Reed v. Township of Independence

105 A. 8, 92 N.J.L. 102, 7 Gummere 102, 1918 N.J. Sup. Ct. LEXIS 11

• Court: Supreme Court of New Jersey
• Decided: November 18, 1918
• Status: Published

Opinion

The opinion of the court was delivered by

Mintubn, J.

The constitutional questions argued by counsel upon this hearing have been settled adversely to the petitioner’s contention, in the opinion recently filed in this court, by Mr. Justice Parker, in Michaelson v. Wall Township et al., ante p. 72.

It remains to deal only with the questions of procedure presented and argued.

It is manifest that under the decision referred to, that the official advertising of the election was in this instance defective. “

In other words, the statutory requirement concerning the posting of the notice of the special election was not complied with, in that it was published but eleven, instead of fifteen, clays before the election.

The procedure is statutory and must be strictly construed in the interest of the public.

If extreme liberality of construction in this respect be countenanced, no reason seems perceivable as was said in the township of Wall case (supra), why a notice of one day prior to election will not suffice, and thus a plain statutory requirement may he in fact, and for all practical uses, dispensed with.

A palpable and insuperable objection also exists regarding the maimer in which the township cleric was chosen at the township meeting on April 6th, 1918. It appears the regular clerk was absent, and a bystander, who was not a resident of the township, but resides at Hackettstown, was appointed by the township committee to act in place of the clerk.

In this respect the language of the act concerning municipal officers is both clear and mandatory. “Every person holding an office, the authority or duties of which relate to a city or township, shall reside within such city or township.” Comp. Stat., p. 3783, § 1.

No question can exist that pro hac vice the substituted clerk was an officer transacting the official business of the township, within the language of the act, and his appointment was therefore unlawful, and the meeting itself was invalid, because of the failure to make a legal appointment to that office.

These objections to the validity of the procedure being sustained, it becomes nnneessary to consider the remaining reasons presented and argued by counsel at the bearing.

The election in question therefore, held in the township of Independence, and reviewed in this proceeding, must he set aside.