Price, Haneman and Schettino. The opinion of the court was delivered by Price, S.j.a.d.
This appeal was argued during the morning of June 9, 1958. Because of its emergent nature the court considered the appeal promptly and delivered its opinion orally in the afternoon of the same day.
By this appeal plaintiff seeks the reversal of a judgment of the Superior Court, Law Division, which reflected a denial of the relief sought by him in an action in lieu of prerogative writ. The objective of the action by plaintiff was to compel Harry Reichenstein, the City Clerk of the City of Newark, to place plaintiff's name on the ballot so that he might contest with Frank Addonizio for the office of councilman of the West Ward at the "run-off" election to be held June 17, 1958. The action stemmed from the fact that the defendant Reichenstein refused to comply with plaintiff's request to so place his name on the ballot and advised plaintiff that the clerk was retaining the name of Terrence F. Reilly, who died June 3, 1958, on the ballots to be used at the election.
The asserted basis of plaintiff's action flows from the fact that on May 13, 1958, a municipal election was held in the City of Newark for (a) mayor, (b) four councilmen at large, and (c) ward councilmen. The ward councilmen under the law are elected by the voters in their particular wards. Plaintiff was a candidate for the office of councilman of the West Ward. As a result of the election on May 13, 1958, votes for the candidates for the office of ward councilman for the West Ward were cast as follows: Frank Addonizio 4,861; Terrence F. Reilly 4,644; Francis X. McCarthy 3,349;
Harry Lombardi 3,108; Joseph Gallagher 3,026; William Whelan 1,412; Joseph Battaglia 512.
Frank Addonizio and Terrence F. Reilly finished first and second respectively for councilman of the West Ward, but neither obtained the majority of votes cast (20,912) necessary for election as provided for by statute. Plaintiff finished third. Under the provisions of N.J.S.A. 40:69 A -161 Frank Addonizio and Terrence F. Reilly were to contest for the election of councilman of the West Ward to be held June 17, 1958.
As stated, Terrence F. Reilly, who finished second, died June 3, 1958.
The City of Newark is a municipal corporation operating under the Mayor-Council Plan C Form of government under N.J.S.A. 40:69 A -55 et seq.
N.J.S.A. 40:69 A -161, applicable to said election, provides:
"In any regular municipal election referred to in section 17-11, if a sufficient number of candidates do not receive a majority of the votes cast to elect the required number of councilmen at large, or no candidate for mayor or no candidate for ward councilman receives a majority of the votes cast for his respective office, a run-off election in the municipality or ward, as the case may be, shall be held on the fifth Tuesday next following such municipal election. The candidates for councilmen at large not elected at such municipal election, equal in number to twice the number of councilmen at large remaining to be elected, who received the greatest number of votes at such municipal election and the two candidates for mayor or for ward councilman who received the greatest number of votes at such election, shall be the candidates for the office for which they were nominated, at such run-off election. Military service ballots shall forthwith be printed and distributed for the run-off election in the same manner, so far as possible, as for other municipal elections.
The candidate or candidates who receive the greatest number of votes at such run-off election shall be elected to the office or offices to be filled. If two or more candidates shall be equal and greatest in votes, for any of the purposes of this section, they shall draw lots to determine which one shall enter the run-off election or be elected therein, as the case may be."
Plaintiff demands judgment directing the defendant to insert plaintiff's name on the ballot ...