On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Burling, Francis and Proctor. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Weintraub, C.J. Wachenfeld, J., votes to reverse the judgment for the reasons expressed in the opinion of Judge Waugh at the trial level.
On May 13, 1958 the City of Newark held its regular municipal election to choose a mayor, a ward councilman in each of its five wards, and four councilmen at large. The city is governed by Mayor-Council Plan C of the Faulkner Act. N.J.S.A. 40:69 A -55 to 40:69 A -60.
Ten candidates contended for the four offices of councilmen at large. The city clerk concluded that the four candidates who received the greatest number of votes were elected and the board of canvassers made the same determination. Plaintiff, who ran fifth, brought this action to compel a run-off election. The Law Division agreed with the city clerk and board of canvassers. The Appellate Division reversed, 50 N.J. Super. 377 (1958), and defendant Michael A. Bontempo, who finished first, petitioned for certification. In view of the imminence of the date for the run-off election, we directed immediate argument on the merits, subject to a later determination as to whether the appeal should be considered allowed. The cause was argued accordingly.
The issue has not heretofore been considered by this court, and being a substantial one, certification is granted. We proceed to the merits.
A total of 106,125 registered voters participated in the municipal election. The total of the votes for the ten candidates for councilmen at large was 300,572. Voting machines having been used, there is no way to determine how many actually voted for one or more of these candidates.
N.J.S.A. 40:69 A -160 deals with the determination of the winners in the initial election. It reads:
"At the regular municipal election in any municipality which has adopted articles 4 or 5, or 9 through 12, inclusive, of this act,
the candidates receiving the greatest number and a majority of votes cast shall be elected to the respective offices; provided, however, that if:
(a) five councilmen at large are to be elected and 2 or more candidates for said office receive a majority of the votes cast in the election, the 5 candidates receiving the greatest number of votes shall be elected; or
(b) four councilmen at large are to be elected and 2 or more candidates for said office receive a majority of the votes cast in the election, the 4 candidates receiving the greatest number of votes shall be elected; or
(c) three councilmen at large are to be elected and 1 or more candidates for said office receive a majority of the votes cast in the election, the 3 candidates receiving the ...