Sharrock v. Borough of Keansburg, A--282

• Decision Date: 09 August 1951
• Docket Number: No. A--282,A--282
• Citation: 15 N.J.Super. 11,83 A.2d 11
• Parties: SHARROCK et al. v. BOROUGH OF KEANSBURG et al.
• Court: New Jersey Superior Court — Appellate Division

Page 11

15 N.J.Super. 11

83 A.2d 11

SHARROCK et al. v. BOROUGH OF KEANSBURG et al.

No. A--282.

Superior Court of New Jersey

Appellate Division.

Argued July 30, 1951.

Decided Aug. 9, 1951.

Abraham Frankel, Asbury Park, argued the cause for appellants (Frankel & Frankel, Asbury Park, attorneys).

William R. Blair, Jr., Red Bank, argued the cause for respondents (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).

Before Judges JAYNE, WM. J. BRENNAN, Jr. and VANDERWART.

The opinion of the court was delivered by

JAYNE, J.A.D.

A precursory narrative of the significant events which have been productive of this litigation is essential. The information is acquired from the stipulation of counsel.

At a regular meeting of the Municipal Council of the Borough of Keansburg convened on June 26, 1950, a petition signed by the requisite number of qualified electors of the municipality and in all other respects in conformity with the provisions of R.S. 33:1--47.1, N.J.S.A., was presented requesting the submission of a referendum to the voters of the following questions at the next ensuing general election.

'Shall sales of alcoholic beverages at retail be permitted in this municipality on week days between the hours of 6 A.M. and 2 A.M. of the following morning?'

'Shall sales of alcoholic beverages at retail be permitted in this municipality on Sundays between the hours of midnight Saturday and 2 A.M., and between the hour of noon and 2 A.M. of the following morning?'

In recognition of the petition the borough council on July 5, 1950, adopted a resolution directing the county clerk to print the questions upon the official ballots to be used at the election. A certified copy of the resolution was dispatched to the county clerk on July 20, 1950, and to the office of the Division of Alcoholic Beverage Control on October 1, 1950.

On October 4, 1950, the assistant deputy director of the Division acknowledged the receipt of the copy of the resolution and in his communication stated:

'We suggest that you remind the Monmouth County Clerk of the Explanatory Statement which he is required to print upon the official ballot immediately below the Public Questions at a referendum to be held, as here, under Revised Statutes, 33:1--47--1 (N.J.S.A.).

'It is to be understood that if a majority vote Yes on both Questions, the only hours of permitted sale in the Borough will be those fixed by the referendum; that if a majority vote Yes on one Question and No on the other, the hours fixed in the Question voted Yes will be the only permitted hours of sale (weekdays or Sundays, as the case may be), and there will be no change effected by referendum on the Question voted No; and that if a majority vote No on both Questions, the referendum will have effected no change at all in the Borough's present hours regulations.'

On October 5, 1950, the borough clerk addressed a letter to the county clerk in which he acquainted the latter, Verbatim et literatim, with the observations of the deputy director expressed in his communication of October 4, 1950.

Sample ballots were prepared and mailed to the qualified voters by the district boards of elections on October 31, 1950, and on November 1, 1950. An 'Explanatory Statement' appeared in its appropriate position on the sample and official ballots but read as follows: 'It is to be understood that if a majority vote Yes on both Questions, the Only hours of permitted sale in the Borough will be those fixed by the referendum; that if a majority vote Yes on one question and No on the other, the hours fixed in the Question voted Yes will be the only permitted hours of sale (weekdays and Sundays, as the case may be), and there will be no change affected by the referendum on the question voted No; and that if a majority vote No on both Questions, the referendum will have effected no change at all in the Borough's present hours regulations.'

Of the 3,095 registered voters in the borough, 2,097 voters cast ballots at the election. Of those who voted on the propositions, 1,363 voted 'yes' on the first question and 658 voted 'no.' On the second question 1,325 voted 'yes' and 680 voted 'no.' It is significant to notice that of the 2,097 ballots cast, 2,021 voters expressed their wishes on the first question and 2,005 on the second question. The highest number of the aggregate votes for the candidates for any one public office was 1,965.

The result of the referendum having been officially determined, the borough clerk in obedience to the directions of the statute forthwith notified in writing the Director of the Division of Alcoholic Beverage Control and the governing body of the borough of the action taken by the legal voters.

The plaintiffs, legal voters of the borough, thereupon filed their complaint in the Law Division of this court to contest the election in so far as it purports to express the approval by the voters of the two propositions submitted to them.

Specifically, the sole ground of contest is that the county clerk failed to cause to be printed on the ballot immediately beneath the printed questions the 'Explanatory Statement' in the verbiage appearing in the pertinent section of the statute. R.S. 33:1--47.1, N.J.S.A., as amended L.1945, c. 259, p. 786, § 1; L.1948, c. 20, p. 79, § 5; L.1949, c. 296, p. 905, § 5.

The quotation from the statute is: 'Explanatory Statement--A 'Yes' is a vote to permit sales only within the hours set forth in the question or questions printed above. A 'No' vote is a vote against changing the hours during which sales of alcoholic beverages are now permitted in this municipality.'

Parenthetically, the learned trial judge in his conclusions incidentally commented that the 'Explanatory Statement' printed upon the ballot displayed more clarity of expression than the one contained in the statute.

Noticeably, this is not an instance where there has been an omission of any explanatory and instructive statement on the ballot relative to the referendum. Here the insistence of the appellants is that a rigid, if not literal, compliance with the terms of the statute is positively obligatory and that unless the statement on the ballot imitates the verbiage prescribed by the statute the election on the referendum must be annulled.

All counsel interested in the present appeal acknowledge that they have been unable to discover any reported decision construing the terms of this particular passage of R.S. 33:1--47.1, N.J.S.A.

The processes of public elections in this country are not of common law origin. Except for the express requirements of the constitutional security they are the creatures of statutory law. Therefore the courts refrain from an indulgence in any judicial action that refashions legislation regulating and facilitating the conduct of elections and which is calculated to secure the right of suffrage and the free expression of the choice of the voter.

And so, where the statute expressly declares that a specified irregularity shall nullify an election, the courts, irrespective of their views of the wisdom or serviceability of the requirement, uniformly respect the legislative declaration.

But where, as here, there is no such legislative declaration, the courts consider the nature of the irregularity, its materiality, the significance of its influence and consequential derivations in order to determine whether the digression or deviation from the prescribed statutory requisitions had in reasonable probability so imposing and so vital an influence on the election proceedings as to have repressed or contravened a full and free expression of the popular will, and thus deduce the legislative intent reasonably to be implied.

It has been in the pursuit of that rationale that...