Summary
In Barr v. Geldziler, 108 N.J.L. 397 [ 156 A. 644], the court stated (p. 645): "The time began to run from the receipt by him of the notification; it was received, within the meaning of the law, when it was delivered to his office either by messenger or by mail...."
Summary of this case from Labarthe v. McRaeOpinion
Submitted May 29, 1931 —
Decided October 19, 1931.
On appeal from judgments of the Supreme Court in which Judge Porter filed the following opinion:
"These actions are in the nature of quo warranto to test the title of the defendant to the office of member of the Passaic county board of elections. Questions of fact were raised by the pleadings and tried by me, by consent of the parties, without a jury. Both actions were tried on January 15th, 1930. For convenience the cases will be considered together.
"The facts from the pleadings and as testified to at the hearings in substance are as follows: Robert C. Barr was appointed and commissioned on March 1st, 1929, as a member of the county election board of Passaic county for a term of two years from that date. He exercised the duties of his office and was in office on April 30th, 1929. On that date an act of the legislature was approved, effective from that date, amending the law concerning membership in county election boards. Pamph. L. 1929, ch. 257. This act provides `that no person who now or hereafter holds elective public office shall be eligible to service as a member of the county board of elections during the term of such elective office.'
"On April 30th, 1929, the relator, Robert C. Barr, was a member of the council of the city of Clifton, an elective office. Under date of June 24th, 1929, the secretary to the governor addressed and sent a letter to Harry Heher, chairman of the state committee of the Democratic party advising him that a vacancy existed in the Passaic county board of elections by reason of Mr. Barr's ineligibility to the office under the act of April 30th, 1929, and requesting a nomination to fill the vacancy. Mr. Heher did not actually receive this letter until he saw it with other opened mail in his office a few days before July 10th, 1929. On that date he replied to the letter stating that a nomination would be made within a few days. Under date of July 16th, 1929, Mr. Heher sent a letter to the governor nominating the relator Agnes V. Barr to the office in question. On August 29th, 1929, the governor appointed and commissioned Samuel Geldziler, defendant, to the position. Mr. Geldziler took the oath of office and entered upon the duties of the office and continues to perform same. These proceedings are instituted by the relators Robert C. Barr and Agnes V. Barr, respectively, under section 4 of the statute. 3 Comp. Stat., p. 4212. In both cases the relators contend that the defendant is not entitled to the office. Mr. Barr argues that he is entitled to the office, saying that he was legally appointed, duly qualified, has not resigned and is not ineligible to hold the office under the provisions of the act of April 30th, 1929, supra. Mrs. Barr also claims the office by reason of her nomination by the state chairman of the Democratic party to the governor under date of July 24th, 1929, which she argues was legally done; she contends that under the law the appointing power is the state chairman and the governor's duty is to commission the person so nominated.
"It seems clear that Mr. Barr was ousted from the office by the provisions of the act of April 30th, 1929, supra, as and from that date. This act is an amendment to section 17 of the `An act to regulate elections,' Revision of 1920. It amends the law in two respects. First it vacates the office of any member of the county board of elections upon his becoming a candidate for any elective office, except to membership in county or state committee. Second, it provides `that no person who now or hereafter holds elective public office shall be eligible to serve as a member of the county board of elections during the term of such elective office.'
"Mr. Barr was on April 30th, when this act took effect, holding an elective office. Clearly he became at that time ineligible to serve on the county board under the provisions of this act. Ineligible as here used means incapable, unqualified. Thus there was created a vacancy. Article 6, section 19 of the Election act provides how vacancies shall be filled.
"The language of this section follows:
"`In case of a vacancy arising in any county board of elections from any cause other than expiration of the term, the governor shall be forthwith notified, notice of such vacancy to be given to the chairman of the state committee, and such chairman shall, not later than ten days thereafter, nominate a successor, who shall thereupon be commissioned by the governor; all appointments to fill vacancies shall be for the unexpired term only.'
"It will be noted that this act is silent as to whose duty it is to notify the governor or the chairman when a vacancy occurs. Someone quite evidently did notify the governor of the vacancy. A duty by the governor to then notify the chairman cannot be read into the law. However, the law provides that the chairman be notified. The governor did in fact notify him whether it was his duty to do so or not. So we have the statute complied with by having a notice of the vacancy received by both the governor and the state chairman. The chairman's duty was to nominate and the governor's to commission such nominee to fill the vacancy. However, the chairman is required to nominate `not later than ten days thereafter.'
"The chairman actually received the notice a few days before July 10th and nominated Mrs. Barr on July 16th, not later than ten days from the time that he read or knew the contents of the letter of notification of June 24th. That is not a compliance with the statute. The time began to run from the receipt by him of the notification; it was received, within the meaning of the law, when it was delivered to his office either by messenger or by mail, not when he read it or actually received it some two weeks after its date. The nomination by him, therefore, under date of July 16th came too late and is of no effect; he had lost his right to nominate by not having acted within the ten days limited by the act. The relator Agnes V. Barr, therefore, has no rights to the office.
"Article 6, section 20, of the Election act vests power in the governor to make the `appointment of his own selection' where the chairman fails to nominate within the ten-day period. Pursuant to this authority the governor did appoint and commission the defendant. He was therefore legally appointed and is entitled to possess the office.
"Both proceedings will be dismissed. Posteas will be signed in accordance with these findings."
For the appellants, Edward F. Merrey.
For the respondent, Thomas J. Kennedy.
The judgments appealed from will be affirmed, for the reasons stated in the opinion filed by Judge Porter.
For affirmance — THE CHIEF JUSTICE, TRENCHARD, CAMPBELL, LLOYD, CASE, BODINE, DALY, VAN BUSKIRK, HETFIELD, DEAR, WELLS, JJ. 11.
For reversal — PARKER, DONGES, KAYS, JJ. 3.