This is an action in lieu of prerogative writs. Plaintiffs move for summary judgment and defendants have filed a cross-motion for summary judgment. Counsel agree that there is no genuine issue of fact involved.
With reference to the specific questions raised under the statutes, there have not been many court decisions construing and interpreting these statutes on these particular questions. Thus it has been necessary to resort to court decisions involving similar situations, and to resort to the definition of words and phrases used in the statutes, as well as other factors in an attempt to interpret the same.
Plaintiffs contend that on February 16, 1971 defendant enacted an ordinance known as Ordinance No. 438-71; entitled "An Ordinance to Amend Ordinance No. 257-58 and
to Provide for the Establishment of New Election Districts and the Location of said Election Districts within the Borough of Mountainside."
Public notice that the ordinance was passed after second reading and notice of public hearing given by publication of the ordinance in the Mountainside Echo on February 18, 1971. The publication did not include a copy of the redistricting map and no prior publication of such map was made.
Plaintiffs further contend that prior to the redistricting, the number of registered voters in the five districts of Mountainside were as follows: 681 voters in the First, 1,166 in the Second, 582 in the Third, 964 in the Fourth, and 937 voters in the Fifth District. In the First and Third Districts there was one voting machine utilized during the election, and in the Second, Fourth and Fifth Districts two.
Plaintiffs state that it is also important to note that the number of registered voters and the number of ballots cast in each of the five districts has not increased in any significant manner in the last five years. They contend that defendants had no authority to enact the Ordinance under N.J.S.A. 19:4-6 and 19:4-7. Plaintiffs state that N.J.S.A. 19:51-1 is applicable, that defendants violated its provisions, and there was not proper publication of the ordinance; that the map was not set out in the body of the ordinance but only referred to and was advertised in the same way.
Defendants contend that because of a substantial increase in population in Mountainside since 1958 when the election districts were established, and because that increase resulted in a serious differential between the number of voters in the districts, the borough council determined that it would be in the best interests of the voters to readjust and subdivide the election districts. At the time of such determination the borough was divided into five election districts, three of which were districts in which more than 600 votes had been cast in the last two general elections. Ordinance No. 438-71, which provided for the establishment of new
election districts and their location, divided the borough into ten election districts, none of which contained more than 550 or less than 350 registered voters. In adopting the ordinance the readjustment will not require that the Union County Board of Elections, which supplies the borough with voting machines, purchase any new machines, nor will there be any more than a nominal additional expense to such board (if there is any additional expense at all) for election workers.
Defendants contend that N.J.S.A. 19:51-1 is not applicable; that the ordinance represented a proper exercise of power under N.J.S.A. 19:4-6 and 19:4-7, and that the ordinance was properly published when it referred to the map on file in the office of the borough clerk.
Plaintiffs contend that the action of the mayor and borough council violates N.J.S.A. 19:51-1. This statute provides that election districts in which voting machines are to be used may be altered, divided or combined by the county board of elections so as to provide that each district in which one machine is to be used shall contain, as nearly as may be, 750 registered voters; districts with two machines approximately 1,000, and districts with three machines approximately 1,500 registered voters. The statute provides that nothing contained therein shall prevent any election district from containing a lesser number if necessary for the convenience of voters, but this must be determined by the county board of elections. It is therefore evident that this statute alone does not permit the readjustment of election district boundary lines by the local governing body when there are voting machines.
In considering this case it must be remembered that N.J. Const. (1947), Art. IV, sec. 7, par. 11, provides, that any law concerning municipal corporations formed for local government shall be liberally construed in their favor, and the powers of such municipal corporations include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred
or essential thereto, and not inconsistent with or prohibited by the State Constitution or by law.
Courts are enjoined by our Constitution and Home Rule Act to interpret statutes liberally in favor of the existence of local power to deal with local needs. Whelan v. New Jersey Power and Light Co. , 45 N.J. 237, 251 (1965).
N.J.S.A. 19:4-6, par. 1, provides that when, in any two consecutive elections in any election district, over 600 or less than 250 votes have been cast in counties other than counties of the first class, the governing body of the municipality may readjust the boundary lines of such election district or other election districts as may be necessary to effect the change, so that none of the election districts affected shall have more than 550 or less than 350 registered voters. For this purpose the governing body shall have power to consolidate any number of election districts and subdivide the same.
N.J.S.A. 19:4-6, par. 3 provides that in redistricting election districts using voting machines, a like procedure may be followed, provided that in counties other than counties of the first class the municipal governing body shall upon notice from the county board ...