On appeal from the Superior Court, Law Division, Mercer County.
King, Francis and Furman. The opinion of the court was delivered by Furman, J.A.D.
[180 NJSuper Page 244] This accelerated appeal is from summary judgment in a prerogative writ action in favor of defendants and intervenor. Plaintiffs challenged defendant Hamilton Township clerk's rescission of his prior certification of a petition signed by over 7,000 voters for a referendum on a rent control ordinance
adopted by defendants mayor and council, which would have become effective in the township on July 2, 1981 except for the referendum petition. In upholding the municipal clerk's rescission, Judge Levy granted ten additional days until August 3, 1981 for circulation and filing of a new referendum petition conforming to law. We granted a further stay pending this appeal.
N.J.S.A. 40:69A-186 provides:
All petition papers circulated for the purposes of an initiative or referendum shall be uniform in size and style. Initiative petition papers shall contain the full text of the proposed ordinance. The signatures to initiative or referendum petitions need not all be appended to one paper, but to each separate petition there shall be attached a statement of the circulator thereof as provided by this section. Each signer of any such petition paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or other description sufficient to identify the place. There shall appear on each petition paper the names and addresses of five voters, designated as the Committee of the Petitioners, who shall be regarded as responsible for the circulation and filing of the petition and for its possible withdrawal as hereinafter provided. Attached to each separate petition paper there shall be an affidavit of the circulator thereof that he, and he only, personally circulated the foregoing paper, that all the signatures appended thereto were made in his presence, and that he believes them to be the genuine signatures of the persons whose names they purport to be.
The township clerk determined the insufficiency of the referendum petition upon information that the separate petition sheets omitted the names and addresses of the five-member Committee of the Petitioners at the time the voters affixed their signatures, although the names and addresses of the Committee of the Petitioners appeared on each separate sheet at the time of filing with the township clerk. That omission was conceded factually before Judge Levy.
Two reported decisions have construed the provision of N.J.S.A. 40:69A-186 that the names and addresses of the Committee of the Petitioners "shall appear on each petition paper."
In Lindquist v. Lee , 34 N.J. Super. 576 (Law Div. 1955), a challenge to a declaration by the municipal clerk of the insufficiency of a referendum petition was rejected. The names and addresses of the Committee of the Petitioners did not appear on each separate petition sheet when it was circulated for signatures.
The petition sought a referendum under another section of the Faulkner Act, N.J.S.A. 40:69A-1 et seq. , for a change in the form of government. Judge Mariano concluded in Lindquist (at 581) that "the clear and unambiguous language of N.J.S.A. 40:69A-186 requires the appearance of the names and addresses of the five voters designated as the committee of the petitioners on the petition paper when the registered voter signs the same."
The Supreme Court in Pappas v. Malone , 36 N.J. 1, 5 (1961), expresses its disagreement with Lindquist , but on an issue not relevant to the appeal before us. Pappas , like Lindquist , was not an action to review the validity of a petition for a referendum on repeal of an ordinance, as the present action is, but an action to set aside a declaration of the insufficiency of a petition for a referendum under N.J.S.A. 40:69A-25 for approval or rejection of a reversion to the immediately prior form of government.
The Supreme Court notes in Pappas that there is no cross-reference in N.J.S.A. 40:69A-25 to the requirements of form for referendum petitions set out in N.J.S.A. 40:69A-186. By contrast N.J.S.A. 40:69A-1, providing for a referendum on election of a charter commission, and N.J.S.A. 40:69A-19, providing for a referendum on adoption of a Faulkner Act form of government, but incorporate by cross-reference the requirements of form in § 186. Thus, the inclusion of the names and addresses of a Committee of the Petitioners is not required under § 25 as a matter of form, unless a legislative oversight is presumed. The Supreme Court concluded that it need not determine whether there was such legislative oversight, because the requirement that the names and addresses of the Committee of Petitioners appear on each separate petition sheet is a matter of substance and not of form and, ...