Price, Sullivan and Leonard. The opinion of the court was delivered by Sullivan, J.A.D.
Plaintiff, Albin J. Ehrhardt, a candidate for the office of Township Committee of Warren Township, appeals from the dismissal of his suit to compel the County Clerk of Somerset County to change the form of ballot proposed to be used in the November 7, 1961 general election. After the notice of appeal was served and filed, all of the other candidates for the office of township committee were joined as parties to this suit; Robert W. Harrold and Robert W. Murray as plaintiffs, and Walter Jannelli, Robert L. Horton and William E. Jayne Jr. as defendants.
The facts which are undisputed are as follows. At the time of the 1961 primary election the Township Committee of Warren Township consisted of three members, each of whom had been elected for a term of three years, with the term of one member expiring each year, the vacancy to be filled at the general election in November. In the 1961 primary election, therefore, candidates were selected for the ensuing vacancy in the office of township committee and, as a result of such primary, Ehrhardt was selected as the Democratic candidate and Jannelli as the Republican candidate. No independent filed a petition as candidate for such office. Subsequent to the primary election, and more than 37 days prior to the general election, the 1960 census was promulgated and showed that the population of Warren Township was more than 4,500 persons. By virtue of the new census the township committee was increased to five members, the two additional members to be elected at the
next annual election, one for a two-year term and the other for a three-year term. N.J.S.A. 40:146-2.
An increase in the membership of a township committee by virtue of a census promulgation has been held to create vacancies in such office. Michaels v. Johnson , 33 N.J. Super. 77 (App. Div. 1954). Since the vacancies in question had occurred after the primary election and more than 37 days prior to the general election, candidates for such vacancies were selected by the county committee of each political party pursuant to N.J.S.A. 19:27-11. The Democratic county committee selected Harrold as candidate for the office of township committee three-year term, and Murray as candidate for the two-year term. The Republican county committee selected Horton as candidate for the three-year term and Jayne as candidate for the two-year term. No independents filed petitions as candidates for said vacancies although permitted to do so by N.J.S.A. 19:27-11.
The County Clerk of Somerset County, in preparing the form of ballot to be used in the general election, has announced his intention of grouping the candidates for the office of township committee who were nominated in the primary election with the candidates who were selected by the respective county committees to run for the newly created vacancy in the office of township committee, three-year term. The effect of the county clerk's proposed action, and the nub of this appeal, is that these four candidates will be grouped together on the ballot under the legend
The county clerk has indicated his intention of giving the two candidates for the newly created vacancy in the office of township committee, two-year term, a separate position on the ballot under the legend