Theurer v. Borrone

• Decision Date: 23 October 1963
• Docket Number: No. L--10377,L--10377
• Citation: Theurer v. Borrone, 195 A.2d 215, 81 N.J.Super. 188 (N.J. Super. 1963)
• Parties: J. Beier THEURER et al., Plaintiffs, and William L. Phelps, Florence B. Phelps, Erich F. Korman and Judith S. Korman, Interveners, v. Edward J. BORRONE et al., Defendants.
• Court: New Jersey Superior Court

Page 188

81 N.J.Super. 188

195 A.2d 215

J. Beier THEURER et al., Plaintiffs and William L. Phelps, Florence B. Phelps, Erich F. Korman and Judith S. Korman, Interveners, v.Edward J. BORRONE et al., Defendants.

No. L--10377.

Superior Court of New Jersey Law Division.

Oct. 23, 1963.

Samuel Miller, Jersey City, for plaintiffs(William F. Kelly, Jr., County Counsel, Jersey City, attorney).

Nicholas Politan, Lyndhurst, for plaintiff-interveners(Checki & Politan, Lyndhurst, attorneys).

Thomas P. Calligy, Hoboken, for the defendants Romano, Capiello and Havens.

ARTASERSE, A.J.S.C.

This proceeding in lieu of prerogative writs was originally brought by the Superintendent of Elections and the County Board of Canvassers of Hudson County and a taxpayer of Hoboken to restrain, among other relief, the City of Hoboken from paying salary increases purportedly authorized by the November 6, 1962 police pay raise referendum in that city.

Defendants are the county clerk, the city clerk, the mayor and council of Hoboken, 52 election district workers in that city, and three Hoboken policemen who represent the policemen as a class.

The county clerk, the city clerk and the moyor and council have answered that they are willing to abide any determination of this court.The election officers and workers have defaulted.Only the policemen defend, and defend in a vigorous opposition to this suit.

Four other taxpayers of Hoboken were allowed to intervene as plaintiffs.The pretrial order narrowed the relief sought to restrain the payment of the increases and abandoned any statutory relief under the election contest statute, N.J.S.A. 19:29--1 et seq.

Before discussing the legal issues involved, a recitation of the facts which the court has found is in order.The certified election results of November 6, 1962 on Public QuestionNo. 2, which was the pay raise referendum, showed that the question was carried by a plurality of 638 votes, that is, 4963 'yes' votes to 4325 'no' votes.Shortly after the election there were anonymous complaints of certain irregularities in the election made to the superintendent of elections, the F.B.I and to the prosecutor's office of Hudson County.No action was taken until January 7, 1963 when, at the direction of the Deputy Attorney General in charge of the Hudson Countyprosecutor's office, the superintendent of elections, Mr. William MacPhail, and Mr. Thomas J. Herlihy, a detective from the prosecutor's staff, opened and rechecked the sealed election machines.

The court finds that the machines had been locked and sealed at the close of the polling on November 6, 1962, and that they were in that same untouched condition when opened by the superintendent of elections and Mr. Herlihy on January 7, 1963.

The court finds that the machines when rechecked showed that the actual vote on Public QuestionNo. 2 had been 4066 'yes' votes to 5054 'no' votes, that is, that the question had in fact been defeated by a plurality of 988 votes.Thirty-three of those votes were absentee ballots.Hence the machines actually showed 4033 'yes' votes

The discrepancies in the returns from 13 election districts leads inescapably to the inference of fraud.The court finds that there were fraudulent returns made from these 13 districts.The evidence at the trial conclusively established these facts.Indeed, plaintiffs' factual contentions have not been challenged at all by defendants.Their defense lies in certain legal objections.

I will first dispose of defendants' academic issue that the board of canvassers and the superintendent of elections are not proper partyplaintiffs since the theory of their action can only be sustained on the ground that it is a taxpayer's suit.While agreeing with this contention, I consider the issue moot because of the presence of the taxpayers-plaintiffs who have sufficient standing to maintain the suit.Probably the superintendent of elections and the board of canvassers should have been nominal defendants, as was the county clerk.

Defendants presented two major contentions premised on the same basic argument.First, they assert that a taxpayer in these circumstances is limited in his remedy to an election contest under the Revised Statutes, Title 19, N.J.S.A.Since the time for such a contest has elapsed, they conclude that this court is without jurisdiction to decide this controversy.Secondly, they assert that the facts which plaintiffs used to show the true result of the election, namely, the testimony of Mr. MacPhail and Mr. Herlihy, were not admissible in evidence.Their position is that the only manner allowed to show the returns is those procedures set forth in Title 19.

Both these contentions are premised upon the defendants' belief that Title 19 provides exclusive remedies for taxpayers seeking to prevent the disbursement of public funds authorized by a fraudulent election return.

The defendants cite Lynch v. Acquilone, 32 N.J.Super. 513, 108 A.2d 645(App.Div.1954), as authority for this proposition.In that case the suit, although labeled a proceeding in lieu of prerogative writs, was to contest an election after the time allowed by N.J.S.A. 19:29--3 on the grounds that the statutory campaign fund limitation had been exceeded by one of the candidates.The court disregarded the label, and construed it as an election contest, and held that it was not timely.

The Lynch case, however, is distinguished from the instant litigation because it sought enforcement of a statutory election requirement which could be instituted only because of N.J.S.A. 19:39--2.The sole question before the court in that case was whether the petition was filed within time.A taxpayer would have no right to enforce such a limitation except as the statute establishing the limitation may have permitted or allowed.

However, a taxpayer does have a right to prevent illegal payment of public funds.The late Chief Justice Vanderbilt eloquently reiterated this long-established and basic right of a taxpayer in the following language from the now classic case of Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 86 A.2d 201(1952).This is what he said:

'These obligations are not mere theoretical concepts or idealistic abstractions of no practical force and effect; they are obligations imposed by the common law on public officers and assumed by them as a matter of law upon their entering public office.The enforcement of these obligations is essential to the soundness and efficiency of our government, which exists for the benefit of the people who are its sovereign.Constitution of 1947, art. I, par. 2.The citizen is not at the mercy of his servants holding positions of public trust nor is he helpless to secure relief from their machinations except through the medium of the ballot, the pressure of public opinion or criminal prosecution.He may secure relief in the civil courts either through an action brought in his own name, Tube Reducing Corp. v. Unemployment Compensation Commission, 1 N.J. 177, 181, 62 A.2d 473, 5 A.L.R.2d 855(1948);Waszen v. City of Atlantic City, 1 N.J. 272, 276, 63 A.2d 255, (1949);Haines v. Burlington County Bridge Commission, 1 N.J.Super. 163, 170--173, 63 A.2d 284(App.Div.1949), or through proceedings instituted on his behalf by the Governor;Constitution of 1947, art. V, sec. I, par. 11, or by the Attorney-General, Public Service Coordinated Transport v. State, 5 N.J. 196, 207--209, 74 A.2d 580, (1950).Under the former practice the great prerogative writs, especially Certiorari, were generally available to the aggrieved citizen, but by art. VI, sec. V, par. 4 of the Constitution of 1947 the relief theretofore granted in such matters as a matter of judicial discretion became a matter of right, seeWard v. Keenan, 3 N.J. 298, 303--309, 70 A.2d 77(1949).Nonfeasance, misfeasance, malfeasance and corruption in public office cannot prevail against an aroused citizenry who have it in their power to end the misconception of some public officials that their obligations are fully met so long as they obey the letter of the law and avoid its penal sanctions.That the shortcomings of some public officers may not make them accountable in our criminal courts does not mean that their nefarious acts cannot successfully be attacked through the processes of the civil law.'(8 N.J. at p. 476, 86 A.2d at p. 222)

A taxpayer would have this right to sue even without statutory authority.It is of common law origin in this State.The historic development of the taxpayer's cause of action is sketched in the early case of Ferry v. Williams, 41 N.J.L. 332, (Sup.Ct.1879).Even prior to that time there is evidence of our courts' entertaining such an action.See State, Gregory, Taylor, pros. v. Jersey City, 34 N.J.L. 390, (Sup.Ct.1871).In State v. Kingsland, 23 N.J.L. 85(Sup.Ct.1851), the court allowed a taxpayer to sue, thus impliedly admitting his standing and its jurisdiction, but denied relief in the exercise of its then discretionary power in prerogative writ actions.In that case the township had voted to appropriate an amount of money for school purposes to be raised by taxes.However, the amount exceeded the statutory limitation.The court did not grant the relief sought by Certiorari because the money had already been collected and disbursed.It found that it could protect the taxpayer-plaintiff's interest in another way, as shown in State v. Quaife, 23 N.J.L. 89(Sup.Ct.1851), where the court set aside so much of the assessment as was for school purposes.

These ancient cases are cited to show that a taxpayer does not need the election contest statute to bring this action.He has the cause of action on which this suit is predicated, outside the election statutes and in addition to those remedies.See alsoTube Reducing Corp. v. State, 1 N.J. 177, 62 A.2d 473, 5 A.L.R.2d 855(1948);Demoura v. Newark, 74 N.J.Super. 49, 180 A.2d 513(App.Div.1962);Koch v. Borough of Seaside...