For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Case, J.
The appeal, brought here on our own motion following leave to appeal given by the Appellate Division, is from an order of the Superior Court, Law Division, Hudson County, denying defendant's motion to dismiss the complaint.
The proceeding is in lieu of the prerogative writ of mandamus and seeks to compel the city clerk of the City of Jersey City to provide for a special election under the Optional
Municipal Charter Law, L. 1950, c. 210 (N.J.S.A. 40:69 A -1, et seq.), following the filing of a petition to that end. A second count in the complaint, asking for a declaratory judgment, has been abandoned.
Article 1 of the statute contains three parts classified respectively as "A," "B" and "C." Part "A," containing paragraphs 1-1 to 1-17 inclusive, is entitled "Charter Commission"; part "B," containing paragraphs 1-18 to 1-21 inclusive, is entitled "Procedure by Petition and Referendum." Under part "A" provision is made for submitting to the voters the question whether or not a commission shall be elected to study the charter of a municipality and to consider a new charter or improvements in the existing charter and to make recommendations thereon; and authority is given such a commission, if the popular vote adopts that scheme of inquiry, to make one of four enumerated recommendations, namely: (a) that a referendum election be held to submit the question of the adoption of one of the optional forms of government described in the statute; (b) that the governing body petition the Legislature for the enactment of a special charter or for one or more specific amendments of or to the existing charter of the municipality; (c) that the existing form of government remain unchanged, or (d) that such other action be taken as the commission, consistently with its functions, may deem advisable. If the report recommends the adoption of one of the optional forms of government a referendum election is to be called; if it recommends a special charter or specific amendment of the existing charter, the governing body is enjoined to petition the Legislature accordingly; but if it recommends that the form of government remain unchanged, no further action appears to be required. The proposal to initiate and to evoke a referendum election concerning a commission for study and report may arise in either of two ways: (1) by resolution of the governing body, or (2) by petition of the registered voters in sufficient numbers; but when that course is proposed by either method it becomes the duty of the municipal clerk, subject to the restriction
hereinafter mentioned, to provide for submitting the question to popular vote.
The procedure by petition and referendum contained in part "B" originates solely with the voters who, signing in sufficient numbers and without the intervention of a charter commission, may petition for an election on the question of adopting any one of the optional plans of government provided in "articles 3 through 16" of the statute. Upon the filing of such a petition it becomes the duty of the municipal clerk, here again subject to a limitation presently to be mentioned, to provide for submitting the question at an election.
About January 4, 1951, according to the allegations of the complaint, a movement was inaugurated in the City of Jersey City which resulted in the filing with the municipal clerk, on January 22, 1951, of a petition under part "B" containing more than 23,000 signatures of registered voters (of whom plaintiff was one), admittedly a sufficient number, seeking an election on the question of adopting one of the statutory optional forms of municipal government. The clerk did not call an election, justifying that omission, as the complaint alleges, upon the fact that the city commission, on January 9, 1951, passed a resolution pursuant to section 1-1 of part "A" calling for a referendum on the question of electing a charter commission and, further, on January 23, 1951, passed an ordinance to the same effect. Thus is presented for construction section 1-21 of part "B," which contains the restrictions upon the authority and the duty of the clerk to call an election under that part. The section reads:
"1-21. No petition for submission of the question of adopting an optional plan of government pursuant to this act may be filed while proceedings are pending pursuant to an ordinance passed or petition filed pursuant to this act or other statute for the adoption of any other charter or form of government available to the municipality, nor within four years after an election shall have been held pursuant to any such petition filed pursuant to this act."
Related thereto is section 1-17, the final section in part "A," which provides with respect to a ...