On application for declaratory judgment.
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 that R.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
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.
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 Mu-
nicipal Manager form of gov-
R.S. 40:70-3 -- "All municipal- ernment:
ities which shall have hereto-
fore adopted the provisions of R.S. 40:85-1, as of Janu-
the act entitled 'An act relat- ary 22, 1945 -- "Any munici-
ing to, regulating and provid- pality which shall have oper-
ing for the government of cit- ated for more than four years
ies, towns, townships, bor- under the provisions of the
oughs, villages and municipal- act entitled 'An act relating
ities governed by boards of to, regulating and providing
commissioners or improve- for the government of munic-
ment commissioners in this ipalities, except counties, by a
state' (title as amended), ap- municipal council and a mu-
proved April twenty-fifth, one nicipal manager,' approved
thousand nine hundred and March nineteenth, one thou-
eleven, as amended and sup- sand nine hundred and twen-
plemented and all municipali- ty-three, or under the provi-
ties which shall hereafter sions of this subtitle, or both,
adopt the provisions of chap- may at any general election
ters 70 to 76 of this title ( Sec. abandon such organization
40:70-1 et seq.), shall have the thereunder and may resume
commission form of govern- the form of government under
ment and be governed in the the law under which it was
manner hereinafter in said being governed when said act
chapters 70 to 76 set forth." or this subtitle was adopted.
The procedure shall be as
R.S. 40:71-1 -- "The legal vot- hereinafter ...