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Pappas v. Malone

Decided: October 24, 1961.

CHRIS G. PAPPAS, PLAINTIFF-APPELLANT,
v.
ARTHUR C. MALONE, ET AL., DEFENDANTS-RESPONDENTS



On appeal from a judgment of the Superior Court, Law Division.

For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- Justice Hall. Hall, J. (dissenting).

Per Curiam

A petition was filed with the clerk of the City of Hoboken seeking a referendum election upon the question whether the form of government of that municipality should revert to its prior form, i.e., the commission form of government. This petition was filed pursuant to N.J.S.A. 40:69A-25. The city clerk rejected the petition, listing a number of grounds. An action was brought in the Law Division to set aside the action of the city clerk and to compel the submission of the question at the forthcoming general election in November. The trial court sustained the action of the city clerk and we certified the ensuing appeal.

The city clerk contends a petition filed under N.J.S.A. 40:69A-25 must comply with the provisions of N.J.S.A. 40:69A-186 and says the petition here fails to comply with that section in that (1) it does not designate the "Committee of the Petitioners" and (2) does not satisfy the provisions of that section with respect to the affidavit of the circulators.

N.J.S.A. 40:69A-186 does not by its own terms apply to a petition filed under N.J.S.A. 40:69A-25. Section 186 is one of a number of sections dealing with the adoption of ordinances by initiative and referendum. These provisions do not by virtue of their own terms reach the referendum proposal contemplated by section 25 and hence if section 186 does apply it must be by virtue of some other provision of the statute incorporating its terms expressly or by implication. It may be noted that in section 1(b) which relates to a petition for a charter study, there is an express reference to sections 186 to 188, and also that in section 19, which relates to petitions with respect to the adoption of an optional plan of government, there is a reference to section 1(b) and thus a reference to sections 186 to 188. Section 25 contains no such cross-reference. The question arises whether the Legislature deliberately refrained from incorporating any of the provisions of sections 186 to 188 or whether it was an oversight which the court should repair under its obligation to give effect to the legislative purpose. Some members of the court are of the view that there was no oversight and that the Legislature intended section 25 to operate without reference to sections 186 to 188. Other members of the court believe it is unnecessary at this time to decide this question for the reason that even if those other sections do apply to a petition under section 25, nonetheless as matters now stand it cannot be said that the petition here filed failed to comply with the terms of such other sections.

If we read into section 25 the same reference which appears in section 1(b), we find that the Legislature did not incorporate all of the provisions of sections 186 to 188 but rather only such portions of those sections as constitute "requirements of form." This is evident from the express provision of section 1(b) which reads "A petition under this section shall conform to the requirements of form for petitions under" sections 186 to 188. (Emphasis added)

Referring then to section 186 the question arises whether the requirement therein for the designation of a committee of petitioners is a matter of form or a matter of substance. We think it is a matter of substance rather than of form and that in its nature it is not applicable to a petition under sections 1(b), 19 or 25. Section 186 provides for the designation of a committee of petitioners "who shall be regarded as responsible for the circulation and filing of the petition and for its possible withdrawal as hereinafter provided." As appears from the sections which follow, the Legislature contemplated the committee might withdraw petitions relating to the adoption of ordinances. The apparent reason is that following the filing of a petition the governing body might take such action as would make it desirable to withdraw the petition. No such consideration applies with respect to petitions for charter study or for adoption of or reversion to a form of government. In such situations, there is no reason why any committee should have the power to decide not to proceed in the face of the action taken by the signatories to the petition. Hence we are satisfied that the designation of a committee of petitioners is not a matter of form as to which a petition under sections 1(b), 19 or 25 must conform. We accordingly disagree with the views expressed in Lindquist v. Lee, 34 N.J. Super. 576 (Law Div. 1955).

The circulator's affidavit required by section 186 is a matter of form and must be furnished with a petition filed under section 1(b) and for present purposes we accordingly assume it would be equally applicable with respect to the petition here involved. The objection to the circulator's affidavits is that they do not appear on each sheet of the total petition although it appears not to be disputed that the affidavits purport to relate to a number of such sheets attached to each affidavit itself. The trial court rejected this criticism on the thesis that there was substantial compliance and that in any event the deficiency would be amendable. We cannot be certain that the Legislature in its reference in

section 186 to "each separate petition paper" meant each separate sheet rather than each of the several petitions containing more than one page which would ultimately be assembled and filed as a single instrument pursuant to section 187. We note for example that in section 153 the Legislature refers to "a separate sheet of paper" to express a more confining requirement. At any rate we are satisfied that there was substantial compliance, subject of course to the right of the clerk to question each affiant as to whether in fact he witnessed the execution of all of the signatures on all of the sheets of paper attached to his affidavit. The question reserved above, whether section 25 does incorporate the formal requirements of section 186, could not arise for necessary decision unless it should appear that the circulator's affidavit in fact did not apply to some of the sheets annexed to such affidavit.

The remaining question is whether the petition contained the signatures of the required number of registered voters. Section 187 provides that if the clerk determines the petition is insufficient "he shall set forth in his certificate the particulars in which it is defective." On the assumption upon which the clerk here operated, to wit, that sections 186 to 188 are applicable, it is patent that the clerk's certification was wholly deficient because it did not set forth the particulars in which the petition is allegedly defective. The language of section 187 is clear in this regard, but even in the absence of an express requirement to that effect the duty of the clerk to be specific would be implicit and inescapable. Yet in view of the overall uncertainties in the statute and the substantial public interest involved we are not disposed to invalidate the clerk's ...


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