Kilmurray v. Gilfert

Smalley, J. S. C.

(dissenting). The only question here involved that I am in disagreement with my colleagues is as to the meaning of R. 8. 19:13—20 as amended: The pertinent provisions are as follows:

“19:13-20. In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than thirty-seven days before the general election, * * * a candidate shall be selected in the following manner: * * * in case of an office to be filled by the voters of an entire county or a portion thereof involving more than one municipality, the candidate shall be selected by the county committee of such political party within the county. * * * The selection shall be made no later than thirty-four days prior to the general election, and a statement of the selection shall be filed as follows: * * * the county committee or subdivision thereof with the county clerk. Such statement shall not be filed later than thirty-four days prior to the general election. * * * The person so selected shall be the candidate of the party for such office at the ensuing general election.”

There is no dispute that James E. Murray, Sr. was nominated at the 1952 primary election as the candidate of the Democratic Party for the office of register of deeds and mortgages for Hudson County. Mr. Murray, unfortunately, passed away on Monday, September 29, 1952. On the following day, September 30, the county committee of his party met and selected William L. Johnston as the candidate of the Democratic Party to fill the vacancy and, on the same day, filed a. statement of such selection with the County Clerk of Hudson County.

Unless my calculations are faulty, James E. Murray, Sr. died 36 days prior to the general election to be held on *289November 4, 1952. Accordingly there was no vacancy that could be filled by the county committee.

It is fundamental that where there is an ambiguity in a statute, courts will supply judicial interpretation. The rule that a clear and unambiguous statute requires no judicial interpretation is equally fundamental. I fail to find any ambiguity in the statute under review. It is argued that in view of the fact that a county committee has until the 34th day before general election to file its selection with the county clerk in the event of a vacancy, that this is an indication that the Legislature intended to allow a county committee to fill any vacancy that occurred at any time prior to the 34th day before general election. It could be just as well argued that the Legislature contemplated that in the event there was a vacancy on or before the 37th day prior to general election, that a county committee might need some time for the giving of necessary notice to the members of the county committee of the meeting to be held and some further time for the consideration and selection of some person to fill the vacancy but would require the county committee’s selection to be filed with the county clerk on or before the 34th day before general election.

It may be assumed that the Legislature has an appreciation of the necessity of the county clerk having sufficient time to set in motion the necessary machinery to hold an election. These duties, whether they devolve upon a county clerk or superintendent of elections or both, are important duties. The printing and mailing of ballots, the getting into readiness the voting machines are tasks that need to be done and done properly. It is more important that no names should be printed on a ballot or appear on a voting machine that do not rightfully belong thereon.

I do not understand that in the event that Mr. Johnston’s name does not appear on the printed ballot or is not indicated on the voting machine, that the voters of Hudson County will be deprived of their right of franchise. The prohibition in the statute preventing any political party *290filling any vacancy that may occur alter the 37th day before general election does not prevent the voters from indicating their personal choice for any person for any such office. It does, however, prevent a political party from filling any such vacancy so occurring.

The Legislature has the power to regulate elections and may also permit the county committee or any other such political body the right to select its candidate in the event of a vacancy. It has, however, the same authority to prescribe the manner in which this right of selection may be exercised.

All of the parties cite Sharrock v. Keansburg, 15 N. J. Super. 11 (App. Div. 1951) where Judge Jayne speaking for the court concerning an election contest over the result of a referendum held in the Borough of Keansburg said,

“The right of suffrage in a government of and by a free people must always be regarded with jealous solicitude. To overthrow the expressed will of a large number of voters for no fault of their own and solely because of some harmless irregularity would in many cases defeat the paramount object of the election laws.”

Surely, there can be no quarrel with this pronouncement but it is interesting to note that Judge Jayne, at page 16, enunciated the rule that seems to be applicable here.

“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 elec^ tion, the courts, irrespective of their views of the wisdom or serviceability of the requirement, uniformly respect the legislative declaration.”

The observance of the provision in R. S. 19:13-20 as to how and when a county committee of a political party may *291fill a vacancy is not the overthrowing of the expressed will of the voters at any election, but merely the regulation of the action of political parties fulfilling a vacancy.

I surmise that the unfortunate passing of Mr. Murray one day after the time limitation imposed by the Legislature when county committees can properly fill a vacancy has aroused certain feelings of frustration which have resulted in the rather ingenious arguments for the by-passing of the applicable statute.

The proposition has been stated that since the Legislature did not see fit to include the 37-dav limitation in B. S. 19:13-19, relating to the filling of a vacancy where a candidate has been nominated by direct petition, that therefore the Legislature did not consider the 37-day period as an essential time element which had to be met in R. 8. 19:13-20. The rules of sound judicial statutory construction do not lend support to this proposition. The fact that the Legislature saw fit to include the time limitation in R. 8. 19 :13-20 when it was knowingly omitted in B. 8. 19 :13-19 is weighty evidence that the law makers intended the time limitation to be an essential element of the former statute.

Assuming, but not admitting, that it is unwise to impose the limitation as set forth in R. 8. 19 :13-20, “The remedy, if one is needed, lies in the law making body.” Hawkes v. Gates 129 N. J. L. 5, 11 (Sup. Ct. 1942).

It cannot be seriously suggested that the Legislature did not have full knowledge and appreciation of the limitation of time imposed by B. 8. 19 :13-20.

Chief Justice Gummere in Island, Heights, &c., Co. v. Brooks & Brooks, 88 N. J. L. 613, 616 (E. & A. 1916) speaking for the court said:

“But, as we have already said, it is not a question of what would have been wise for the legislature to have enacted with which courts are concerned, but what is expressed in the statute; and when the terms used therein clearly express the legislative intent, nothing remains to the courts except the enforcement of that intent as expressed in the enactment.”

*292B. S. 19:13-20 provides in plain verbiage what the county committee may do when a vacancy occurs from and after the primary election of April 15, 1952 until the date of September 28 of this year, 1952. If a county committee seeks to fill a vacancy occurring on September 29, 1952, the date of Mr. Murray’s death, or any time thereafter, its action is a nullity.

I vote to reverse the court below.