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Seminara v. Smith

Decided: November 19, 1965.

CARMEN SEMINARA, PLAINTIFF-RESPONDENT
v.
MERCER D. SMITH, TOWNSHIP CLERK OF THE TOWNSHIP OF FRANKLIN, AND HARRY STILWELL, JR., DEFENDANTS-APPELLANTS



Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

Defendant Harry Stilwell, Jr., who was certified by defendant municipal clerk as winner of an election to fill a vacancy in the office of councilman at large of Franklin Township, Somerset County, appeals from the decision of the Law Division voiding the certificate of his election and ordering a runoff election for the position. Plaintiff, who had been designated by the council as temporary holder of the position until the election and qualification of a successor, was adjudged rightful holder of the office pending the event of the runoff. The parties have informally stipulated, however, that plaintiff will not serve until the determination of this appeal.

The election to fill the vacancy was held at the general election on November 2, 1965. Stilwell received 3003 votes, plaintiff 2501, and a third candidate 962. Stilwell thus received a plurality but not a majority of the votes cast.

This controversy is controlled by the provisions of N.J.S.A. 40:69A-109 et seq., dealing with a Faulkner Act Council-Manager Plan D form of municipal government (article 12 of the act). Under the form of that plan adopted by Franklin Township, there are nine councilmen, four elected at large and one from each of five wards. In the

summer of 1965 one of the incumbent councilmen at large resigned. As noted, plaintiff was appointed by the council to fill the vacancy temporarily under N.J.S.A. 40:69A-114. That section also provides:

"Vacancies in the council shall be filled by election for the remainder of the unexpired term at the next general or municipal election occurring not less than 60 days after the occurrence of the vacancy, except that no election to fill vacancies in the council shall be held at the general election or municipal election, as the case may be, to be held in the last year of the term of the vacant office. * * *"

It is notable that this section on its face appears to contemplate that the election for the vacancy will "fill" the vacancy as a finality, for it does not mention runoff elections or specify that the winner must have obtained a majority of the total votes cast. Stilwell therefore argues that the general rule should apply, i.e., that the candidate obtaining the greatest number of votes should be declared the winner. 29 C.J.S. Elections ยง 241, p. 674; and see N.J.S.A. 40:69A-161. On the other hand, plaintiff contends that a requirement for a majority vote and a runoff in default thereof is properly to be read into section 114 by implication from N.J.S.A. 40:69A-160, 161, if not by the literal terms thereof.

Section 160, so far as here material, reads:

"At the regular municipal election in any municipality which has adopted articles 4 or 5, or 9 through 12, inclusive, of this act, the candidates receiving the greatest number and a majority of votes cast shall be elected to the respective offices; provided, however, that if:

(a) five councilmen at large are to be elected and 2 or more candidates for said office receive a majority of the votes cast the 5 candidates receiving the greatest number of votes shall be elected; or

(b) four councilmen at large are to be elected and 2 or more candidates for said office receive a majority of the votes cast the 4 candidates receiving the greatest number of votes shall be elected; or

(c) three councilmen at large are to be elected and 1 or more candidates for said office receive a majority of the votes cast the 3 candidates receiving the ...


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