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In re Incorporation of Village of Loch Arbour. Appeal of Township of Ocean

Decided: November 4, 1957.


For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs and Francis. For reversal -- None. The opinion of the court was delivered by Francis, J.


The Township of Ocean in the County of Monmouth and Patrick G. Strano, a resident taxpayer, sought a review of an order of the County Court directing the holding of a special election under N.J.S.A. 40:157-1 et seq. The purpose of the proceeding there was to have the electors who were qualified to vote decide whether the proposed Village of Loch Arbour should become incorporated as an individual municipal entity and thus separated from the township. The plebiscite was held and the majority of the persons who cast ballots approved the incorporation. Subsequently a notice of appeal was filed in the Appellate Division and we certified in accordance with R.R. 1:10-1.

The attack on the County Court's action is predicated on two grounds: (1) N.J.S.A. 40:157-6 is fatally defective because it omits to specify the persons who are qualified to vote in such an election, and (2) the entire statute, N.J.S.A. 40:157-1 to 15, inclusive, is unconstitutional because "it creates an illusory classification and attempts to regulate the internal affairs of municipalities in violation of Article 4, Section 7, Paragraph 9, of the Constitution."

Section 1 of the act provides:

"The inhabitants of any township * * * may become incorporated as a village by complying with the provisions of chapters 157 to 159 of this title (ยง 40:157-1 et seq.) but no village shall be so incorporated which shall not contain at least three hundred inhabitants and if the territory included in such proposed village should exceed one square mile in area it shall contain three hundred inhabitants for every additional square mile or fraction of a mile of area." (Emphasis added.)

The proceeding to accomplish the incorporation is required to be instituted by application in writing to the County Court of the county where the proposed village is situated. The moving papers must set forth the name and boundaries of the new municipality and must contain the signatures of

persons owning at least one-fifth in value of the taxable real estate within its limits, as shown by the assessor's duplicate for the last preceding annual tax levy. N.J.S.A. 40:157-2. Thereafter the court fixes a hearing date, notice of which is required to be posted ten days prior thereto in five of the most public places in the proposed village, and published in a designated newspaper. N.J.S.A. 40:157-3. If the court determines on the return date that the conditions prescribed by sections 1 and 2 have been met, he "shall" call a special election to be held at a convenient place within the described village. N.J.S.A. 40:157-4, 5. The result of the election is reported to the court and if the majority of the votes cast are for incorporation, upon his filing of a certificate to that effect the territory becomes an incorporated village. N.J.S.A. 40:157-7, 10.

In this instance, an application in proper form was filed with the County Court seeking the incorporation of the Village of Loch Arbour, to consist of an area of .08 square miles and containing 335 inhabitants. On the hearing date appellants appeared and objected unsuccessfully to the requested election for the reasons which are the subject of this appeal. Thereafter, the election was held and (we shall assume for the purpose of determining the merits of the controversy presented by the parties) the balloting was limited to legally qualified voters who resided within the boundaries of the new village; residents of the remainder of the Township of Ocean were excluded.



The qualifications to vote prescribed by the statute.

It is true that none of the sections of the act specifies in so many words the persons who may participate in the voting. However, it is recognized as a fundamental principle of construction that a statute often speaks as plainly by inference as by express words. Matters which

are so clearly implied are considered an integral part of the enactment itself. Brandon v. Montclair, 124 N.J.L. 135, 143 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940).

In the present case, resort to the various sections of the law leaves no doubt as to the legislative intention. Section 1 says that the "inhabitants" of part of a township may become incorporated as a village. The significance of that word is inescapable. An inhabitant in the generally accepted connotation is one who actually and permanently resides in a given place and who has his domicile there. Black's Law Dictionary (4 th ed. 1951), p. 921; "one who dwells or resides permanently in a place, as distinguished from a transient lodger or visitor; * * * it ordinarily implies more fixity of abode than resident. * * * Inhabitant, the general term, implies permanent abode." Webster's New International Dictionary (2 d ed.); State v. Ross, 23 N.J.L. 517, 520, 521 (Sup. Ct. 1852); State v. Deshler, 25 N.J.L. 177 (Sup. Ct. 1855); State v. Casper, Collector, 36 N.J.L. 367, 368 (Sup. Ct. 1873); Sprague v. Sprague, 131 N.J. Eq. 104, 109 (E. & A. 1942). Thus, the potent implication is that the Legislature authorized the permanent residents of the incipient village to seek the election. But which inhabitants have the capacity to vote? The answer is supplied by section 6, N.J.S.A. 40:157-6, which directs that "The election shall ...

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