Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D. Goldmann, S.j.a.d. (dissenting).
Township of Brick and the four individual plaintiffs, who had been among the 26 candidates running for the seven councilman-at-large seats at the regular municipal election on May 9, 1967 and who had placed 8th, 9th, 10th and 11th in the balloting, brought a declaratory judgment action in the Law Division and thereby sought an adjudication that there must be a run-off election under N.J.S.A. 40:69A-160 and 161 for four of the seven council seats for which none of the candidates had received a majority vote. Defendants, who had also been candidates and who had placed 4th, 5th, 6th and 7th in the balloting, but had not obtained at least 3,291 votes to give them a majority, contended that they should be declared elected, notwithstanding their lack of a majority, because the three highest candidates had obtained a majority.
The matter was heard by Judge Martino and he entered a judgment on June 5, 1967, in which he adjudged:
(1) N.J.S.A. 40:69A-160 requires that in an election of councilmen-at-large where seven candidates are to be elected all seven such candidates must receive a majority of the votes cast.
(2) A run-off election shall be held on June 13, 1967 as required by N.J.S.A. 40:69A-161.
(3) The eight candidates individually named as parties in this action shall be the candidates for the office of councilmen-at-large at such run-off election and the four candidates who receive the greatest number of votes at such run-off election shall be elected to the office of councilmen-at-large.
Defendants appeal from this judgment. We affirm.
Township of Brick adopted Mayor-Council Plan B, N.J.S.A. 40:69A-49 et seq., under the Optional Municipal Charters Act, at the 1966 general election and provided for the election of seven councilmen-at-large. N.J.S.A. 40:69A-52 provides under Plan B for a council of five members, unless pursuant to the authority granted under sections 40:69A-13 and 19 the municipality chooses to be governed by a council of seven or nine members. The voters approved a seven-member council and they were to be elected at large.
N.J.S.A. 40:69A-160, so far as pertinent herein, provides:
"At the regular municipal election in any municipality which has adopted articles 4 or 5, or 9 through 12, inclusive, of this act [Brick Township adopted article 4], the candidates receiving the greatest number and a majority of the votes cast shall be elected; 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; * * *." (Emphasis added)
The proviso considers alternate situations where four, three or two councilmen at large are to be elected. In the case of four to be elected, if 2 or more candidates receive a majority, the 4 candidates receiving the greatest number of votes shall be elected. In the case of three or two councilmen at large to be elected, if 1 or more candidates, receive a majority, the 3 or the 2 candidates, respectively, receiving the greatest number of votes shall be elected.
Significantly, however, no such similar pattern for an avoidance of a run-off election if less than all the candidates receive a majority has been expressed in the statute where seven or nine councilmen at large are to be elected. Defendants argue that we should imply that the legislative intent must have been to apply a similar formula where seven or nine councilmen at large are to be elected and that the failure to so provide was due to inadvertence. They would have us amend the statute by judicial decree or interpretation and rule that so long as 3 ...