--1, 2, 8, 19:15--28.

These references to the pertinent sections of the Election Law make it plain that a candidate's name will appear on the printed ballot for the general election (1) if he participates in and is successful at the primary, or (2) if he foregoes the primary and accepts direct independent nomination by petition. If a vacancy occurs in either type of candidacy, a successor candidate may be substituted if he is selected in the manner prescribed and within the time limited. N.J.S.A. 19:13--16 to 19:13--21, inclusive. Manifest also is the legislative design to protect the integrity of the nominating process at primary elections and to withhold the privilege of inclusion on the ballot printed at public expense of the name of a person who assumes the cloak of an independent candidate after professing membership in a particular party, adherence to its general principles, and on that basis seeking the designation as a standard bearer of the party for elective office.

An excellent discussion of the subject appears in State ex rel. McCarthy v. Moore, 87 Minn. 308, 92 N.W. 4, 5, 59 L.R.A. 447 (Sup.Ct.1902). There the Supreme Court of Minnesota considered an attack on a section of the election law which specifically barred the printing on the ballot of the name of a defeated primary candidate who endeavored to run in the general election. In refusing to order the name to be printed, the court said:

'The right to vote and the right to hold office are declared to be co-ordinate. The methods by which these rights shall be protected and enforced are, of necessity, left to legislative action; but we shall readily assume that it is an inherent right of citizenship that only such a system of regulation be provided for as will be just and reasonable, and operate in its application to all voters and to candidates equally. That any system will accomplish absolute equality in all things must not and cannot be expected. * * * Of necessity, there must be upon such a ballot a regular order in which the names shall be placed, and other features incident to the procedure that tend to create incidental advantages to one candidate over another; but It would seem proper that any candidate who seeks the assistance of the primary election law * * * should be bound by the obligations of good faith and the dictates of fair play to which he has voluntarily subjected himself. It is said by this law to a candidate, 'If you prefer the advantages of a party nomination which is quite desirable, you may seek it; but if the state prepares and prints your ballot and regulates nominations so as to secure the utmost freedom of choice among the members of your party, it does so upon the submission by you to the condition that, If you are unsuccessful, it will not thereafter print your name upon the ballot to defeat your opponent;' and it should not be said * * * that it is an unreasonable condition, * * * and it cannot be said either that in this effort at regulation of political methods the unsuccessful aspirant for a party nomination is deprived of the right to run for office, or the majority of voters deprived of his services in office, if they desire to secure them; * * *. That it is more advantageous to the candidate to have his name printed on the ballot instead of requiring it to be written in is true, but in this case, under the prohibition of the statute to which he submitted, petitioner voluntarily denied himself that advantage. While he cannot have his name printed, because he has * * * surrendered that right, he is still eligible, and may aspire to the office, invite his fellow citizens to vote for him in the blank space provided for, and secure the office, if he can obtain the requisite support.'

And see Annotation, 143 A.L.R. 603, 605--613 (1943); cf. Ray v. Blair, 343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894 (1952).

The Election Law of our State has undergone many revisions. In 1915, a supplement to section 53 of the 1898 revision, L.1898, c. 139, dealt with the matter under discussion for the first time and employed language substantially the same as the Minnesota act. It said:

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