Beetel, J.c.c. (temporarily assigned).
This is an action brought under N.J.S.A. 19:29-1(i) to set aside a general election on the ground that the public question and the names of several candidates were not published in accordance with the general election laws and certain provisions of the Faulkner Act. N.J.S.A. 40:69A-1 et seq. Rabb, Ellis and Wood were granted leave to intervene as parties defendant on December 4, 1970 by consent of the parties. Defendant Larason has informed the court, through her attorney, that she takes no position in the outcome of the matter and consequently has not appeared during the litigation, in person or through counsel, and has not participated in oral or written argument of the matter.
The case is now before the court on two motions, one by plaintiff's show cause order why the passage of the public question and election of candidates to the charter commission should not be declared invalid, null and void; the other motion being by defendants-intervenors for a judgment of dismissal based on the pleadings, in the form of a motion to dismiss the complaint. Both motions were argued simultaneously and are treated herein as cross-motions for summary judgment.
The factual basis for the present action is not in dispute. On August 6, 1970 the governing body of Clinton Township passed an ordinance authorizing the following public question:
Shall a charter commission be elected to study the charter of the Township of Clinton and to consider a new charter or improvements in the present charter and to make recommendations thereon?
to be placed on the ballot of the general election to be held on November 3, 1970. This was done in accordance with N.J.S.A. 40:69A-1. The ordinance was published by title
only in the Hunterdon County Democrat on August 13, 1970. That notice did not mention when the charter study election would appear on the ballot, merely stating that
1. An election shall be held on the following question; [question stated]
2. The election shall be held on the above question in accordance with the applicable provisions of Title 40, Chapter 69A of the Revised Statutes.
Notice of the general election was published two weeks prior to the closing of the election rolls on September 24, 1970, and on October 22, and again on October 29, 1970. Each publication was in the Hunterdon County Democrat. None of the published notices*fn1 mentions the fact that the charter study question would be placed on the ballot for determination at the November election. It is this failure to include specific notice of the date on which the public question election would be held which plaintiff contends vitiates the election.
Plaintiff's ex parte applications to this court and to the assignment judge of the vicinage seeking to have the charter study question removed from the ballot being unsuccessful, an election was held on November 3, 1970, resulting in an affirmative response to the charter study question by a vote of 864 to 472. At the election 74% of the registered voters of the township cast their votes, although not all of them voted on the charter study question. At the same time a charter commission consisting of five members wes elected, as required by N.J.S.A. 40:69A-2. This action ensued.
There is no question that there has been a failure by the election officials here involved to comply with the mandatory provisions of N.J.S.A. 19:12-7(II)(b),*fn2 since the
fact that a public question was to be presented is not mentioned. The key issue upon which the validity of the presentation of the question must stand or fall is whether the failure to advertise or publish notice of the public question so vitally influenced the election proceedings as to have repressed or contravened a full and free expression of the popular will of the voters of the Township of Clinton. Sharrock v. Borough of Keansburg , 15 N.J. Super. 11 (App. Div. 1951).
The cases cited by plaintiff in support of his thesis are somewhat inapposite; Hodges v. Van Fleet , 55 N.J. 528 (1970), not bearing on election procedure at all; Michaelson v. Wall Tp. , 92 N.J.L. 72 (Sup. Ct. 1918), dealing with special and not general elections, and Reed v. Independence Tp. , 92 N.J.L. 102 (Sup. Ct. 1918), relying on the Michaelson case. The questions raised by plaintiff are not to be taken lightly, however, since we are involved here with one of the basic aspects of a democratic society -- the right of the voting citizen to be informed of the matters with regard to which he is asked to make a decision. If failure to ...