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act, whereby the prosecutor was dispossessed of certain premises situate in the town of Boonton, in the county of Morris. The sole reason for reversal is as follows:

"Because the said justice of the peace had no jurisdiction to hear and determine the cause, because, at the time said proceedings were commenced, there was a District Court in the county of Morris where said premises are situated, and by virtue of the act entitled 'An act to amend an act entitled “A further supplement to an act entitled 'An act concerning landlords and tenants,'” approved March 27th, 1874, which supplement was approved March 4th, 1903; which act was approved April 8th, 1910, the jurisdiction of a justice of the peace in landlord and tenant actions to recover possession of leased premises is taken away in counties where there is a District Court, and as there was a District Court in Morris county at the time the proceedings were had before the justice (Pamph. L. 1909, p. 287), the justice had no jurisdiction to try the case and his actions were void and illegal."

The only question raised by this reason is whether or not the justice of the peace had jurisdiction, and that in turn depends upon whether at the time he assumed jurisdiction there was in the county of Morris a District Court established by law. This is the test made by the amendment to “An act concerning landlords and tenants," approved April 8th, 1910 (Pamph. L., p. 233), which reads as follows:

“Any lessee or tenant at will or at sufferance or for a part of a year, or for one or more years, of any houses, lands or tenements, and the assigns, under-tenants or legal representatives of such tenant or lessee, may be removed from such premises by any district court in the county where such premises are situated, or, if such premises do not lie within a county in which there is a district court, then by any justice of the peace of the county where such premises are situated in the manner hereinafter prescribed in the following cases; provided, that this act shall not be construed so as to give justices of the peace jurisdiction where district courts are established by law."

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On April 1st, 1910, "An act to incorporate the first judicial district of the county of Morris” (Pamph. L. 1909, p. 287) took effect. This provided for the establishment of a District Court in the county of Morris whose jurisdiction should comprise certain parts of that county not including the town of Boonton.

On April 6th, 1910, Oliver K. Kay, Esq., was appointed judge of this District Court, but did not qualify. On April 8th, 1910, the amendment to the Landlord and Tenant act, already quoted, was passed and took effect immediately. By force of this amendment jurisdiction to remove tenants was conferred upon any District Court in the county where the premises were situated and deprived justices of the peace of jurisdiction where such a District Court had been established by law.

On April 13th, 1910, and before the judge of the District Court had qualified, the present proceeding was commenced before the justice of the peace, and on April 16th, 1910, the judge of the District Court took his oath of office.

If the justice acquired jurisdiction on April 13th the present proceeding must stand. He did acquire jurisdiction unless at that time a District Court had been established by law in Vorris county. A judge had been appointed but had not taken the oath of office; so that the dispositive question is whether, within the meaning of the amendment to the Landlord and Tenant act, a District Court was established by law prior to the time such a tribunal acquired the faculty of exercising the jurisdiction conferred upon it by this amendment. We think that a District Court, within the meaning of this act, was not established by law until it had acquired the lawful right to exercise its judicial functions. The plain purpose of the legislature in requiring the ancient jurisdiction of the justice to give way to the new one created by the amendment, was that as soon as access to the new tribunal was possible the older jurisdiction should be abandoned, but not before. Until therefore a District Court was so established that it could lawfully exercise jurisdiction, the

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existing jurisdiction of the justice was not superseded. There was no purpose that an interval should be left during which no tribunal should have jurisdiction to disposses tenants.

Such an interval may occur by death or other cause after the establishment of the new jurisdiction; that, however, is a result of the statute, and there is no indication that such a condition was intended to exist before the act by its own term took effect.

We conclude, therefore, that the jurisdiction of the justice existed at the time it was assumed in the present case, and hence that the proceedings brought up by the prosecutor should be affirmed.

THOMAS A. MATHIS, RELATOR, v. WILLARD P. VOORHEES.

Argued February 1, 1911-Decided February 9, 1911.

A recount of a part of the votes cast at an election for state senator

in the county of Ocean was ordered by a justice of the Supreme Court who was present during the counting of the ballots by the county board of elections by which it appeared that an error had been made sufficient to change the result of such election. whereupon the relator moved the said justice to revoke the certificate of election already issued and to issue in its place a certificate in favor of the relator, as the party found to have received a majority of the votes cast at such election, which the said justice refused to do upon the ground that the ballots so counted in his presence were not the votes cast at such election. l'pon an application for a writ of mandamus compelling the said justice to make such orders—Held, that for the reasons stated in the opinion, the application should be denied.

On rule to show cause.

This is an application for a mandamus compelling Willard P. Voorhees, a justice of the Supreme Court, who had ordered a recount of the votes cast at an election, to revoke the

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certificate of election that had been issued to George C. Low as state senator for Ocean county, and to issue in its place a certificate to the relator, Thomas A. Mathis, as the party found to have received a majority of the votes cast at the election for said office.

From the written statement made by Mr. Justice Voorhees of the reasons for his refusal to make such orders the following excerpts are pertinent to the present application:

"At the general election held on November 8th, 1910, in the county of Ocean, George C. Low was the regularly nominated Democratic candidate for state senator, and Thomas A. Mathis the regularly nominated Republican candidate for that office.

“Within the time limited by the Election act after such election, a petition was presented to me by Mathis, who had, according to the canvass and statements of the result of the election made by the boards of registry and election of said county, failed of election.

“This petition set forth that such returns showed that throughout the entire county George C. Low had received 2,572 votes, and Thomas A. Mathis 2,491 votes for the office of state senator, resulting upon the face of such returns in the election of George C. Low by a majority of 81 votes.

“The petition further alleged the belief of the petitioner, upon credible information, that errors had been made by the election boards for the First and Second Districts of Lakewood township, and for the township of Dover, in counting the ballots cast at said election.

“The petition then prayed for a recount of the ballots cast in the three above-mentioned election districts. An order was made as prayed for, and the recount has been held. At it, the First District of Lakewood was first counted and the township of Dover secondly counted. The result at the termination of the examination of these two districts was practically unchanged, being a net loss of but one vote for Low.

"The Second District of Lakewood was lastly taken up.

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“The statement of the result of the election for senator in this district gave Low.

260 votes. "Gave Mathis

214

"Low's majority

46 “The whole number of votes on the poll list...... 187 “Rejected ballots

10

"'pon opening the box it was found that the ballots were upon two strings, the first string contained ballots numbered from one to three hundred consecutively; the second string from three hundred and one to four hundred and eightyseven consecutively. The first two hundred ballots showed that there was a difference of but five votes between the senatorial candidates; of the third hundred, Low received 23 and Mathis 66. The first one hundred votes of the second string gave Low 53 votes and Mathis 36, a difference of 17, while of the last 87 votes of the string, only 15 votes were counted for Low and 65 for Mathis. The apparent discrepancies in totals arise from rejected ballots and those otherwise not counted, but not varying the majorities more than three or four votes. The ballots last strung were mostly straight tickets without change by writing or paster, clean and folded alike. The two tally sheets, which agree with each other, show 100 straight Democratic tickets and sixty-two straight Republican tickets.

“From the contents of the box, the bunching of the Republican votes upon the latter part of each string, from the tally sheets, from the appearance of the ballots lastly strung upon each string, I am satisfied that the ballots counted under judicial direction were not the identical ballots cast at the election.

"I shall, therefore, withhold the certificate, on the ground that the votes counted under my order are not the votes cast at the election.”

The statutory provision under which this application is

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