
    FREDERICK A. SCHWARTZ v. AUGUST L. WACHLIN.
    Argued July 5, 1916
    Decided July 11, 1916.
    The Walsh act, as originally passed, required that the votes cast in favor oí the adoption of the act equal thirty per cent, of the votes cast for members of the general assembly at the last general election immediately preceding the submission of the act. The amendatory act of 1915 (Pamph. L., p. 12) requires thirty per cent, of the total number of legal ballots cast at the last general election for members of assembly, &c. Held, that the number of votes cast in favor of the adoption of the act must equal thirty per cent, of the total number of legal ballots cast in the municipality, regardless of whether or not such votes were cast for a member or members of the assembly, the words “for members of assembly” in the amendatory act being merely descriptive of the particular election referred to. ■
    On rule for mandamus.
    
    Before Justices Swayze, Minturn and Kalisch.
    For the rule, Frederick K. Hopkins and George J. McEwan.
    
    Opposed, John J. Fallon.
    
   The opinion of the court was delivered by

Swayze, J.

We think the writ must be refused. The Walsh act, as originally .passed, required that the votes cast in favor of the adoption of the act equal thirty per cent, of the votes cast for members of the general assembly at the last general election immediately preceding the submission of the act. This was changed in 1915 (Pamph. L., p. 12), and the act now requires thirty per cent, of the total number of legal ballots cast in such city at the last general election for members of assembfy immediately preceding the submission of the act. The title of the act of 1915 shows that it was meant to regulate the procedure in towns as well as in cities and other municipalities, and the word “city” is undoubtedly used in a general sense and means municipalities, just as “towns” in the constitution was held to include cities. The provision applies, therefore, to the town of West Hoboken.

The most significant change made by the legislature in 1915 was to require thirty per cent, of the total number of legal ballots cast. This is very different from thirty per cent, of the votes cast for members of the general assembly as required by the act of 1911. Perhaps the change was due to the greater ease and certainty in ascertaining the number of legal ballots east than was possible with reference to the number of votes cast for members in counties where more than one member could be voted for by each elector. The addition of the word “total” emphasizes this requirement. The total of legal ballots cast might, and probably would, bo greater than the votes east for members of assembly, since some voters might well fail to vote for the member or members, or some of them.

This construction is sustained by the change in the collocation of the words. Votes cast for members of the general assembly can only refer to votes for such members. Votes east at the last general election for members of assembly naturally refer to the ballots east whether for members of assembly or other officers. The words “for members of assembly” are descriptive of the general election. That they are descriptive is shown also by their interpolation between the words “general election” and the words “immediately preceding,” which can refer only to the words “general election.”

Nor can it be said that the words “for members of assembly” were unnecessary to describe a general election. We have general elections at which members of the assembly are not voted for. Elections to pass on proposed constitutional amendments are general and are not uncommon; and we have now begun to have acts of the legislature submitted to a referendum of the whole state. Such elections may become more frequent. Constitutional elections necessarily occur at a different date from elections for members of assembly; referendum elections for the whole state are general and may occur at different dates. It was, therefore, necessary for the legislature to define what general election it meant.

The rule is discharged, since less than thirty per cent, of the total number of legal ballots cast were in favor of the adoption of the act. No costs will be allowed.  