Ford v. Gilbert

• Decision Date: 28 December 1916
• Parties: FORD v. GILBERT et al.
• Court: New Jersey Supreme Court

99 A. 621

89 N.J.Law 482

FORD

v. GILBERT et al.

Supreme Court of New Jersey.

Dec. 28, 1916.

Certiorari by Harry B. Ford, to review proceedings of James S. Gilbert and others as Commissioners, and Joseph R. Malone as City Clerk, of the City of Bordentown. Order of the board set aside.

Argued June term, 1916, before SWAYZE, MINTURN, and KALISCH, JJ.

Hutchinson, Swaim & Herron, of Bordentown, for prosecutor. Nelson B. Gaskill, of Trenton, for respondent.

KALISCH, J. The prosecutor seeks in this proceeding to reverse the action of the city clerk of Bordentown, who, on a petition filed by the prosecutor for an initiative ordinance, certified, as follows:

"Bordentown, N. J. May 31, 1915.

"To the Board of Commissioners of the City of Bordentown. This is to certify that I have examined the attached petition for an 'initiative' ordinance, and find that it is insufficient as required by the act regulating and providing for the government of cities, towns, boroughs, and other municipalities within this state. Chapter 221, Laws of 1911, and supplements thereto.

"Joseph R. Malone, City Clerk."

The petition was filed on May 21, 1915. It is conceded that at the time the petition was filed there was attached to it the requisite number of signers, namely 15 per cent. of the voters of the city at the last general election.

The statutory period of 10 days within which it was the duty of the city clerk to examine the petition and certify to the commissioners the sufficiency of the signers expired at midnight, on May 31, 1915. It appears that late in the afternoon of that day, and prior to the meeting of the commissioners, there was presented to the city clerk a petition, signed by 21 voters who had signed the original petition, stating that they had signed such original petition under a misapprehension, and asking that their names be withdrawn therefrom.

The petition was filed under the sixteenth section of an act, entitled "An act relating to, regulating and providing for the government of cities, towns, boroughs and other municipalities within this state," approved April 25, 1911 (P. L. 1911, p. 462), which section provides, as follows:

"Any proposed ordinance may be submitted to the board of commissioners by petition signed by electors of the city equal in number to the percentage hereinafter required. The signatures, verification, authentication, inspection, certification, amendment and submission of such petition shall be the same as provided for petitions under the last section. [The section referred to is section 15 of the act, p. 476 under the caption, "Recall."]."

Section 16 then further prescribes that if the petition accompanying the proposed ordinance be signed by electors equal in number of 15 per centum of the votes cast at the last preceding general election, and contains a request that the said ordinance be submitted to a vote of the people, if not passed by the board of commissioners it shall be the duty of the board either to pass such ordinance or call a special election, unless a general election is fixed within 90 days thereafter, at which election, either general or special, such ordinance shall be submitted without alteration to the vote of the electors of the city.

In April, 1915, the Legislature passed a supplement to the act of 1911, entitled "A supplement to an act entitled 'An act relating to, regulating and providing for the government of cities, towns, townships, boroughs, villages and municipalities governed by board of commissioners or improvement commissions in this state,' approved April 25th 1911, the title of which was amended to read as above by act approved April second, 1912." P. L. 1915, p. 622. The act of 1915 makes some...