
    IN THE MATTER OF THE APPLICATION OF SEBASTIAN P. VACCARO, A RESIDENT AND VOTER OF THE CITY OF ASBURY PARK, FOR A DETERMINATION OF HIS RIGHTS, STATUS AND OTHER LEGAL RELATIONS UNDER THE STATUTES OF THIS STATE, ET AL.
    Superior Court of New Jersey Law Division
    Decided Oct. 29, 1948.
    
      
      Ward Kremer, for petitioner. .
    
      Kays Morgan, for councilman Roland J. Hines.
    
      Harry Shure, for interveners, Carney Lebra, et als.
    
   Brown, A. J. S. C.

Sebastain P. Vaccaro, who- claimed to be a voter and resident of the City of Asbury Park, presented to the New Jersey Supreme Court in August, 1948, a petition for a declaratory judgment adjudging his “rights, status and other legal relations” in connection with a petition stated to have been signed by qualified voters in excess of twenty per centum, o-f the voters of Asbury Park, It is alleged in the petition that a “controversy” has arisen in Asbury Park over the petition signed by the qualified voters, and whether the same should be filed and an election to proceed thereon, under R. S. 40:70-1 et seq., as claimed by the petitioner, or under R. S. 40:8S — 1 et seq., as alleged by those in opposition.

The matter in controversy was assigned to this Court for determination, before the Mayor and other city officials were ordered by the Supreme Court to be joined as parties to the proceeding, and since there has been joined, upon application, a number of legal voters in the municipality who support the petition. On September 30, 1948, an' answer was filed by the Mayor and other officials made parties, in which it was denied that R. S. 40:70-1 et seq., had any application for the reasons alleged; that said statutes “deal with the establishment for the first time of the commission form of government; whereas the pertinent statutes are those dealing with the procedure for the abandoning of municipal form of government adopted under R. S. 40:8S — 1 et seq.” The answer further charges that the relief prayed for should not be granted because the petition for a change in government was not filed; that the petitioner, Sebastian P. Vaccaro, is not a resident and qualified voter of Asbury Park and has no rights or legal relations that are effected and that he has no right to- file the application for a declaratory judgment.

Depositions were taken and oral arguments were heard. During this period the petition with the signatures of the legal voters was presented to the City Clerk, who refused to retain the same. Depositions relating to petitioner’s legal residence disclosed that the petitioner had a business office in Asbury Park, with rooms above, which he claimed as his “legal residence”, while his wife and children lived continuously in a house owned by the petitioner and his wife in an adjoining municipality, in which the telephone and other utility services were listed in the petitioner’s name, and paid for by him. It also was shown that he stayed quite frequently at the address outside of Asbury Park. During an oral argument, on this subject, it was conceded that residence was not pertinent to the issue since legal residents of Asbury Park were now parties in the case favoring the petition, and it was admitted by the answering defendants that the petition was presented to the City Clerk. Though these defendants have consented to the elimination of their objection that the petitioner is not a legal resident, and the Court has consented thereto, it should not be understood that the Court encourages a split loyalty in community or family life.

On October 21, 1948, there was filed with the court final briefs and a stipulation signed by all the parties in the case, including the interveners; in which it is stipulated the latter are residents and qualified voters of Asbury Park; that the question of the residence of the .petitioner, Sebastian P. Vaccaro, is not material to the determination of the issues in the case and that the City of Asbury Park was governed by a commission form of government from the month of March, 1915 to December 5, 1933, and since the last mentioned date to the present time under the Municipal Manager Law.

The only issue remaining for determination is whether the petitioners who seek to change the City’s present form of government should proceed under statute R. S. 40:70-1 et seq., or R. S. 40:85 — 1 et seq.

A comparison of the statutes last mentioned will help to determine which, if any one of them, controls absolutely the procedure to be followed in effecting a change of government from a Municipal Manager form to a Commission form.

of the Commission The following are pertinent chapters Government Law:

R. S. 40:70-3 — “All municipalities which shall have heretofore adopted the provisions of the act entitled ‘An act relating to, regulating and providing for the government of cities, towns, townships, boroughs, villages and municipalities governed by boards of commissioners or improvement commissioners in this state’ (title, as amended), approved April twenty-fifth, one thousand nine hundred and eleven, as amended and supplemented and all municipalities which shall hereafter adopt the provisions of chapters 70 to 76 of this title (Sec. 40:70-1 et seq.), shall have the commission form of government and be governed in the manner hereinafter in said chapters 70 to 76 set forth.”
R. S. 40:71-1 — “The legal voters of any municipality not governed by chapters 70 to 76 of this title (Sec. 40:70-1 et seq.) may adopt said chapters at an election held in such municipality, to be called by the municipal clerk upon request or petition in writing of twenty per cent of the persons qualified to vote at the last general election as shown by the registry of qualified voters used at such election.”
R. S. 40:71-2 — “Upon the filing of the petition or request in writing with the clerk, he shall forthwith call an election, to be held on the third Tuesday following the date of the filing of the petition, and shall cause public notice of the time and place of holding the same to be given by advertisement signed by himself and set up in at least twenty different places in the municipality and published for at least six days previous to the time of the election in at least one newspaper printed and published in the municipality, and if there be no such newspaper then in a newspaper circulated therein.”

The following are pertinent chapters of the law relating to the abandonment of Municipal Manager form of government:

R. S. 40:85-1, as of January 22, 1945 — “Any municipality which shall have operated for more than four years under the provisions of the act entitled ‘An act relating to, regulating and providing for the government of municipalities, except counties, by a municipal council and a municipal manager,’ approved March nineteenth, one thousand nine hundred and twenty-three, or under the provisions of this subtitle, or both, may at any general election abandon such organization thereunder and may resume the form of government under the law under which it was being governed when said act or this subtitle was adopted. The procedure shall be as hereinafter in this chapter provided.
“The provisions of this chapter shall not apply to any municipality which immediately prior to the adoption of said act or of this subtitle, had operated under the provisions of chapters 70 to 76 of this title (Sec. 40:70-1 et seq.). Any such municipality may revert to its former form of government by electing to do so under the provisions of said chapters 70 to 76.”
On January 23, 1945, the last stated paragraph, in quotations, was stricken from R. S. 40:85-1 as amended by P. L. 1947, Chapter 2, p. 12.

It appears that the confusion resulting in the controversy in this case was caused by the amendment to R. S. 40:85 — 1 in P. L. 1947, C. 2, by eliminating the exception contained in the last paragraph of the original act.

COMPARISON OF COMMISSION GOVERNMENT LAW AND MUNICIPAL MANAGER LAW AS TO ELECTIONS

COMMISSION GOVERNMENT LAW

1. Calling Election

40:71-1; 40:71-2 — Petition filed with clerk. Clerk forthwith calls election for third Tuesday after filing petitions.

2. Time of Taking Effect

40:75-1. If voters vote to adopt commission government, then first commissioners are elected fifth Tuesday following adoption election, and take office on first Tuesday after their election.

3. Nomination of New Candidates for Office

40:75-3. Candidates for commissioner are nominated by petition consisting of individual certificates signed by one half of one per cent of the voters at the last general election.

4. Election of New Officials

40:75-1. First officials elected 5th Tuesday after vote to adopt commission government.

40:75-2. Commissioners elected 2nd Tuesday in May-every 4th year. Hold office for four-year terms.

MUNICIPAL MANAGER LAW IN RE ABANDONMENT

1. Calling Election

40:85-7 — Clerk has ten days to examine petitions. Then certifies them to municipal council.

40:85-8 — Municipal council passes resolution and forwards same to county clerk.

40:85-9 — County clerk places question on ballot at next general election.

2. Time of Talcing Effect

40:85-10. If voters vote to abandon municipal manager act, the abandonment takes effect January first of the second year after the election.

3. Nomination of New Candidates for Office

40:85-11. Candidates nominated at primary election in year after the general election at which municipal manager law was abandoned.

4. Election of New Officials

40:85-11. After general election at which vote to abandon is adopted- and in the primary election of the succeeding year, officials are nominated for new form of government. They are elected at general election and take office January 1 of the 2nd year following vote to abandon.

Our present Constitution provides, in section VII, paragraph 5: “No law shall be revived or amended by reference to its title only, but the act revived, or the section or sections amended, shall be inserted at length. No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of the act or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.” R. S. 40 :85 — 1 et seq., does not amend 40 :70-1 et seq., in accordance with the Constitution as above stated. R. S. 40 :85 — 1 as amended by P. L. 1947, C. 2, removed the exception by which R. S. 40 :70 — 1 et seq., was without the provisions of the original act and did not by any provision declare that R. S. 40:70-1 et seq., was amended or controlled by R. S. 40:85 — 1.

The evident reason for the adoption of the above stated provision in the Constitution was to prevent covert and incautious legislation; Baldwin Lumber Co. v. Moskowitz, 15 N. J. Misc. 438. Covert and incautious intentions should not be presumed. The additional legislation should be considered as an improvement without any alteration by implication or otherwise of R. S. 40:70-1 et seq. So far as reasonably possible where two statutes are not entirely conflicting they should be harmonized and each given force and effect to that end. The legislature in enacting R. S. 40:35-1, as amended, evidently had this intention as the act is in permissive form; that is to say, it provides that a municipality under R. S. 40:85-1 “may at any general election abandon such organization” and “may resume” its former form of government.

A computation of the time required to adopt a Commission form of government according to the diagrammatic comparison above set forth, under R. S. 40:71 — 2 et seq., and until the newly elected Commissioners could take office would be nine weeks. Under R. S. 40:85 — 1 et seq., from the time of filing the petition, in this case, until the Commissioners took office would be two years and two months. It is not to be presumed that undesirable consequences were intended by the enactment of R. S. 40:85-1 et seq.; nevertheless, the results which will follow one construction or another is often a potent factor in its proper interpretation, 50 Am. Jur. p. 372, Sec. 368. It is reasonable to presume the Act last mentioned was intended to have the most beneficial operation that the language permits. The permissive character of the Act supports this conclusion. The statutes under consideration are permissive and not mandatory and relate to the same subject matter and therefore should be construed in pari materia.

In White v. Hunt, 6 N. J. L. 415, 417, Chief Justice Kinsey stated: “In the construction of the acts of the legislature, it has ever been held a sound and wholesome rule, that when divers laws are made relating to one subject, the whole must be considered as constituting one system, and mutually connected with each other.” See also In re Book’s Will, 90 N. J. Eq. 549. In Public Service Electric Co. v. Camden, 118 N. J. L. 245, it is stated that statutes which are in pari materia are to be construed together so as to effectuate a general legislative policy.

The defense that R. S. 40:70-1 et seq., pertains to “establishment for the first time of the commission form of government” is without merit, as the statute referred to does not contain such restriction. The comparison previously set forth as to methods of election, under both statutes, illustrates the advantages and disadvantages of each, depending on one’s point of view. They both affect the political rights of the parties interested. Under all the facts and law involved, a liberal and reasonable view should be taken to preserve those rights. It is the declared judgment of the Court that R. S. 40:70-1 et seq., is the statute that governs in this case and that an election be held in accordance therewith.  