Fritz, Seidman and Milmed.
Plaintiffs seek to have placed on the ballot for submission to the voters of Essex County at the November 4 general election the question:
Shall the County Executive Plan of the Optional County Charter Law be adopted for Essex County, with provision for a Board of Freeholders of nine (9) members elected for concurrent terms and elected five (5) by district and four (4) at large?
To this end plaintiffs proceeded by direct petition under the pertinent provisions*fn1 of the Optional County Charter Law, L. 1972, c. 154, N.J.S.A. 40:41A-1 et seq. , also referred to as the "Musto Act." The petition is required to be signed "by a number of registered voters not less than 15% of the number of persons registered to vote in the county as of 40 days before the primary or general election next preceding the date of filing of such petition." N.J.S.A. 40:41A-20. It is undisputed that the number of signatures required by that percentage is 56,721. Upon the filing of such petition the county clerk is, in the circumstances here presented, required to "cause the question to be submitted at the general election occurring not less than 60 days next following the filing of the petition * * *." N.J.S.A. 40:41A-21.
The provisions of the Optional County Charter Law permitting the adoption of an optional plan of county government upon petition and referendum, invoked by plaintiffs, omit any reference to the procedures for review of petitions so filed in order to determine their validity. Plaintiffs argue that since the Optional County Charter Law was in large measure modeled after the Optional Municipal Charter Law N.J.S.A. 40:69A-1 et seq. (Faulkner Act), the procedures for review provided in the Faulkner Act*fn2 should govern the review of petitions filed under the Musto Act. Defendants, however, argue that the absence of petition review procedures in the Optional County Charter Law brings into operation
the review provisions of the Elections Law, i.e., N.J.S.A. 19:13-13,*fn3 made applicable by N.J.S.A. 19:1-4.*fn4
The pertinent initiative and referendum review provisions of the Musto Act read as follows:
All petition papers comprising an initiative or referendum petition shall be assembled and filed with the county clerk as one instrument. Within 20 days after a petition is filed, the county clerk shall determine whether each paper of the petition has a proper statement of the circulator and whether the petition is signed by a sufficient number of qualified voters. After completing his examination of the petition, the county clerk shall certify the result thereof to the board at its next regular meeting. If he shall certify that the petition is insufficient he shall set forth in his certificate the particulars in which it is defective and shall at once notify at least two members of the committee of the petitioners of his findings. [ N.J.S.A. 40:41A-107]
An initiative or referendum petition may be amended at any time within 10 days after the notification of insufficiency has been served by the county clerk, by filing a supplementary petition upon additional papers signed and filed as provided in case of an original petition. The county clerk shall, within 5 days after such an amendment is filed, examine the amended petition and, if the petition be still insufficient, he shall file his certificate to that effect in his office and notify the committee of the petitioners of his findings and no further action shall be had on such insufficient petition. The finding of the insufficiency of a petition shall not prejudice the filing of a new petition for the same purpose. [ N.J.S.A. 40:41A-108]
By September 5, 1975, the last day*fn5 for filing petitions for the November 4, 1975 general election under the direct petition and referendum sections of the Musto Act, N.J.S.A. 40:41A-19 through 22, plaintiffs had fined with the County [136 NJSuper Page 428] Clerk of Essex County their petitions seeking a referendum election upon the question hereinbefore set forth. The petitions contained 61,608 signatures. Plaintiffs requested the submission of the question to the voters at the forthcoming general election. By letter of September 8, 1975*fn6 a citizen's request was made to the county clerk for a "complete check of each and every name submitted to determine the validity and eligibility involved." On September 9, 1975 the county clerk requested the county commissioner of registration (commissioner) to review the signatures on the petitions and certify how many were valid and how many were not valid. Such review has been undertaken by the commissioner, who filed his final report thereon on October 1. On September 19 plaintiffs filed their complaint in lieu of prerogative writs in the Law Division, seeking various avenues of relief, all directed toward having the proposed public question placed on the November 4 election ballot. On September 26 the assignment judge for Essex County, after hearing, filed his judgment in the matter directing, among other things, that the Commissioner, in performing the validation process, "include as valid signatories all registered voters of the County of Essex who were registered as of September 5, 1975" but not those registered thereafter; that the commissioner complete the validation process by 4 P.M. on September 30, 1975; that on or before October 6, 1975 the county clerk rule on ...