Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
Following oral argument we announced our affirmance of the judgment below and stated we would file a formal opinion setting out our views in greater detail.
Plaintiff appeals from a Law Division judgment entered April 27, 1964 in defendants' favor, denying his motion for summary judgment and dismissing his complaint. The effect
of the judgment was to determine that plaintiff was not eligible to stand for election to the office of commissioner of Long Beach Township, Ocean County, by reason of his failure to meet the statutory requirement that a commissioner shall have been a citizen and resident of the municipality for at least two years immediately preceding his election. N.J.S.A. 40:72-1. We scheduled the filing of the appendix and briefs and the hearing of oral argument on an emergency basis in view of the imminent commission election.
Long Beach Township has a commission form of government under and by virtue of the provisions of Title 40, Subtitle 4 of the Revised Statutes. An election will be held on May 12, 1964, at which time three commissioners will be elected for a term of four years. On March 3, 1964 plaintiff filed or caused to be filed with defendant Lovenia H. Foster, township clerk, nominating petitions substantially in the form prescribed by N.J.S.A. 40:75-4, signed by legal voters of the township in excess of one-half of 1% of the entire vote cast at the 1963 general election, and in excess of 25. See N.J.S.A. 40:75-3. On April 1 defendant Foster, purportedly acting pursuant to statutory authority, examined the records in the office of the Ocean County Board of Elections relating to each of the candidates who had filed petitions for the May 12 commission election. The records indicated that plaintiff had voted in the Borough of Beach Haven at the November 6, 1962 general election. She thereupon requested the county counsel to advise her whether plaintiff had complied with the residence requirement of N.J.S.A. 40:72-1. On April 2 he wrote her that plaintiff was not eligible to run for the office of commissioner because he did not meet that requirement, and consequently his name should not appear on the voting machines, in the absentee ballots, or in the list of candidates when that list was published. Acting on this advice she excluded plaintiff from the drawing for the position of candidates, held April 8, 1964. Nor did she give him at least two days' notice of that drawing, as required by N.J.S.A. 40:75-9. In fact, by letter dated April 6, received
April 8, she notified plaintiff that he was not eligible to run for the office of commissioner because he had not complied with the residence requirement of the statute.
Plaintiff promptly filed an action in lieu of prerogative writs in the Law Division in which he demanded judgment declaring that the township clerk's determination was illegal, requiring her to recognize him as a lawful candidate for commissioner, setting aside the drawing for ballot positions held April 8, 1964, and requiring her to conduct a new drawing and to place his name upon the sample, official, military and absentee ballots as candidate for the office of township commissioner, along with the names of the other candidates, in the order determined by the new drawing. The assignment judge granted plaintiff an order to show cause, returnable before County Court Judge Novins on April 17, 1964, and which restrained defendant Foster from continuing publication of the names of the commission candidates without including plaintiff's name. Plaintiff and defendant Foster each moved for summary judgment.
The other five candidates, two of them incumbents, were made defendants to the prerogative writ action. Although all of them were served, none entered a formal appearance or participated in any way in the proceedings. On April 23, the adjourned date of the hearing on the order to show cause, the trial judge agreed that defendant Foster did not have the power as township clerk to adjudicate plaintiff's qualifications for office. He denied both motions for summary judgment and proceeded to hear witnesses on the question of whether plaintiff had been a resident of Long Beach Township for two years preceding the May 12, 1964 election date. After taking extensive testimony, Judge Novins determined that plaintiff did not possess the residence requirement, dismissed his complaint and entered judgment in favor of defendants. This appeal followed.
Article 1 of Chapter 75 of Title 40 of the Revised Statutes (R.S. 40:75-1 to 16, as amended) sets out the provisions applicable to all municipalities with respect to the nomination
of candidates and preparation for a commission election. No primary election is provided for the nomination of candidates. Instead, N.J.S.A. 40:75-3 provides that nomination shall be by petition filed in the manner and form and under the conditions set forth in that section and sections 40:75-4 and 5. Insofar as N.J.S.A. 40:75-3 is applicable to Long Beach Township, it requires that the petition for nomination shall consist of individual certificates equal in number ...