On petition for writ of mandamus.
For the relators, Israel B. Greene.
For the respondent, James F. X. O'Brien.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The instant application is for a peremptory mandamus commanding the city clerk of Newark to call a special election
on the question of whether the municipal manager form of government shall be adopted by the voters of that municipality and for an injunction restraining the city clerk from holding such election on the date fixed by him, i.e., February 20th. We have recently passed upon the question as to the sufficiency of the petition filed by the Citizens Union of the city of Newark, the object of which was to bring about a referendum on this question. Our determination was filed on February 5th, 1940. Fenias v. Reichtenstein, 124 N.J.L. 196.
The affidavit upon which this application rests recites that the action of the clerk in calling the election for February 20th, is contrary to the pertinent statute -- R.S. 40:80-2, et seq.
The affidavit further recites that respondent clerk unjustifiably delayed the calling of the election and that "his sudden celerity in calling it for February 20th, is surprising;" that the people of Newark are entitled to a "reasonable time within which to become familiar with and discuss the merits of the proposed new form of government * * *," and that the time fixed for such election "is entirely too short for that purpose."
The relators further take the position that the clerk was without power or authority to do any act in the matter of calling an election once our writ of certiorari was allowed and indeed until a rule for judgment was signed and filed, on the ground that the writ acted as a stay, but this we do not conceive to be sound. The writ was directed at the nonaction of the clerk. He might abandon that recalcitrant attitude, express his willingness to call the election, with the result that the question under review would be moot, or at least unnecessary for the court to determine.
Now it appears that when the clerk was advised that this court held the petition was sufficient to accomplish the purpose for which it was filed, he forthwith did set a date for the election. The statute, supra, provides that upon the filing of such petition with the municipal clerk he shall forthwith call an election to be held on the fourth Tuesday following the date of the filing of the petition with him. The petition
was filed months ago; as it happens, the clerk should have called the election on the fourth Tuesday thereafter, ...