Lindabury v. Clinton Township.

93 N. J. L.

Whether, therefore, we consider the physical status of the injured defendant as lessened by the loss of a physical attribute, which serves to constitute the perfect genus homo; or as possessed of a dual entity which in natural and moral law he had a right to retain, as a reserve factor in the cosmic dispensation, the loss he sustained was a permanent impairment of his physical entity, under the provisions of our statute, and was properly compensated for as such by the award of the Common Pleas.

The award will be affirmed, with costs.

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

Submitted March 20, 1919-Decided March 20, 1919.

The fact that the submission of the question of local option at a special election is safeguarded by specific legislative preparatory requirements, as to notice, public meetings and ballots, furnishes a legal constructive inference, in the absence of like requirements at the general election, that such protective publicity regulations were not within the legislative contemplation.

On certiorari to review determination of local option election.

Before Justices PARKER and MINTURN.

For the prosecutors, George H. Large and H. Burdett Herr.

For the township, Paul A. Queen.

For the citizens, George S. Hobart and William C. Gebhardt.

93 N. J. L.

Lindabury v. Clinton Township.

The opinion of the court was delivered by

MINTURN, J. The writ of certiorari brings up the determination of a local option contest, before Mr. Justice Trenchard, upon a summary review of the facts presented as contemplated by section 25 of the Local Option act. Pamph. L. 1918, ch. 2.

The review of that determination is provided for by section 26 of the act, and is therein limited to a review of questions of law arising upon the record.

We are asked upon this review to determine questions aliunde the record and which were not presented in the first instance. This we are not required to do, either under the language of the act itself or under the well-settled rule governing this method of review, as determined by our adjudications. The twenty-fifth section of the act limits the initial inquiry before the justice to the consideration of a petition. "setting forth the grounds of such contest."

In the case at bar the grounds presented to the learned. justice at the summary hearing were two in number. The settled procedure incident to a review upon a writ of certiorari limits the inquiry to an examination of the record thus presented. 1 Tidd Pr. 407; Jacques v. Hulit, 16 N. J. L. 38; Race v. Bird, 24 Id. 37; Marter v. Repp, 82 Id. 272, It was contended that the election in question should be set aside, because of the failure of the local clerk to advertise the specific fact that the question propounded by the act would be submitted to the voters.

The election was the general annual election, and the act in question contains no provision requiring such special publication of notice when the question is to be submitted at such election. The fact that the submission of the question at a special election is safeguarded by specific legislative preparatory requirements as to notice, public meetings and ballots furnishes a legal constructive inference in the absence of like requirements at the general election, that such protective publicity regulations were not within legislative contemplation, for the reason clearly stated by Mr. Justice Kalisch in In re Lamb, 105 Atl. Rep. 448.

Lindabury v. Clinton Township.

93 N. J. L.

The explicit legislative requirement of these protective essentials in the event of a special election, and their absence in the event of the submission of the same question at a general election, afford ample basis for the construction that in the one case the legislature deemed them a necessary prerequisite to the holding of a valid election, and that in the other the universality of knowledge concerning this prime essential of a citizen's duty would bring the fact home to him. Quod non apparet non est.

There is no serious contention in the case that a full and fair expression of local sentiment upon this question was not obtained at this election; that any voter was misled, deluded or ignorant of the situation, or failed to receive a sample ballot presenting the legislative query, and such being the fact the rule of law is settled that a mere clerical oversight, omission or deliction will not avoid the result. Brown v. Street Lighting District, 70 N. J. L. 762, and other cases referred to by Mr. Justice Trenchard in his opinion.

The contention that only a plurality of the vote determined the election is answered by the language of the sixteenth section of the act which provides that the result shall be determined by a majority "of the votes cast on the question submitted."

Other questions are presented in the brief of the petitioners, but we find it unnecessary to determine them, for the reason that the matters involved in their consideration antedate the election and were not presented at the summary hearing.

It may also be observed that their presentation at this juncture, for the first time, subjects the petitioners to the charge of laches. The alleged irregularities preceding the election, if they existed, were, we must assume, within the petitioners' knowledge, after the election, and, perhaps, before it, or were of such a character that by reasonable inquiry they could have been brought to their attention, as a basis for discussion, upon the summary hearing. But for almost two months after the summary determination their

legal importance as a basis for judicial action was ignored, and upon the application for this writ they were presented for initial hearing.

The act under review contemplates throughout its provisions a summary disposition of the legal questions which may eventuate from this legislation, and the doctrine of laches in such a situation applies to him who would be legally served, upon a question of formal procedure; and, particularly, where the public interests are concerned, the equitable rule applies that commends and rewards the alacrity of the vigilant. McKeritt v. Hoboken, 45 N. J. L. 482.

The writ will be dismissed, with costs.

GEORGE S. LITTLE, PROSECUTOR, v. J. ELLSWORTH LONG ET AL., RESPONDENTS.

Submitted March 20, 1919-Decided June 24, 1919.

Proceedings in attachment being statutory and out of the course of the common law, must be strictly construed, and where the affidavit alleged that defendant was a non-resident and absconded from his "debtors," and it appears that the defendant was, and for years past had been, a resident of the county and engaged in business therein so that service of ordinary process might at any time have been served upon him, or a member of his family, the writ will be quashed.

On certiorari removing judgment of justice of peace.

Before Justices PARKER and MINTURN.

For the prosecutor, Willis Tullis Porch.

For the respondents, J. Hampton Fithian.

Little v. Long.

The opinion of the court was delivered by

93 N. J. L.

MINTURN, J. The writ removes a judgment in attachment rendered by the court for the trial of small causes in Cumberland county. The affidavit alleged defendant was a non-resident and absconded from his "debtors." Judgment was rendered by the justice in favor of the plaintiff, no appearance being made by the defendant. The record shows that for years past the defendant was a resident of the county, and engaged in business therein, so that service of ordinary process might at any time have been served upon him, or a member of his family.

This fact must have been known to the plaintiff, and to the justice of the peace who granted the writ, or upon proper inquiry would have been made known to them. Stafford v. Mills, 57 N. J. L. 570.

Within a few days after the issuance of the writ the plaintiff in attachment received and used a check from this prosecutor in part payment of the note in suit, together with a renewal note for the balance, which facts lend no color to the charge that the prosecutor had absconded or changed his usual abode. They were enough in themselves to say the least, to warrant inquiry by the plaintiff before charging the prosecutor with the mala fides incident to an allegation of absconding, with a view to defrauding his "debtors."

Nor was the statutory requirement complied with in an affidavit which expressly charges the defendant with the unique and unusual proceeding of absconding from his "debtors."

The proceedings are statutory, and out of the course of the common law, and result in taking the property of a defendant in an ex parte proceeding, in invitum, and therefore must be strictly pursued. Corbit v. Corbit, 50 N. J. L. 363.

Other delinquencies in procedure anterior and subsequent to the issuance of the writ are manifest in the record, but those mentioned are obviously sufficient to render any profitable discussion of the others unnecessary.

The writ of attachment, judgment and all proceedings based thereon are set aside, with costs.