(92 N. J. Law, 292)

(108 A.)

Separate writs to review the determinaMILLER V. TOWN OF MONTCLAIR et al. tion of Supreme Court Justices, sitting as a special legislative tribunal under Local Op

(Supreme Court of New Jersey. Feb. 18, tion Act, §§ 25 and 26, brought by Charles

1919.)

REGULARITY.

A failure to carry out the requirements of the Soldiers' Vote Act (P. L. 1918, p. 437), whereby a substantial percentage of voters lose the opportunity to vote, is more than a mere irregularity in conduct of an election; it is a practical disfranchisement of such voters.

H. Miller, Alfred H. Holbrook, Charles A.
Nutting, Harry S. Myers, Earnest R. Brown
and William H. Fischer against Town of
Montclair and another, City of East Orange
and another, Borough of Caldwell and anoth-
er, Borough of Roselle and another, Borough
of Dunellen and another, and Township of
Dover and another.
Dover and another. Writ dismissed in each

case.

Argued November term, 1918, before PARKER and MINTURN, JJ.

George S. Hobart, of Jersey City, and Benjamin F. Jones, of Newark, for prosecutors. Harrison P. Lindabury, of Newark, for defendants John L. Cox and John A. Brady. James R. Nugent, of Newark, for defendant Murray.

Abe J. David and Samuel Koestler, both of Elizabeth, for defendants McIntosh and Winter.

Wilfred H. Jayne, Jr., of Lakewood, for defendant Holman, Jr.

PARKER, J. These writs bring before this court for review the several determinations of three justices of this court, each sitting as a special legislative tribunal, pursuant to sections 25 and 26 of the Local Option Act (Pamph. L. 1918, pp. 32, 33), setting aside special elections held under said act in the town 4. ELECTIONS 227(7) REASONABLE AT- | of Montclair, the city of East Orange, and the TEMPT TO COMPLY WITH SOLDIERS' VOTE ACT. borough of Caldwell, in Essex county; the Where the Soldiers' Vote Act (P. L. 1918, boroughs of Roselle and Dunellen, in Union p. 437) required the secretary of state to mail county; and the township of Dover, in Ocean voting papers to each voter in service at least county. In each of the cases the election was 20 days before any general or special election, set aside because the justice held that proper and he was unable to do so because of the fail- opportunity was not afforded, as required by ure of local authorities to notify him in time law, for the casting of the vote of soldiers that such special election was to be held, it and sailors absent in government service, as cannot be said that there was a reasonable at-provided in chapter 150 of the laws of 1918 tempt to comply with the provisions of the

act.

5. INTOXICATING LIQUORS 37-LOCAL OPTION ELECTION; STATUTORY REVIEW AS NOT CONTEST.

The statutory review of local option elections under P. L. 1918, p. 14, is not an

election contest to determine which party was successful, but a review of the legality of the entire election, to determine whether it was held according to law.

(Pamph. L. p. 437), and that sufficient of such

votes were missing to have changed the result. We are asked to reverse those decisions and declare the election valid on several grounds. All five cases were argued together, and for the most part are susceptible of consideration as one case.

[1] The first general ground of reversal urged is that the absentees were afforded an opportunity to vote at the special elections: First, because legal notice of each of such elections was given, and this charged them with

6. ELECTIONS 236- SOLDIERS' VOTE ACT notice that it was to be held; and, secondly,

NOT UNCONSTITUTIONAL.

The Soldiers' Vote Act (P. L. 1918, p. 437) is not unconstitutional, as providing a different method of counting the soldier vote from that provided in Const. art. 2, par. 1.

that having such constructive notice, they were entitled, under chapter 150 to prepare and forward unofficial ballots.

This argument rests on the claim, supported by the evidence, that the public notice of spe

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

impracticability extends, be ignored, rather than that the special election should wait until they can be complied with. We cannot take this view. The Legislature said, on January 30th, "you may have special elections for local option by taking certain procedure." February 28th it modified that and said:

"Soldiers and sailors are to have the right to vote at all primary, general and special elections, and are, with respect thereto, to be communicated with and their ballots taken in the manner now laid down."

cial election required by the Local Option Act | with the requirements of the Soldier Vote was duly given; and it may well be conceded Act, those requirements may, so far as the that, as to absentees generally who receive no notice in fact, the statutory notice is binding. As to the voters in the military and naval service the case is different. Apart from the constitutional proviso (article 2, par. 1) which it is argued applies only to elections for officers and not to referendums chapter 150, which may be called the Soldier Vote Act, declares a legislative intent to procure the military absentee vote for special elections eo nomine, and provides how it is to be procured. And in our estimation it evinces a clear intent to disregard the doctrine of constructive notice, at least so far forth as re- It did not say that, if the war department spects the Local Option Act, and to apply a should refuse to aid, any other course might rule of actual notice by mail or messenger if be pursued or the act disregarded. It is said within reasonable limits of possibility. In- that the law does not require impossibilities, stead of advertisements set up and published but the temporary condition existing should at least 15 days before the election, as in the not be classed as an impossibility. Our conLocal Option Act, we find that a list of names clusion on this point is that the requirements and addresses of men in military service is to of the Soldier Vote Act controlled, and it be made up, and, at least 20 days before the was necessary, substantially, to comply with election, blank or printed ballots are to be them. mailed to the voters, by the secretary of state (section 4), and a list of candidates, when there are candidates to be voted for, is to be forwarded in a similar manner by the municipal clerk or the secretary of state "as soon as possible" "by mail or otherwise." Two things are plain: The 15-day notice is not taken into account as sufficient in time for these absentees, and each one is to be notified, if possible, personally or by mail and to receive information sufficient, independently of all advertisement, to enable him to prepare his ballot. Nay, more: The absentee is not even charged with notice of the act itself to the same extent as a civilian; for he is entitled to receive from the secretary of state, with his ballot, either a printed copy of the act or printed directions how to prepare and transmit the ballot. Section 6, p. 439.

Under these circumstances, we think the argument of constructive notice of a special election is without force, and, of course if there were no constructive notice, actual notice cannot be presumed, and, if none, the right to cast an unofficial ballot is an empty form, in no way meeting the requirement of section 14 that the act "shall be liberally construed for the purpose of affording an oppor tunity to persons in active service * to vote at any primary, general or special

election."

[2] The next point is that, under the cond tions as they developed, it was impossible to comply with the requirements of the Soldier Vote Act. It is made plain that for military reasons information with respect to men overseas was refused by the national government. From this it is argued that, because of the temporary impracticability of compliance

[3] The next point is that this failure of compliance was only an irregularity which should not invalidate an otherwise full and fair election, particularly in the absence of evidence that the absentees would have voted against local prohibition.

We cannot concede that it was a mere irregularity. It was failure to carry out the law whereby a substantial percentage of voters must be held to have lost the opportunity to register their will. The rule urged as to burden of proof, that it should appear, and does not, that the absentees would have voted "wet," is one perhaps applicable to a contest between opposing candidates at a valid election, but not, as we view it, to an inquiry such as we are now reviewing. Under the statute (Pamph. L. 1918, p. 32, § 25), the attack is not on the result but on "the validity of the election." Such is the statutory language, and this is plain, from the fact that the matters now attacked are judicial declarations that the elections were void and orders setting them aside. In such an inquiry, the rule contended for, we think, does not apply. Allison v. Blake, 57 N. J. Law, 6, 29 Atl. 417, 25 L. R. A. 480.

The next point is that

"Qualified electors who are absent in the military service have no constitutional right to vote for (sic) such a proposition as was submitted at the several elections."

This may be conceded for present purposes. The respondents properly rely on the statute (chapter 150 of the Laws of 1918), whose intent as respects soldier votes is clear, and which is at present the law. We think no further basis of the right need be discussed.

(108 A.)

The

[4, 5] Point 5 is that the right of soldiers were rejected as not prepared in time. As and sailors to vote was subject to and super- in the Montclair case, the municipal clerk seded by federal regulations. did not move in time to have the ballots sent We see no reason why such regulations out at least 20 days before the election. At should be viewed as superseding the Soldier least, they could have been ready, if so, a Vote Act alone, without any corresponding ef-question might arise as to the inability of fect on the Local Option Act as well. the secretary of state to procure the proper same argument in another form has already addresses, which, under the circumstances, been discussed. Our answer, again, is that the seems to be not before us. We consider that Soldier Vote Act became a part of the ma- the finding by the Chief Justice was supported chinery of the Local Option Act, and, if fed- by the evidence. eral interference cut off the soldier vote, it left the Local Option Act without the means of taking effect through referendum so long as the soldier vote remained so cut off and the Soldier Vote Act remained in force.

Point 7 relates to the Dunellen case, and is that the number of absent voters not actually notified of the election was insufficient to change the result.

The election was ordered on April 19th to be held June 11th. The majority was 51, 3 less than the 54 absent electors. Of these, 7 were overseas, and what we have said above relating to the federal inhibition applies to them. As to the others, it is stipulated that the regular issues of the local paper of May 25th, May 30th, and June 6th, containing advertisements of the election, were duly mailed to 30 of them in regular course. Hence, it is argued that these 30 received actual or constructive notice of the

Point 6 relates to the Montclair and East Orange cases only, and challenges the finding of fact by the Chief Justice, who sat in those cases, that the Soldier Vote Act was not complied with, nor was every reasonable effort made to comply with it, as he held it should be. The challenge cannot be sustained. In the Montclair case the council passed a resolution, on March 14th for an election to be held April 30th, nearly seven weeks later. No notice of this was sent to the secretary of state till April 18th, reach-election in time to prepare and forward uning him on the 19th, so that it was impossible for him to do any of the things required of him at least 20 days before the election. Sections 4 and 5. The town clerk sent out no communication to the voters in service at any time. The secretary of state did send out ballots on April 22d and 23d to the number of 364. He did, probably, as well as he could, but was hopelessly late through no fault of his own. There were about 800 men in service, and say 70 per cent. of them voters; the stipulation of facts says 60 to 80 per cent.; probably, 500. The campaign committee also wrote to voters in service; 64 ballots were received, of which 31 had to be rejected. The majority for prohibition, with about 450 potential votes outstanding, was 19. How it can be said that all reasonable effort was made to get in these votes, when no one moved for five weeks after the election was ordered, we are at a loss to understand.

In the East Orange case the argument proceeds upon what we conceive to be the false assumption, as already noted, that the contest is over the number of votes pro and con, rather than over the validity of the election. It appears that there were about 1,000 men in the service, only 500 ballots were printed, and these mailed on April 30th, 7 days before the election. Proof is lacking as to how many of the 1,000 were qualified voters, but it is hardly conceivable that, in view of the rules of enlistment and draft, there were not many more than the 114 whose ballots were received and counted, and 90 whose ballots

official ballots, though no ballot was sent to any of the 54 by the secretary of state, or the municipal clerk; no copy of the Soldier Vote Act, and no printed directions how to prepare ballots as therein required. There was no constructive notice, because, as we have said, the Soldier Vote Act makes that rule inapplicable. As to actual notice, if it be said the presumption of due receipt of a letter mailed in peace time is to apply to fourth-class mail in war time and during a confusion in the mail service, which is matter of common knowledge, it does not follow that the recipients read the papers through and saw the notices of election printed therein. It strains the doctrine of presumption to the breaking point to charge actual notice on the soldier because there was mailed to him a folded newspaper containing such notice in its column with nothing to call attention to it. Moreover, if he should see it, yet he had no knowledge how to prepare and send in his unofficial ballots. No official ballots were sent, either printed or blank; no copies of the act, and no instructions. In lieu of this, prosecutors rely on the weekly paper from home. We think their reliance is misplaced.

[6] 8. Lastly, and as an additional reason filed, after the others, it is said the Soldier Voting Act is unconstitutional, because it requires the secretary of state, on receiving the returned ballots from voters, to transmit them for counting to the county board of elections instead of the local board. The constitutional language is:

"The Legislature shall have power to pro- | 4. PARTITION 71 vide for the return and canvass of their votes in the election districts in which they respectively reside." Const. art. 2.

BLAISDELL et al. v. PEAVEY. (No. 1577.) defendant recovered judgment against her)

(Supreme Court of New Hampshire. Strafford. to administer the deceased's estate as inJune 3, 1919.)

(108 A.)

NEGLIGENCE IMPUTED TO MASTER.

Negligence of servants in the course of their employment is to be imputed to their master.

ment creditor may levy on the goods and es- 13. MASTER AND SERVANT 304-SERVANT'S tate of the deceased in the hands of his administrator, they do not hold, as the plaintiffs contend, that when the estate is insolvent, one who has levied secures a preference over the other creditors. All they hold in so far All they hold in so far as the question of preference is concerned is that a levy cannot be attacked collaterally. Lyford v. Dunn, 32 N. H. 81, 83.

The question whether the plaintiffs' levy may be attacked in that way is not, however, raised by their exception, for, as the case is understood, the court treated the defendant's intervention in her representative capacity as a direct attack; that is, as a motion to bring the original action forward and vacate the levy. It is illegal for the administrator of an insolvent estate to satisfy the claims of part of the creditors. Coleman v. Hall, 12 Mass. 570.

[2-4] If it is illegal for an administrator to prefer part of the creditors, it follows that they cannot legally secure a preference by reducing their claims to judgments and levying on the goods of the deceased in the hands of the administrator. Any levy, therefore, which gives one of the creditors of an insolvent estate a preference is void as to the other creditors. Since this is so, the question raised by the plaintiffs' exception is whether the court can vacate a voidable levy if it finds that that is necessary to prevent injustice; and that it may is not an open question. It is immaterial, therefore, in so far as the question we are considering is concerned, whether the insolvency proceeding is valid or invalid, in so far as the plaintiffs are concerned, for the general finding for the defendant will be held to include a finding that the plaintiffs' levy gives them a preference over the other creditors.

Plaintiffs' exception overruled.
All concurred.

(7 Boyce, 454)

FAHEY v. NILES. (Superior Court of Delaware. New Castle. Dec. 6, 1918.)

WHAT CONSTITUTES

1. NEGLIGENCE 4
"ORDINARY CARE."
Negligence is the want of ordinary care;
that is, of such care as a reasonably prudent
and careful person could exercise under all the

circumstances.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Ordinary

Care.]

2. NEGLIGENCE 121(1)-NEVER PRESUMED. Negligence is never presumed, but must be proved by the one asserting it.

4. NEGLIGENCE 134 (2)-How PRoved. Negligence may be proved by direct or circumstantial evidence.

5. EVIDENCE 587-"CIRCUMSTANTIAL EVIDENCE."

Circumstantial evidence is proof of facts from which the fact in issue follows as a natural or very probable conclusion.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Circumstantial Evidence.]

6. NEGLIGENCE 22-CARE REQUIRED IN USE

OF DANGEROUS INSTRUMENTALITIES.

A person using dangerous instrumentalities, as gasoline torches, to remove paint from dwelling, must exercise due and reasonable care to prevent setting it on fire; otherwise, he is liable for consequent damages.

Action by Patrick Fahey against John B. Niles to recover damages for injury to and destruction of personal property by fire and water. Verdict for plaintiff.

BOYCE and RICE, JJ., sitting.

David J. Reinhardt, of Wilmington, for plaintiff.

Reuben Satterthwaite, Jr., of Wilmington, for defendant.

Error by defendant to the Supreme Court was subsequently dismissed upon application of the parties.

The plaintiff introduced testimony to show that about half past 3 o'clock in the afternoon of the 21st of August, 1917, one of the painters employed by defendant's contractor in removing paint from plaintiff's house, which defendant had purchased, came into the kitchen of plaintiff's residence with a bucket, saying, "We have a slight fire," and, thereupon, got some water and went out with it in the direction of the ladder leading up to the scaffold on which the painters were working burning the paint with gasoline torches from the cornice underneath the mansard roof, the cornice being between the top of the second floor and the bottom of the third floor at the southerly part of the house, directly over the kitchen. One witness testified that she saw smoking rags lying near the cellar door underneath the

scaffold. About the same time, the painters the fire among themselves. About half past came down and were overheard discussing 6 o'clock, the same evening (the painters having left at 5), while the family of the plaintiff were eating supper, a cry of fire was heard and members of the family ran

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes