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In re Petition of Thomas F. X. Smith

Decided: August 31, 1971.

IN THE MATTER OF PETITION OF THOMAS F. X. SMITH, MUNICIPAL CLERK OF THE CITY OF JERSEY CITY IN RE: SPECIAL ELECTION OF THE CITY OF JERSEY CITY, PETITIONER-RESPONDENT,
v.
FRANCIS X. HAYES, DEFENDANT INTERVENOR-APPELLANT



Kilkenny, Halpern and Lane.

Per Curiam

Defendant-intervenor is appealing from a declaratory judgment ordering that elections in Jersey City to fill vacancies in the office of the mayor and office of a councilman-at-large shall be conducted according to Title 19, the General Election Law.

The issue is whether the procedural nomination requirements for candidates in an election for vacant offices under a Faulkner Act Mayor-Council Plan C form of government, N.J.S.A. 40:69A-55 to 60.4, are to be governed by the provisions of Title 19, relating to direct nominations by petition for a general election, or whether procedural nomination requirements of the Faulkner Act, N.J.S.A. 40:69A-153 to 162, applying to candidates seeking office in a regular municipal election, shall apply.

The statute in question is N.J.S.A. 40:69A-60 governing vacancies in elective offices in a "Mayor-Council Plan

C" form of municipal government. The statute provides that:

Vacancies in any elective office occurring prior to the ninth Friday before general election day of any year shall be filled by election for the unexpired term at the next general election except as hereinafter otherwise provided. Such election to fill a vacancy shall be upon direct nomination by petition in the manner provided by law for the filling of vacancies in municipal offices where candidates are nominated by direct petition for a general election. Council shall fill such vacancies temporarily by appointment to serve until the qualification of a person so elected.

When any such vacancy occurs on or after the ninth Friday before general election day, it shall be filled by election for the unexpired term at the general election to be held in the following year, but if it occurs on or after such Friday in the third year of the term of such office, the council shall fill such vacancy by appointment to serve for the remainder of the term. [Emphasis added]

Defendant-intervenor seemingly argues that the legislative language in N.J.S.A. 40:69A-60 is inconsistent and ambiguous; that the Legislature intended that the procedural nomination requirements of the Faulkner Act, not Title 19, apply to elections for vacancies, and that an election for a vacancy under N.J.S.A. 40:69A-60 is a "regular municipal election" governed by the provisions of N.J.S.A. 40:69A-153, 154, 155, 156, 157, 158 and 159.1.

Judge Rosen ruled in the Law Division that Title 19 applied and that the nominations had to be made in accordance with its provisions.

Initially we observe that whenever a court is called upon to decide an election law issue, its function is rather narrow. If the statute in question is clear, the will and intent of the Legislature must be enforced. If the statute is ambiguous or conflicts with some other law, then the court must consider the election laws as being in pari materia and arrive at the intent of the Legislature. Rafferty v. Schatzman , 81 N.J. Super. 58 (Law Div.), aff'd 81 N.J. Super. 64 (App. Div. 1963).

The Faulkner Act, N.J.S.A. 40:69A-1 et seq. , was adopted as an essentially integral, ...


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