The opinion of the court was delivered by Mariano, J.s.c.
Plaintiffs commenced this action in lieu of prerogative writ by reason of which they sought to set aside the action of the defendant declaring certain petitions to be insufficient. In addition thereto, they seek to have this court direct the defendant to call for a referendum election within the time as required by the Optional Municipal Charter Laws, N.J.S.A. 40:69 A -1 et seq. , as amended and supplemented.
Defendant filed answer. Subsequently, both plaintiffs and the defendant filed cross-motions for the entry of a summary judgment based upon the following agreed set of facts, there being no genuine issue with respect to the same.
According to the federal census of 1950 the population of the City of Bayonne was 77,230. The so-called petition contains a sufficient number of signers pursuant to N.J.S.A. 40:69 A -185 which was obtained by circulators or solicitors. The petition was duly filed with the municipal clerk of Bayonne. The petition sought to have a referendum to determine the desirability of a change in the form of government in Bayonne, a municipal corporation.
Pursuant to N.J.S.A. 40:69 A -187 the municipal clerk, as a result of his examination of the petition, notified the required number of members of the committee of petitioners of his objections, which were two in number, one of which has been abandoned. There remains the following objection:
"The names and addresses of five voters designated as the Committee of the Petitioners do not appear on each of the petition papers as required by law."
Practically all of the signatures of registered voters were obtained by the circulators or solicitors on pieces of paper, and subsequent thereto, and not in the presence of the signers, were stapled to a sheet of paper, the upper part of which was in blank and the lower part of which contained the names and addresses of the five members designated as the committee of the petitioners and the affidavit of the circulators. (See exhibit introduced into evidence by agreement, but not marked by the court reporter.) When the registered voters signed the petition papers there did not appear thereon the names and addresses of the members designated as the committee of the petitioners, nor did there appear the affidavit of the circulator or solicitor.
By agreement of the parties the question presented for determination is the validity of the objectional features, notice of which was given by the municipal clerk to the required number of the committee of the petitioners.
The pertinent statute is N.J.S.A. 40:69 A -186, which reads as follows:
"All petition papers circulated for the purposes of an initiative or referendum shall be uniform in size and style. Initiative petition papers shall contain the full text of the proposed ordinance. The signatures to initiative or referendum petitions need not all be appended to one paper, but to each separate petition there shall be attached a statement of the circulator thereof as provided by this section. Each signer of any such petition paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or other description sufficient to identify the place. There shall appear on each petition paper the names and addresses of five voters, designated as the Committee of the Petitioners, who shall be regarded as responsible for the circulation and filing of the petition and for its possible withdrawal as hereinafter provided. Attached to each separate petition paper there shall be an affidavit of the circulator thereof that he, and he only, personally circulated the foregoing paper, that all the signatures appended thereto were made in his presence, and that he believes them to be the genuine signatures of the persons whose names they purport to be." (Italics mine.)
By reason of Chapter 69 of the Laws of 1954 the word "ordinance" ...