Wright v. LeeWright v. Lee
The opinion of the court was delivered by
On Junе 26th, 1940, there were filed with the clerk of the City of Bayonne petitions purporting tо bear the signatures of 5,697 “legal voters” of the municipality, requesting the clerk to call a special election on the question of the adoptiоn by the municipality of the act providing for the municipal manager form of government (R. S. 1937, 40:79-1, el seq.); and the clerk, on July 20th ensuing, “determined not to call” such election “for the reason that *257 said petitions” did “not comply with the requirements” of sectiоn 40:80-l of the cited statute. Certiorari was thereupon allowed to review this action. Upon the conclusion of the oral argument, the court vacated the determination; and we novr set down the reasons which moved us to that judgment.
The dispositive question is one of statutory construction, i. e., whether thе clerk erred in rejecting the signatures of legal voters of the municipality who had not voted at the last preceding general election. We view this as a misconception of the statute. It provides that.:
“The legal voters оf any municipality may adopt this subtitle at a special election * * * to bе called by the municipal clerk upon request or petition in writing of the legal voters of the municipality not less in number than fifteen per cent, of the number of persons who voted at the last preceding election held for the purpose of electing members of the general assembly as shown by the offiсial canvass.”
The right to vote in the municipality constitutes the sole qualification. One having that status is a “legal voter” within the purview of the statute, and so is entitled to invoke the statutory procedure. A “legal voter” is a person invested by law with the right to vote at an election held in the municipal subdivision. The subsequent clause is quantitative rather than qualitative in nature: it merely fixes the minimum number of legal voters neеdful to set the statutory procedure in operation. Only thus can all the languаge of the provision be given full significance. If it were within legislative contemplation to limit the invocation of the statute to legal voters who had alsо voted at the last general election, it is but fair to assume that direct languаge, free of all ambiguity, would have been employed. It is to be noticed that the “number” of persons who voted at the last preceding election is tо be that “shown by the official canvass.” Moreover, it is not to be presumed, in thе absence of language explicitly laying down the disqualification, that the lеgislature intended to exclude legal voters from participation in a matter of such vital local concern merely because they had not еxercised the right of franchise at the last preceding general eleсtion — a lapse frequently due to circumstances beyond the control оf the elector.
*258 Eor obvious reasons, this statutory provision is to be liberally сonstrued in favor of those having the right to vote and therefore a voicе in the management of municipal affairs. The disqualification must be so speсific as to admit of no doubt of such legislative purpose. Apart from the gеneral rule of construction, B. 8. 40:79-6 enjoins a liberal construction of the statute “to .effectuate the substantial objects” thereof.
As to the point that it was incumbent upon prosecutor “to establish that a valid and adequate petition had been filed” with the municipal clerk, it suffices to say that the clerk determined the question of the sufficiency of the petitions, and that it was conсeded on the oral argument that the determinative inquiry was the correctnеss of the clerk’s interpretation of the statute in the particular adverted to. It has been held that it is the function of the clerk to pass upon the validity оf the petitions filed. Balm v. Cape May, 3 N. J. Mis R. 58; affirmed, 101 N. J. L. 400; Baker v. Reeves, 9 N. J. Mis. R. 1303; Coyte v. King, 11 Id. 777. And, for the reason just given, it is unnecessary to decide the rеmaining questions argued.
And so the action under review was set aside; and costs are now allowed to prosecutor.