On appeal from the Law Division of the Superior Court.
For affirmance: Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal: None. The opinion of the court was delivered by Vanderbilt, C.J.
The City of Passaic is a municipality having a commission form of government under the provisions of the Walsh Act (R.S. 40:72-1 et seq.) and the plaintiffs are all citizens, residents and qualified voters of the city. On December 8, 1950, the plaintiff, John Stothers, submitted for filing to the defendant, Anthony Martini, the clerk of the city, duly executed petitions for his nomination for the office of commissioner to be voted for at an election to be held on May 8, 1951. Among those signing the petitions were the plaintiffs, Charles P. Sanders and Joseph Sanders. The defendant refused to accept and file the petitions for the reason that Stothers concededly did not qualify for the office of commissioner as provided for by R.S. 40:72-1, as amended by the Laws of 1948, chapter 21, section 2, which requires that:
"Each member [of the commission] shall have been a citizen and resident of the municipality for at least two years immediately preceding his election, or shall have voted in such municipality at the two general elections immediately preceding his election."
The plaintiffs thereupon instituted this proceeding in lieu of prerogative writ in the Law Division of the Superior Court to compel the defendant, who has no interest other than to comply with the statute in the performance of his duties, to accept and file the petitions. The plaintiff Stothers alleged that the statute as quoted above and the defendant's reliance thereon are violative of his constitutional right to seek and hold public office and the other two plaintiffs asserted that their constitutional rights to nominate and elect qualified electors to public office were infringed.
There was no dispute as to the facts and both the plaintiffs and the defendant moved for summary judgment, thereby presenting to the trial court the simple question of the constitutionality of R.S. 40:72-1, as amended. From the ensuing judgment in favor of the defendant the plaintiffs appealed to the Appellate Division of the Superior Court and we have certified the appeal on our own motion.
In their briefs the plaintiffs present interesting arguments as to the inherent political power of the people and invoke a variety of constitutional provisions in aid of their contention that the right of suffrage and the right to seek and hold public office are coextensive and immune from legislative interference, but they paint with too broad a brush. The sole issue on this appeal is the constitutionality of R.S. 40:72-1, as amended, and in resolving this issue we need only decide whether the Legislature may prescribe reasonable qualifications for elective municipal offices and, if so, whether the requirements of the statute in question are reasonable.
Local municipal offices, including the office of commissioner for which the plaintiff Stothers sought to be nominated, are not provided for by the Constitution and it is therefore naturally silent as to the qualifications for such offices. It is to be remembered that municipalities are mere agencies of the State and that the power of the Legislature over them is broad and well established, Jersey City v. Martin, 126 N.J.L. 353, 361 (E. & A. 1941); Attorney-General v. McGuinness, 78 N.J.L. 346 (E. & A. 1910). The latter case involved the question of "whether in our system the right of local self-government is guaranteed to the people of the several political divisions of the state, so that the legislature has no power to provide for the government of those divisions by commissions unless such commission is chosen by the people themselves." (p. 352). In deciding that no such right of local self-government was conferred by the Constitution of 1844 the Court of Errors and Appeals stated:
"But it is significant that the whole of the constitution may be searched in vain for any specific provision guaranteeing to the people the right of local self-government, or prohibiting the legislature from exercising powers of local government through the instrumentality of commissions, however chosen. * * * And if we were thus to write local self-government into the constitution, in what terms should it be defined? * * * And how is local self-government to be exercised; how are the members of the governing body to be chosen, and what are to be their qualifications?" (p. 353).
This statement is equally true with respect to the Constitution of 1947. It is thus only logical to conclude that since the Legislature has the unrestricted power to provide for elective municipal offices that it also has the power to prescribe reasonable qualifications therefor.
On the basis of the maxim expressio unius est exclusio alterius it has consistently been held that the Legislature may not add to the qualifications fixed by the Constitution for holders of constitutional offices, Imbrie v. Marsh, 3 N.J. 578, 585 (Sup. Ct. 1950); Annotation, 47 A.L.R. 481. Conversely, it is the overwhelming weight of authority that the Legislature may prescribe qualifications for elective public office provided there is no constitutional provision on the subject and the exclusions from office are not arbitrary, 3 McQuillin, Municipal Corporations (3rd ...