Browne v. Lee

• Decision Date: 13 October 1922
• Parties: BROWNE v. LEE.
• Court: New Jersey Supreme Court

118 A. 539

BROWNE

v. LEE.

Supreme Court of New Jersey.

Oct. 13, 1922.

Application by William J. Browne for mandamus to William P. Lee. Heard on rule to show cause why writ should not issue. Application denied.

John Warren, of Jersey City, and Jacob Feinberg, of Bayonne, for relator.

Bobert H. McCarter, of Newark, and Aaron A. Melniker, of Bayonne, for respondent.

GUMMERE, C. J. The relator and others presented to the city clerk of Bayonne a petition praying for the submission to the electors of that municipality at the next general election of the question whether or not the commission form of government provided by the act entitled "An act relating to, regulating and providing for the government of cities, towns, boroughs and other municipalities within this state" (P. L. 1911, p. 463), commonly known as the "Walsh Act," and under which the city is now functioning, should be abandoned, and the city resume its charter form of government.

The clerk, acting presumably under the advice of the city counsel, refused to accept and file the petition, and thereupon the relator obtained the present rule, requiring said clerk to show cause why a writ of mandamus should not issue, commanding him to accept and file the petition, to forthwith examine the same as required by law, and to thereafter attach to the said petition his certificate showing the result of his examination, and to proceed thereon in accordance with the statute in such case made and provided. We gather from the arguments of counsel in the cause that the ground of the clerk's refusal was that the Legislature had provided no method to be followed, either by him or by any other branch of the city government, in bringing about the results sought to be obtained by the petitioner—no machinery which could be put in motion for its accomplishment.

The question to be resolved, therefore, is whether the city clerk was justified in the position taken by him, for it must be conceded that the duty asserted to rest upon him is a purely statutory one, and that therefore, unless the statute points out the steps to be taken and culminating in the election sought to be obtained by the relator and those associated with him, the writ prayed for ought not to be allowed.

Counsel for the relator insists that the Legislature has clearly pointed out the various steps to be taken from the time of the filing of the petition up to and including the holding of the election, while counsel for the respondent just as vigorously asserts the contrary to be the fact. In this situation, we are required to examine the statute itself in order to ascertain whether the one contention or the other is sound.

The section of the Walsh Act, as originally approved, which dealt with the matter of a reversion to the city charter form of government, is section 19 (P. L. 1911, p. 483). It provided that, "upon the petition of twenty-five per centum of the electors a special election shall be called at which the proposition shall be submitted; and that if a majority of the votes cast at such special election be in favor of such proposition," then the city shall thereafter be governed under its charter provisions. The section then declares that—

"The sufficiency of such petition shall be determined, the election ordered and conducted and the results declared generally as provided by article IV of this act, in so far as the provisions thereof are applicable."

An examination of the statute discloses that it contains no "article IV," nor, in fact, any other article; the whole act being divided into sections, Nos. 1 to 20, inclusive. Section 4 of the act deals solely with the powers conferred upon the governing body of the municipality and to be exercised by the several commissioners composing it. Manifestly, therefore, the phrase "article IV" was not merely the inadvertent use of the word "article" for "section." This fact is suggestive that the original draft of the statute contained a provision designated as "article IV," indicating the steps to be taken in the holding of the special elections therein provided for; that during its passage through the Legislature this provision was eliminated; and that there was an unintentional failure on the part of the legislative body to substitute anything in its place, so far as section 19 was concerned. And this theory receives support from the fact that every other section of the act dealing with the matter of elections to be held under it, viz. sections 15, 16, 17, and 18, provides in detail the various steps to be taken for the purpose of bringing about the...