For the prosecutors, Israel B. Greene, Morris M. Schnitzer, Daniel G. Kasen, Benjamin Coe and Harry E. Stern.
For the respondent, James F. X. O'Brien and Simon Englander.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
DONGES, J. On September 21st, 1939, there was filed with respondent, as city clerk of the city of Newark, a verified petition seeking an election to permit the voters of Newark to vote upon the question whether or not they wish to adopt the city manager form of government. This writ of certiorari, allowed October 14th, 1939, seeks to set aside the "decision or determination" of the city clerk, "refusing to call an election of the legal voters of the City of Newark, in the County of Essex and State of New Jersey to vote upon the adoption or rejection of the 'The Municipal Manager Form of Government Law' (R.S. 1937, Title 40, p. 354, &c., approved December 20th, 1937), the amendments thereof and supplements thereto, as and for the government of said City of Newark, as you were requested to do by petitions filed with you by the
prosecutors on September 21st, 1939, containing 25,170 signatures of legal voters of the City of Newark, as alleged."
In the situation presented by the admitted filing of the petition and the failure of the clerk to act thereon after twenty-three days, the conduct of the clerk is tantamount to a refusal to call the election within the time provided by statute. R.S. 40:79-1 et seq. Coyte et al., v. King et al., 11 N.J. Mis. R. 777.
It is not disputed that 25,154 signatures are upon the petition. Nor is it disputed that the number of persons voting at the last preceding election for members of the general assembly was 113,847, and that fifteen per cent. of that number, as required by the statute (R.S. 40:80-1) was 17,076. On the taking of testimony it was made to appear that doubts were raised as to the eligibility of 2,748 signatures for various reasons and of 586 as duplications. Deducting these from the petitions, as filed, leaves the total of 21,820 signatures on the petitions, or more than the fifteen per cent. required by statute.
The primary question to be determined is as to the force and effect to be given to the petition. The prosecutors insist that the petition when filed requires the calling of the election and that the burden is upon the clerk to show inadequacy of the petition. The respondent urges that the burden is upon the petitioners to establish the sufficiency of the petition and that they have failed to carry that burden in this case.
The statute (R.S. 40:80-2) provides: "Upon the filing of such petition or request in writing with the municipal clerk, he shall forthwith call an election, * * *." In Balm v. Cape May, 3 N.J. Mis. R. 58; affirmed, 101 N.J.L. 400, Chancellor Campbell, then a Supreme Court justice, held that the duty was upon the clerk to act in accordance with the statute and call the election, unless it appeared that the petition was insufficient. It was said: "The statute nowhere, that I can discover, gives the municipal clerk any discretion. When placed in his hands the petition is filed under the statute, ...