61 A.2d 905 | N.J. Super. Ct. App. Div. | 1948
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *593 Sebastain P. Vaccaro, who claimed to be a voter and resident of the City of Asbury Park, presented to the New Jersey Supreme Court in August, 1948, a petition for a declaratory judgment adjudging his "rights, status and other legal relations" in connection with a petition stated to have been signed by qualified voters in excess of twenty per centum, of the voters of Asbury Park. It is alleged in the petition that a "controversy" has arisen in Asbury Park over the petition signed by the qualified voters, and whether the same should be filed and an election to proceed thereon, under R.S. 40:70-1 et seq., as claimed by the petitioner, or under R.S. 40:85-1 et seq., as alleged by those in opposition.
The matter in controversy was assigned to this Court for determination, before the Mayor and other city officials were ordered by the Supreme Court to be joined as parties to the proceeding, and since there has been joined, upon application, a number of legal voters in the municipality who support the petition. On September 30, 1948, an answer was filed by the Mayor and other officials made parties, in which it was denied thatR.S. 40:70-1 et seq., had any application for the reasons alleged; that said statutes "deal with the establishment for the first time of the commission form of government; whereas the pertinent statutes are those dealing with the procedure for the abandoning of municipal form of government adopted under R.S. 40:85-1 et seq." The answer further charges that the relief prayed for should not be granted because the petition for a change in government was not filed; that the petitioner, Sebastian P. Vaccaro, is not a resident and qualified voter of Asbury Park and has no rights or legal relations that are effected and that he has no right to file the application for a declaratory judgment.
Depositions were taken and oral arguments were heard. During this period the petition with the signatures of the legal voters was presented to the City Clerk, who refused to retain the same. Depositions relating to petitioner's legal residence disclosed that the petitioner had a business office in Asbury Park, with rooms above, which he claimed as his "legal residence", while his wife and children lived continuously *595 in a house owned by the petitioner and his wife in an adjoining municipality, in which the telephone and other utility services were listed in the petitioner's name, and paid for by him. It also was shown that he stayed quite frequently at the address outside of Asbury Park. During an oral argument, on this subject, it was conceded that residence was not pertinent to the issue since legal residents of Asbury Park were now parties in the case favoring the petition, and it was admitted by the answering defendants that the petition was presented to the City Clerk. Though these defendants have consented to the elimination of their objection that the petitioner is not a legal resident, and the Court has consented thereto, it should not be understood that the Court encourages a split loyalty in community or family life.
On October 21, 1948, there was filed with the court final briefs and a stipulation signed by all the parties in the case, including the interveners; in which it is stipulated the latter are residents and qualified voters of Asbury Park; that the question of the residence of the petitioner, Sebastian P. Vaccaro, is not material to the determination of the issues in the case and that the City of Asbury Park was governed by a commission form of government from the month of March, 1915 to December 5, 1933, and since the last mentioned date to the present time under the Municipal Manager Law.
The only issue remaining for determination is whether the petitioners who seek to change the City's present form of government should proceed under statute R.S. 40:70-1 et seq., or R.S. 40:85-1 et seq. *596
A comparison of the statutes last mentioned will help to determine which, if any one of them, controls absolutely the procedure to be followed in effecting a change of government from a Municipal Manager form to a Commission form.
The following are pertinent The following are pertinent
chapters of the Commission chapters of the law relating
Government Law: to the abandonment of Municipal
Manager form of government:
R.S. 40:70-3 — "All municipalities
which shall have heretofore R.S. 40:85-1, as of January
adopted the provisions of 22, 1945 — "Any municipality
the act entitled `An act relating which shall have operated for more
to, regulating and providing than four years under the
for the government of cities, provisions of the act entitled
towns, townships, boroughs, `An act relating to, regulating
villages and municipalities and providing for the government
governed by boards of of municipalities, except
commissioners or improvement counties, by a municipal council
commissioners in this and a municipal manager,' approved
state' (title as amended), approved March nineteenth, one thousand
April twenty-fifth, one nine hundred and twenty-three,
thousand nine hundred and or under the provisions of this
eleven, as amended and supplemented subtitle, or both, may at any
and all municipalities general election abandon such
which shall hereafter organization thereunder and may
adopt the provisions of chapters resume the form of government
70 to 76 of this title (Sec. under the law under which it
40:70-1 et seq.), shall have the was being governed when said act
commission form of government or this subtitle was adopted.
and be governed in the The procedure shall be as
manner hereinafter in said hereinafter in this chapter
chapters 70 to 76 set forth." provided.
R.S. 40:71-1 — "The legal voters "The provisions of this chapter of any municipality not shall not apply to any governed by chapters 70 to 76 municipality which immediately of this title (Sec. 40:70-1 et prior to the adoption seq.) may adopt said chapters of said act or of this subtitle, at an election held in such had operated under the provisions municipality, to be called by the of chapters 70 to 76 of this municipal clerk upon request title (Sec. 40:70-1 et seq.). or petition in writing of twenty Any such municipality may revert per cent of the persons to its former form of government qualified to vote at the last by electing to do general election as shown by the registry of qualified voters used at such election." *597 so under the provisions of said R.S. 40:71-2 — "Upon the filing chapters 70 to 76." of the petition or request in writing with the clerk, he On January 23, 1945, the shall forthwith call an election, last stated paragraph, in to be held on the third quotations, was stricken from Tuesday following the date of R.S. 40:85-1 as amended by P.L. the filing of the petition, and 1947, Chapter 2, p. 12. shall cause public notice of the time and place of holding the same to be given by advertisement signed by himself and set up in at least twenty different places in the municipality and published for at least six days previous to the time of the election in at least one newspaper printed and published in the municipality, and if there be no such newspaper then in a newspaper circulated therein." It appears that the confusion resulting in the controversy in this case was caused by the amendment to R.S. 40:85-1 in P.L. 1947, C. 2, by eliminating the exception contained in the last paragraph of the original act.
COMPARISON OF COMMISSION
GOVERNMENT LAW AND MUNICIPAL MANAGER
LAW AS TO ELECTIONS
COMMISSION GOVERNMENT MUNICIPAL MANAGER LAW LAW IN RE ABANDONMENT
1. Calling Election 1. Calling Election
40:71-1; 40:71-2 — Petition 40:85-7 — Clerk has ten days filed with clerk. Clerk to examine petitions. Then forthwith calls election for certifies them to municipal third Tuesday after filing council. petitions. 40:85-8 — Municipal council passes resolution and forwards same to county clerk. 40:85-9 — County clerk places question on ballot at next general election. *598
2. Time of Taking Effect 2. Time of Taking Effect
40:75-1. If voters vote to 40:85-10. If voters vote to adopt commission government, abandon municipal manager then first commissioners act, the abandonment takes are elected fifth Tuesday effect January first of the following adoption election, second year after the election. and take office on first Tuesday after their election.
3. Nomination of New Candidates 3. Nomination of New Candidates for Office for Office
40:75-3. Candidates for 40:85-11. Candidates nominated commissioner are nominated at primary election in by petition consisting of year after the general election individual certificates signed at which municipal by one half of one per cent manager law was abandoned. of the voters at the last general election.
4. Election of New Officials 4. Election of New Officials
40:75-1. First officials 40:85-11. After general elected 5th Tuesday after election at which vote to vote to adopt commission abandon is adopted and in government. the primary election of the 40:75-2. Commissioners succeeding year, officials are elected 2nd Tuesday in May nominated for new form of every 4th year. Hold office government. They are elected for four-year terms. at general election and take office January 1 of the 2nd year following vote to abandon. Our present Constitution provides, in section VII, paragraph 5: "No law shall be revived or amended by reference to its title only, but the act revived, or the section or sections amended, shall be inserted at length. No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of the act or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act." R.S. 40:85-1 et seq., does not amend 40:70-1 et seq., in accordance with the Constitution as above stated. R.S. 40:85-1 as amended by P.L. 1947, C. 2, removed the exception by which R.S. 40:70-1 et seq., was without the provisions of the original act and did not by any *599 provision declare that R.S. 40:70-1 et seq., was amended or controlled by R.S. 40:85-1.
The evident reason for the adoption of the above stated provision in the Constitution was to prevent covert and incautious legislation; Baldwin Lumber Co. v. Moskowitz,15 N.J. Misc. 438. Covert and incautious intentions should not be presumed. The additional legislation should be considered as an improvement without any alteration by implication or otherwise ofR.S. 40:70-1 et seq. So far as reasonably possible where two statutes are not entirely conflicting they should be harmonized and each given force and effect to that end. The legislature in enacting R.S. 40:85-1, as amended, evidently had this intention as the act is in permissive form; that is to say, it provides that a municipality under R.S. 40:85-1 "may at any general election abandon such organization" and "may resume" its former form of government.
A computation of the time required to adopt a Commission form of government according to the diagrammatic comparison above set forth, under R.S. 40:71-2 et seq., and until the newly elected Commissioners could take office would be nine weeks. Under R.S. 40:85-1 et seq., from the time of filing the petition, in this case, until the Commissioners took office would be two years and two months. It is not to be presumed that undesirable consequences were intended by the enactment of R.S. 40:85-1 et seq.; nevertheless, the results which will follow one construction or another is often a potent factor in its proper interpretation, 50 Am. Jur. p. 372, Sec. 368. It is reasonable to presume the Act last mentioned was intended to have the most beneficial operation that the language permits. The permissive character of the Act supports this conclusion. The statutes under consideration are permissive and not mandatory and relate to the same subject matter and therefore should be construed in pari materia.
In White v. Hunt,
The defense that R.S. 40:70-1 et seq., pertains to "establishment for the first time of the commission form of government" is without merit, as the statute referred to does not contain such restriction. The comparison previously set forth as to methods of election, under both statutes, illustrates the advantages and disadvantages of each, depending on one's point of view. They both affect the political rights of the parties interested. Under all the facts and law involved, a liberal and reasonable view should be taken to preserve those rights. It is the declared judgment of the Court that R.S. 40:70-1 et seq., is the statute that governs in this case and that an election be held in accordance therewith.
