Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff instituted an action in lieu of prerogative writ, on which an order to show cause issued, to compel defendant city clerk to accept his petition of nomination for the office of councilman-at-large for the City of Newark in the municipal election to be held May 13, 1958. On the return day the Law Division judge, after hearing the testimony presented by defendant (plaintiff offered none), the exhibits, briefs and oral argument, discharged the order to show cause and dismissed the complaint.
Plaintiff filed his petition with the city clerk's office on March 29, 1958, the deadline date. It contained 1,758 certificates, purporting to be signed by "legally qualified voters" of the municipality, as provided by N.J.S.A. 40:69 A -153, the minimum number required admittedly being 1,647. The city clerk checked the certificates against the registration records in the custody of the Superintendent of Elections of Essex County to determine their sufficiency. On April 1, 1958 plaintiff received a registered letter from defendant's office informing him that the petition had been checked against those records and rejected for insufficient signatures.
The 1,758 certificates making up plaintiff's nominating petition were checked in two batches, resulting in the rejection of 538 for the following reasons: 479 signers were not on the registration lists; 22 signatures were not the same as on the lists; 26 names were printed and so could not be checked against signatures; and 11 were duplications. The 538 rejections left plaintiff with a petition containing only 1,220 certificates, or 427 less than the required minimum of 1,647.
At the hearing on the return of the order to show cause, defendant testified that on April 1, the day plaintiff received the registered letter, he appeared at the city clerk's office to examine his petition. Defendant made the facilities of his private office available to plaintiff and gave him all of the certificates of nomination for examination. These contained notations of the reasons for rejection. None of this
testimony was controverted, nor was the testimony of defendant and the chief clerk in the office of the superintendent of elections under whose direction plaintiff's petition was checked, as to the accuracy of that check.
The drawing for positions on the ballot was held April 3, the day plaintiff obtained his order to show cause, returnable April 12. The hearing was held and the order under appeal entered on April 14. The appeal has been processed with dispatch because of the impending election and the necessity for prompt printing of the ballots.
The main question is whether, as defendant contends and the Law Division judge held, the signers of the nominating certificates must be registered voters. N.J.S.A. 40:69 A -153, part of the Optional Municipal Charter Law, L. 1950, c. 210, as amended, N.J.S.A. 40:69 A -1 et seq. , provides:
"At least 45 days prior to a regular municipal election, * * * the names of candidates for all offices shall be filed with the municipal clerk in the manner and form and under the conditions hereinafter set forth:
(a) The petition of nomination shall consist of individual certificates, equal in number to at least 1%, but in no event less than 10, of the legally qualified voters of the municipality or the ward, as the case may be, and shall read substantially as follows:
'I, the undersigned, a qualified elector of the municipality of residing at certify that I do hereby join in a petition of the nomination of whose residence is at for the office of mayor (or councilman-at-large, or ward councilman of the ward, as the case may be) to be voted for at the election to be held in such municipality, on the 19 * * *.'
(b) Each petition signature shall be on a separate sheet of paper and shall bear the name and address of the ...