Schweitzer v. Buser

• Decision Date: 19 December 1936
• Citation: Schweitzer v. Buser, 15 N.J.Misc. 217, 190 A. 89 (N.J. Cir. Ct. 1936)
• Court: New Jersey Circuit Court
• Parties: CHARLES SCHWEITZER, CONTESTANT, v. SAMUEL BUSER, Sr., INCUMBENT-DEFENDANT. IN THE MATTER OF THE CONTEST OF THE ELECTION OF SAMUEL BUSER, Sr., AS COUNCILMAN OF THE BOROUGH OF NORTH HALEDON, IN THE COUNTY OF PASSAIC

190 A. 89

SCHWEITZER

v. BUSER.

Circuit Court of New Jersey, Passaic County.

Dec. 19, 1936.

Proceeding in the matter of the contest of the election of Samuel Buser, Sr., as councilman of the Borough of North Haledon in the county of Passaic, wherein Charles Schweitzer contested votes of Federal Works Progress Administration workers.

Votes held illegal.

William Sheps and Samuel Raff, both of Paterson, for contestant.

Archibald Kreiger, of Paterson, for incumbent-defendant.

WOLBER, Circuit Court Judge.

The contestant, Charles Schweitzer, on November 16, 1936, filed his petition with the clerk of the Passaic County Circuit Court which alleged, among other things, that he was on November 3, 1936, eligible for election to the office of councilman of the Borough of North Haledon; that an election for councilman was held in said borough on said November 3, 1936; and that at said election he received the largest number of votes cast for said office of councilman and was duly elected, and should be declared elected thereto; that the Board of Canvassers of the County of Passaic declared election as follows: Charles Schweitzer, 534 votes; Samuel Buser, Sr., 609 votes; and declared the said Samuel Buser, Sr., duly elected to said office; that said Samuel Buser, Sr., received the certificate of election from said Board of Canvassers and is about to take possession of said office and exercise the functions and receive the emoluments thereof.

Said Charles Schweitzer contests the said alleged election of Samuel Buser, Sr., upon the ground that illegal votes were received and cast at the polls for Samuel Buser, Sr., in excess of 75 votes, which would be sufficient to change the result of the election. The illegal votes, it is alleged, were cast by persons not being legal residents of the First Election District of the Borough of North Haledon, and the petition of the contestant contains the names of 76 persons, who on November 3, 1936, were enrolled and living at Camp Haledon, located in said Borough of North Haledon. If these 76 votes were illegally received, and it is proven that they were cast for the incumbent, the contestant would have been legally elected and entitled to his certificate of election. The incumbent, answering the petition of the contestant, denied the allegations of the petition.

The matter comes before me as a contest of the election of Samuel Buser, Sr., to the office of Councilman of the Borough of North Haledon by one of two defeated candidates for said public office and is controlled by the provisions of article 26 of "An Act to regulate elections (Revision 1930)" approved April 18, 1930, with the amendments and supplements thereto. P. L.1930, chap. 187, pp. 671, 829 (Comp.St. Supp.1930, § 65—2601A et seq.)

It appears from the testimony taken before me on November 30 and December 1, 1936, that the Borough of Haledon, which owned a tract of land within the confines of the Borough of North Haledon, leased the premises to the New Jersey Emergency Relief Administration on October 18, 1934. The lease is in evidence and covers "all lands adjoining the reservoir and waterworks owned by the Borough of Haledon with the exception of that portion used by the water department, to be used exclusively for the following purposes: Transient Training Camp." The lease was for a term beginning November 1, 1934, and ending with October 31, 1935.

The temporary State Emergency Relief Administration, in existence at the time of making this lease on October 18, 1934, was set up under the provisions of chapter 12 of the Laws of 1934, p. 47 (N.J.St.Annual 1934, § 161—354 et seq.), which became effective on January 31, 1934, and was to become inoperative after January 31, 1935.

By chapter 12 of the Laws of 1935, p. 34 (N.J.St.Annual 1935, § 161—371 note), this act was on January 28, 1935, extended to February 28, 1935, and a new State Emergency Relief Administration was set up on February 26, 1935, by chapter 35 of the Laws of 1935, p. 81 (N.J.St.Annual 1935, § 161—373 et seq.), which shall expire on March 1, 1938, but shall become inoperative from and after such time as the Governor shall, by proclamation, declare that the emergency necessitating its creation had ceased to exist. That act also provided that emergency relief shall continue to be administered under chapter 12 of the Laws of 1934 until March 1, 1935.

On May 4, 1936, by chapter 83 of the Laws of 1936 (N.J.St.Annual 1936, § 161— 439 et seq.), the Emergency Relief Administration set up under chapter 35 of the Laws of 1935 was abolished, and a new public policy declared by the Legislature, that public assistance is primarily the duty of the municipality and of civic and charitable organizations.

When chapter 12 of the Laws of 1934 (page 47) was approved on January 31, 1934, the following declaration of a public policy was made by the Legislature:

"Whereas, The responsibility for the securing of employment for providing the necessities of life is primarily individual and the result of private effort and industry, and while the providing of relief of various kinds so far as it must be done out of public funds is the responsibility and function of local governments, by reason of the widespread unemployment resulting from existing economic and industrial conditions, relief and assistance that can be provided by private agencies and local governing authorities are not presently sufficient to meet the minimum needs of the people of this State, it therefore becoming necessary to supplement the local public and private relief work by State aid and support; and

"Whereas, The hardships occasioned by and attended upon the lack of gainful employment and the economic depression generally prevailing are so acute and so affect the public health and welfare of the people that there is now an emergency which requires State recognition and aid."

Supplementing the legislation providing for relief of various kinds, the Legislature has provided by successive enactments during the period of the present economic emergency, beginning October 13, 1931, until January 31, 1938, that dependency or poor relief received by any person, resident of this State, from any of the poor or emergency relief agencies of this State, or of the several municipalities thereof, shall not be counted in computing the residence or domiciliary period necessary for any such person to either gain or lose a place of legal settlement under any law of this State, to the end that the place of legal settlement of any person receiving dependency or poor relief shall be and remain the same during this emergency. P. L.1933, chap. 126, p. 263 (N.J.St.Annual 1933, § 161—163 note); P.L.1934, chap. 9, p. 45 (N.J.St.Annual 1934, § 161—163 note); P.L.1935, chap. 260, p. 840 (N.J.St. Annual 1935, § 161—401, and note).

There, is testimony in this case that the property was used by the New Jersey Temporary Emergency Relief Administration for a Transient Training Camp as early as August 15, 1933. That temporary administration was set up under the provisions of chapter 4 of the Laws of 1933 (N.J.St.Annual 1933, § 161—320(1) and note), amending chapter 394 of the Laws of 1931, 2d Sp.Sess. (N.J.St.Annual 1932, § 161—320(1) et seq.).

It is undisputed that on December 2, 1935, the New Jersey State Relief Administration turned over this camp to the Federal Government, and it then became a part of the Federal Works Progress Administration established under the "Emergency Relief Appropriation Act for 1935 [Public Resolution No. 11, 74th Congress]" (15 U.S.C.A. § 728 note) and Executive Order No. 7034 of May 6, 1935. The purpose of Public Resolution No. 11 is stated as follows: "That in order to provide relief, work relief and to increase employment by providing for useful projects, there is hereby appropriated." Section 1 (15 U.S.C. A. § 728 note).

I do not find that any rules and regulations prescribed by the Works Progress Administration, "a. To assure that as many of the persons employed on all work projects as is feasible shall be persons receiving relief; and b. To govern the selection of such persons for such employment," were approved by the President of the United States as required by his Executive Order of May 6, 1935.

The evidence shows that on November 3, 1936, the 76 persons whose votes were challenged resided at Camp Haledon; that they received their compensation from the Federal Government and paid the Federal Government for their keep and maintenance. Seventy-two of the 76 persons had previous residence in 17 States of the Union; 33 of them had resided in New Jersey and 39 hailed from Massachusetts and Rhode Island; as far south as Louisiana, Texas, and Florida; and as far west as Montana. Their ages ranged from twenty-one years to seventy-five years, and the earliest entrant of the camp has been there since October 1, 1933. Ten had previous residences in Passaic County; twenty-three in other counties of the State; four came from other camps within the State; and two from camps outside of the State.

Paragraph 37 of article 4 of the New Jersey Election Law, Revision of 1930 (Comp.St.Supp.1930, § 65—401A), prescribes the following qualifications for exercising the right of franchise: "Every person possessing the qualifications required by the Nineteenth Amendment to the Constitution of the United States [Woman Suffrage] and Article II, Section 1 of the Constitution of the State of New Jersey and having none of the disqualifications mentions (mentioned) therein, and being duly registered as required by this act, shall be entitled to vote in the polling place assigned to the election district in which he actually resides, and not elsewhere; provided"

Section 1 of article 2 of the New Jersey Constitution provides as follows: "1. Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote...