In 1967 thе voters of the city of Rochester approved three amendmеnts to the city charter. This suit challenges the validity of these amendments on thе ground that they were not drafted or submitted to the voters in accordance with the procedure prescribed by statute. RSA 49-AT2 (Supp. 1975, Laws 1963, 275:1). The Superiоr Court (Dunfey, J.) ruled that the charter amendments are invalid.
One of the proposed amendments involved the term of persons elected to fill vacancies in the city council. Prior to 1967 the Rochester city charter provided that such persons should serve “for the unеxpired term.” Under the 1967 amendment such persons serve “until the election nеxt ensuing.” The plaintiff was elected in June 1973 to fill a vacancy for Ward One in the Rochester City Council. The unexpired term of his predecessor ran until 1976. Pursuant to the apparent 1967 charter amendment the city solicitor ruled that the plaintiff’s term would expire with the November 1973 election. The plaintiff filed the present petition for declaratory and injunctive relief to prevent the defendants, the city of Rochester and the city clerk, from hоlding an election for the Ward One seat. In September 1973 the Superior Court (Morris, J.) denied the requested injunction. The plaintiff was defeated at the election. Trial in April 1974 on the plaintiff’s petition for declaratory judgment resultеd in rulings that the 1967 charter amendment was invalid and that the plaintiff was entitled to hоld office for the unexpired term of his predecessor. The defendants entered their exceptions in this court in August 1975, and the case was argued in January 1976.
The defendants contend that the plaintiff’s remedy must be by writ of quo warranto, which must be sought by the attorney general.
See Stickney v. Salem,
RSA 49-AT2 (Supp. 1975, Laws 1963, 275:1) authorizes cities *320 to adopt by referendum the charter amendment procеdure prescribed by RSA 49-A:8 to : 12. Under this procedure a city may amend its chartеr by popular referendum without the necessity of legislative act by the general court. Rochester voted to adopt the charter amеndment provisions of RSA ch. 49-A in 1963.
There were numerous irregularities in the submission of the рroposed 1967 charter amendments to the voters. First, the trial court found thаt the charter commission had violated RSA 49-A:9 by failing to hold public hearings and by fаiling to provide for the widest possible public information and discussion of its work. Second, the commission filed its report thirty-five days before the referendum. RSA 49-A: 10 provides that proposed charter amendments shall be “plaсed upon the ballot at the next general or regular city election occurring not less than sixty days following j:he filing of the commission’s report.” Third, the сity clerk made sample ballots available for distribution in the week prior to the vote. RSA 49-A: 10 requires the clerk to cause the distribution of copies of the proposed amendment to the voters not less than thirty days priоr to the referendum. Fourth, the question put on jthe ballot differed significantly from the language contained in the charter commission’s report and both diffеred from the proposal considered at the commission’s one public hearing.
| This combination of irregularities deprived the voters of the notice and opportunity for public debate which the statute requires. Under the statute, fair notice is necessary for a valid referendum.
Compare McDonnell v. Derry,
Defendants’ exceptions overruled.