Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D. Goldmann, S.j.a.d. (concurring).
[63 NJSuper Page 272] This is an appeal from a summary judgment entered on October 5, 1960 in the Superior Court, Law Division, in favor of the plaintiff, in a proceeding in
lieu of prerogative writ. The judgment amended a certain interpretative statement prepared by the Charter Commission of the Borough of Waldwick, to be appended to the public question of municipal charter revision on the sample ballot and the official ballot to be used by the voters of Waldwick at the general election to be held on November 8, 1960.
The judgment also directed the County Clerk of Bergen County to substitute in lieu of the charter commission's interpretative statement on file in his office and to be appended to the public question to be set forth on the sample and official ballots the trial court's amended interpretative statement.
The Charter Commission of Waldwick had been created pursuant to N.J.S.A. 40:69 A -1 et seq. , the Optional Municipal Charter Law (Faulkner Act). After study of Waldwick's present form of local government and the alternate forms available to Waldwick, it filed its report on August 3, 1960 with the municipal clerk. The report contained the charter commission's recommendation of a change to Council-Manager Plan E of the Optional Municipal Charter Law providing for a council of five councilmen to be elected at large and a municipal manager to be appointed by the council. Accordingly, the commission recommended that there be placed on the November 8, 1960 general election ballot a question to read as follows:
"Shall Council-Manager Plan E of the Optional Municipal Charter Law providing for a council of five councilmen to be elected at large be adopted by the Borough of Waldwick?"
There was no issue before the trial court, or here, as to the propriety of the above form of question.
N.J.S.A. 40:69 A -15 provides that the charter commission shall frame the question to be placed on the ballot as provided in N.J.S.A. 40:69 A -14, "and, if it deems appropriate, an interpretative statement to accompany such question." Thus, the framing of an accompanying interpretative statement is permissive and not mandatory.
Pursuant to that statutory authorization, the Waldwick Charter Commission in its aforesaid report directed that the following interpretative statement shall accompany the question on the ballot:
"A vote of Yes will give Waldwick a modern form of government, with a council of five members elected by the people and a full time, qualified borough manager appointed by the council and accountable to it, and subject to removal by the council.
A vote of No will keep the present borough form of government."
Copies of the charter commission report, with its findings and recommendations, were printed and distributed to every household in Waldwick. No question has been raised as to the charter commission's rights and duties to make its recommendations and to disseminate its views, in the hope that the charter revision plan advocated by it may be adopted by the voters.
The plaintiff, a qualified resident and voter of Waldwick, by complaint filed on September 29, 1960 in the Superior Court, Law Division, challenged the propriety of the interpretative statement framed by the charter commission, alleging that the "said alleged interpretative statement is argumentative and not merely explanatory as required by R.S. 40:69 A -15, and is couched in language calculated to induce the voter to cast an affirmative vote on the question presented." Wherefore, plaintiff demanded that the said alleged interpretative statement be stricken from the ballot, or, in the alternative, an interpretative statement merely explanatory in its language be substituted therefor; and that the Bergen County Clerk be restrained from placing said alleged interpretative statement in the sample ballot.
After answer filed by the charter commission, and on motions by each side for summary judgment, the trial court determined that the use of the words "modern" and "qualified" in the above statement should be deleted, because they were unduly "persuasive," rather than merely "interpretative," and therefore not properly included within the permissive
interpretative statement. It was also decided that the manager to be appointed by the council was more accurately described in the pertinent statute as a "municipal," rather than a "borough" manager. Accordingly, the trial court amended the ...