For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- None.
[33 NJ Page 294] This is an election case. A petition having been filed under R.S. 40:79-1 et seq. for a special election to adopt the municipal-manager form of government for the City of Cape May, the clerk of the municipality called for the election on August 9, 1960. A complaint was filed seeking to restrain the election. The defendant clerk conceded plaintiff should prevail, and in the light of the clerk's position, appellant was permitted to intervene to sustain the call for the election. The trial court granted summary judgment for plaintiff and the Appellate Division affirmed
for the reasons orally expressed by the trial judge. In view of the urgency of the matter we directed oral argument on the merits as if the petition for certification had been granted.
The first question is whether the petition was invalid for want of verification. N.J.S.A. 40:80-1 does not in terms require verification but it is contended that the general election law does. Plaintiff refers first to R.S. 19:1-4 of the latter statute which reads:
"Except as in this title otherwise provided, the provisions for the election of public and party offices shall also apply to the determination of public questions under the referendum procedure so far as may be."
and then to R.S. 19:13-7 which deals with direct nomination by petition and provides:
"Before any petition shall be filed as hereinafter provided, at least five of the voters signing the same shall make oath before a duly qualified officer that the petition is made in good faith, that the affiants saw all the signatures made thereto and verily believe that the signers are duly qualified voters."
We do not agree. We cannot find satisfactory evidence that the Legislature intended the verification provision of the general election law to apply to a petition under N.J.S.A. 40:80-1. For one thing, we note that the Legislature dealt differently with the subject of verification in the general election law itself, specifying another mode of verification for nomination in a primary election, R.S. 19:23-11. Moreover, in the nature of the subject, the manner and scope of the verification must vary with the context, and what is appropriate in one setting may be burdensome or prohibitive in another. Indeed, if R.S. 19:13-7 were held applicable, it is doubtful that an election could be called in a populous municipality under the exacting requirement that
"at least five of the voters signing the same [the petition] shall make oath before a duly qualified officer that the petition is made in good faith, that the affiants saw all the signatures made thereto and verily believe that the signers are duly qualified voters." At any rate, it would be so burdensome that we should not lightly infer the Legislature intended by the general language of R.S. 19:1-4 that the provisions for the election of public and party offices "shall also apply to the determination of public questions under the referendum procedure so far as may be." The phrase, "so far as may be," is not followed by language specifying a controlling criterion. Whether the criterion to be inferred is "reasonable" or "appropriate" or "feasible" or "practicable" we need not now determine. We are satisfied that under any of these possibilities, a legislative intention to require verification of a petition under N.J.S.A. 40:80-1 is not revealed. We add still further that the Legislature has indicated a policy of determining the need for and the type of verification in statutes dealing with specific situations. See for example, the Optional Municipal Charter Law, N.J.S.A. 40:69 A -1(b), 186. See also Anthony v. Rea, 22 N.J. Super. 452 (App. Div. 1952); In re City of Passaic, 94 N.J.L. 384 (Sup. Ct. 1920).
The second issue is whether the Absentee Voting Law (1953) repeals or renders inoperative the provisions of R.S. 40:79-1 et seq. for elections on petitions to adopt that statute. The precise point made is that the Absentee Voting Law (1953) calls for 40 days' notice, N.J.S.A. 19:57-7, a period incompatible with the direction in R.S. 40:80-2 that the election be held on ...