State ex rel. McDavitt v. Town Committee of Andover Township

43 N.J.L. 595

• Court: Supreme Court of New Jersey
• Decided: November 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered by

Parker, J.

The relator claims to have been elected a constable at the town meeting held on the 8th day of March, A. D. 1881, in the township of Andover, in the county of Sussex. On the 12th day of March he presented to the town committee his bond for approval. The committee refused to accept the bond.

A rule to show cause why a mandamus should not issue to compel the committee to accept the bond was granted, and the motion now is that a mandamus issue.

At the time of the presentation of tlie bond the town committee had not legal notice that the relator had been elected a constable. No statutory statement of the result had been promulgated or entered in the minute-book, so as to require the committee to regard the relator as constable elect.

It is true that a certificate of the election board, purporting to show the relator to have been elected one of four constables, was made; but at the time of the tender of the bond the committee had not had legal notice of it.

But, even if every requirement of the law had been complied with before the presentation of the bond to the town committee, the relator has waived the certificate of election, by voluntarily going behind it, and proving that he was not elected.

The statute authorizes the election of one or more constables in a township. No mode is pointed out by which the-voters shall designate the number. The number to be chosen may be determined on the ballots voted..

It appears from the testimony in this oase, that two hundred and thirty-eight votes were polled. On one hundred and sixty-three tickets is the name of John Kinney alone, andón each of those tickets are the words “ one constable.” On the remaining ballots are the names of William McDavitt, the relator, and two others, “ for constables.”

The voters determined on one hundred and sixty-three ballots out of two hundred and thirty-eight cast, to have but one constable in that township, and that John Kinney should be that one. The relator was not elected.

The rule should be discharged, with costs.