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In re Application of Sebastian P. Vaccaro

New Jersey Superior Court, Law Division

Decided: October 29, 1948.


On application for declaratory judgment.

Brown, A.j.s.c.


[1 NJSuper Page 594]

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

[1 NJSuper Page 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.

[1 NJSuper Page 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 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 in this chapter

ers of any municipality not provided.

governed by chapters 70 to 76

of this title ( Sec. 40:70-1 et "The provisions of this chap-

seq.) may adopt said chapters ter shall not apply to any

at an election held in such mu- municipality which immedi-

nicipality, to be called by the ately prior to the adoption

municipal clerk upon request of said act or of this subtitle,

or petition in writing of twen- had operated under the provi-

ty per cent of the persons sions of chapters 70 to 76 of

qualified to vote at the last this title ( Sec. 40:70-1 et seq.).

general election as shown by Any such municipality may

the registry of qualified vot- revert to its former form of

ers used at such election." government by electing to do

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. 40:71-2 -- "Upon the fil- ernment:

ing of the petition or request

in writing with the clerk, he so under the provisions of said

shall forthwith call an elec- chapters 70 to 76."

tion, to be held on the third

Tuesday following the date of On January 23, 1945, the

the filing of the petition, and last stated paragraph, in quo-

shall cause public notice of the tations, was stricken from R.

time and place of holding the S. 40:85-1 as amended by P.

same to be given by advertise- L. 1947, Chapter 2, p. 12.

ment signed by himself and

set up in at least twenty dif-

ferent places in the municipal-

ity and published for at least

six days previous to the time

of the election in at least one

newspaper printed and pub-

lished in the municipality, and

if there be no such newspaper

then in a newspaper circulated


[1 NJSuper Page 597]

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.







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 for-

wards same to county clerk.

40:85-9 -- County clerk plac-

es question on ballot at next

general election.





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 govern- abandon municipal manager

ment, then first commission- act, the abandonment takes

ers are elected fifth Tues- effect January first of the

day following adoption elec- second year after the elec-

tion, and take office on first tion.

Tuesday after their election.

3. Nomination of New Candi- 3. Nomination of New Candi-

dates for Office dates for Office

40:75-3. Candidates for 40:85-11. Candidates nom-

commissioner are nominat- inated at primary election in

ed by petition consisting of year after the general elec-

individual certificates signed tion at which municipal

by one half of one per cent manager law was abandoned.

of the voters at the last gen-

eral 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 of- government. They are elect-

fice for four-year terms. ed at general election and

take office January 1 of the

2nd year following vote to

abandon. [1 NJSuper Page 598] 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

[1 NJSuper Page 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 of R.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 , 6 N.J.L. 415, 417, Chief Justice Kinsey stated: "In the construction of the acts of the legislature, it has ever been held a sound and wholesome rule, that when divers laws are made relating to one subject, the whole must be considered as constituting one system, and mutually connected with each other." See also In re Book's Will , 90 N.J.

[1 NJSuper Page 600]

Eq. 549. In Public Service Electric Co. v. Camden , 118 N.J.L. 245, it is stated that statutes which are in pari materia are to be construed together so as to effectuate a general legislative policy.

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.


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