This is a proceeding in lieu of prerogative writs to compel the city clerk of Hackensack, N.J. to examine a recall petition filed with her and to certify the result of her examination as required by R.S. 40:84-12.
On May 28, 1963 a petition was filed with the city clerk entitled, "Petition for Recall of Councilmen of the City of Hackensack and the Election of Successors." The petition contains the names of two councilmen of the City Council of Hackensack, and contains a general statement of the grounds upon which their removal from office is sought. The petition then reads as follows:
"NOW, THEREFORE, we the undersigned voters of the City of Hackensack, in accordance with the provisions of Revised Statutes of New Jersey, Title 40:84-12 to 19 inclusive, demand the removal of and the election of successors to Councilmen Kazmier Wysocki and Charles E. Freeman for the reasons and on the grounds above stated and we the undersigned voters of the City of Hackensack request that a recall election shall be held in the event said Councilmen do not resign or their tender of resignations shall not have been accepted by the City Council, and we the undersigned voters of the
City of Hackensack do further request that the following proposals for recall shall be placed on the ballots of such election, viz.:
'Shall Kazmier Wysocki be removed from the office of Councilman by recall?'
'Shall Charles E. Freeman be removed from the office of Councilman by recall?'"
The city clerk refused to certify the result of her examination of the petition on the ground that two councilmen were named in the petition for removal from office, and therefore the petition did not comply with the requirements of the law and was invalid. There must be a substantial compliance with statutory procedure for the recall of municipal officers. In the case of Gibson v. Campbell , 136 Wash. 467, 241 P. 21 (Wash. Sup. Ct. 1925), the court said that "the question as to whether or not the proceedings looking to the recall of an officer comply with the constitutional and statutory law upon the subject is purely and wholly a judicial question. The power to hold an election proceeds from statute, and until the proper legal steps have been taken the county auditor [the city clerk in the case now before this court] has no right to call an election." See also Wallace v. Board of Trustees , 116 Cal. App. 82, 2 P. 2 d 426 (Cal. D. Ct. App. 1931); Richard v. Tomlinson , 49 So. 2 d 798 (Fla. Sup. Ct. 1951).
The City of Hackensack is governed under the Municipal Manager Form of Government Law, R.S. 40:79-1 et seq. (subtitle 5 of Title 40). R.S. 40:81-6 provides as follows:
"A member of the municipal council after having been in office for at least one year may be removed from office by a recall petition prepared and approved by the voters of the municipality in the manner hereinafter provided for recall procedure."
R.S. 40:84-12 provides as follows:
"The procedure to effect the removal of councilmen in addition to other methods provided by law shall be as follows: A petition signed by voters entitled to vote for a successor to the incumbent sought to be removed * * * demanding the removal of and the election of a successor to the ...