Angle v. Central Timber Export Co.

93 N. J. L.

"Section 1. Every justice of the peace shall use a seal, which shall bear the inscription in circular form "The Small Cause Court of the County of... New Jersey,'

and the name of the justice and state, ward or township from which he is elected, &c.

"Section 2. Every summons, 'subpoena, commitment, warrant and transcript of every judgment entered in the docket in said Small Cause Court shall bear the impression of said seal, and no process issued by any justice of said Small Cause Court shall be valid without the impression of said seal.

"Section 3. Every justice of the peace hereafter elected shall, before entering upon his duties, file with the county clerk of the county of which he is elected a certificate bearing an impression of his seal, described in section one of this act."

The effect of that enactment is to require, among other things, a transcript of a judgment to bear the impression of a seal substantially such as is described in the statute. Russell v. Sakis, 82 N. J. L. 260. The seal used on the transcript in question complied exactly with the statutory requirement. It was durably impressed upon the paper on which the transcript was written for the express purpose of solemn authentication. The statute was complied with, and the sealing in question was sufficient, even though the impression was not made on a wafer.

It is also argued here that the fact that the transcript sent up to the Court of Common Pleas failed to show that a written notice of appeal had been filed with the justice in the small cause court, and that no such notice accompanied the transcript, afforded legal ground for dismissing the appeal.

But that cannot be so. The Small Cause Court act does not require the notice of appeal to be sent to the Common Pleas. It requires, among other things, a "transcript of the proceedings and judgment," but that does not include the notice of appeal. According to the usual practice the transcript consists of a copy of the docket, which the statute (section 112) requires the justice to keep, and such papers as are necessary for the trial of the cause on appeal; and the

93 N. J. L.

Lindabury v. Township of Clinton.

notice of appeal is certainly not a paper necessary for that purpose. Lazarus v. Martling, 73 N. J. L. 84. No entry upon the docket respecting the appeal is prescribed, except "when and by whom demanded, and the date of receiving notice thereof," and the transcript of the docket in question shows substantial compliance with that requirement.

Moreover, in granting an appeal, the justice acts judicially, and if the legality of his adjudication on that point is challenged in the Common Pleas, he should be ruled to certify the facts, so as to correct any imperfections or irregularities apparent in the transcript before such adjudication is reversed. Lazarus v. Martling, supra. In the present case, so far as the record discloses, no suggestion was made in the Common Pleas that the appeal had not been legally granted.

I conclude that the order of dismissal should be set aside. Let the cause be remitted to the Common Pleas for further proceedings according to law.

ALVAH LINDABURY ET AL., PETITIONERS, v. THE TOWNSHIP OF CLINTON, IN THE COUNTY OF HUNTERDON, ET AL., RESPONDENTS.

Argued December 3, 1918-Decided December 13, 1918.

1. A local option election, held in a township at the general annual election, pursuant to the Local Option act (Pamph. L. 1918, p. 14, ch. 2), to determine whether the sale of intoxicating liquors as a beverage should be prohibited, will not be set aside because of failure to advertise specifically that the question was to be submitted at the general election, when it appears there was a full and fair expression of the popular will (as where four hundred and forty-two votes were cast on the question out of a total number of legal ballots of five hundred and three and a registry list of six hundred and forty-three), and it further appears that knowledge that the question was to be submitted at the election was brought home to the voters by mailing sample ballots (being a true copy of the official ballot) to every registered voter on or before the Wednesday preceding election day, as required by the act of April 7th, 1914. Pamph. L., p. 194.

Lindabury v. Township of Clinton.

93 N. J. L.

2. By section 16 of the Local Option act (Pamph. L. 1918, p. 14, ch. 2), the result of any election is determined by a majority of the votes cast on the question, and a majority of the votes cast at the election is not required.

On petition, &c.

Before Justice TRENCHARD, pursuant to Pamph. L. 1918, $ 25, ch. 2.

For the petitioners, H. Burdett Herr.

For the respondent the township of Clinton, Paul A. Queen.

For certain intervenors, George S. Hobart and William C. Gebhardt.

The opinion of the court was delivered by

TRENCHARD, J. This is a proceeding contesting the validity of an election held at the general election November 5th, 1918, to determine whether the sale of intoxicating liquors as a beverage shall be prohibited in the township of Clinton, in the county of Hunterdon, pursuant to Pamph. L. 1918, ch. 2, known as the Local Option act.

Among others, the following matters of fact are stipulated in writing:

(a) Notice of the general election to be held in said municipality on November 5th, 1918, was duly published and posted in accordance with the provisions of the General Election law. Said notice contained no reference to the question as to the sale of intoxicating liquor in said municipality, which was voted upon therein at said general election. (b) Sample ballots were mailed to every registered voter of said municipality, in the manner and at the time required by the General Election law. Said sample ballots contained therein the question "Shall the sale of intoxicating liquor as a beverage in the township of Clinton be prohibited?" together with the form of bracket for voting "Yes" or "No" and the "In

93 N. J. L.

Lindabury v. Township of Clinton.

structions to Voters," as specified in said chapter 2. (c) The official ballot used at said election on November 5th, 1918, was a true copy of said sample ballot. (d) At said election on November 5th, 1918, four hundred and forty-two votes were cast on the above question, of which two hundred and twenty-eight votes were in favor of the prohibition of the sale of intoxicating liquor as a beverage in said municipality and two hundred and fourteen were against said prohibition. (e) At said election of 1918 the total number of voters on the registry list was six hundred and forty-three; the total number of legal ballots cast thereat was five hundred and three. (f) The total number of votes for candidates at said election of 1918 was as follows: United States Senator (full term), four hundred and fifty-five; United States Senator (to fill vacancy), four hundred and fifty-five; Mem-" ber of Congress, four hundred and fifty-two; State Senator, four hundred and seventy-six; Assembly, four hundred and fifty-three; County Freeholder, four hundred and sixtythree. (g) At the general election of 1917 the total number of voters on the registry list was six hundred and forty-nine; the total number of legal ballots cast thereat was four hundred and seventy-one. (h) The total number of votes for candidates at said election of 1917 was as follows: Sheriff, four hundred and fifty-one; Assembly, four hundred and thirty-two; County Freeholder, four hundred and fifty-seven; Coroner, three hundred and eight.

First, it is contended that the election should be set aside because of the failure to advertise that the question was to be submitted at the general election.

I think that contention unsound.

It is to be noted that there is no provision of the Local Option act requiring such advertisement when the question is to be voted upon at the general election.

There are, of course, explicit provisions for advertisement in the case of a special election (section 6), and in Reed v. Township of Independence, 92 N. J. L. 102 (opinion by Mr. Justice Minturn), a special election was set aside for want of the advertisement provided for in the statute.

Lindabury v. Township of Clinton.

93 N. J. L.

But when, as here, an election on the question specified is to be held at the general election in November (that is, in those cases when the petition was signed by not less than twenty per cent. nor more than thirty per cent. of the legal voters), the Local Option act itself does not require any advertisement that the question is to be submitted. Possibly, the reason for that is that in the case of a general election the county clerk is required to furnish sample ballots to the municipal clerk to be mailed by the board of registry and election to each registered voter on or before noon of the Wednesday preceding election day. Pamph. L. 1914, p. 194. The question or questions which are to be voted on in any particular municipality are, of course, included on this sample ballot, and this may have been regarded by the legislature as ample notice of the fact that such question is to be voted on.

The petitioners, however, seem to contend that in case, as here, the question is to be voted upon at the general election, advertisement is required by section 7 of the General Election law. Comp. Stat., p. 2074. With respect to that contention, it is to be observed that such section does not in terms so provide. But assuming, without deciding, that, by construction, that section requires the municipal clerk to advertise a referendum which is to be held at the general election, nevertheless, I think such election should not be set aside. when it appears, as here, that there has been a full and fair expression of the voters.

A case in point is Fletcher v. Collingswood, 59 Atl. Rep. 90. The question was the validity of an election by which a majority of the voters of the municipality authorized the issue of bonds for the construction of streets and sewers. The election was held at the same time and place as the annual election for borough officers; notice of the time and place of the annual election was given as required by the Election law. There were five hundred and ninety-nine registered voters, of whom four hundred and thirty-eight voted for officers, four hundred and twenty-six voted on bonds for streets and four hundred and twenty-seven on sewers, of