Horwitz v. Reichenstein

• Decision Date: 22 March 1954
• Docket Number: No. A--121,A--121
• Citation: 15 N.J. 6,103 A.2d 881
• Parties: HORWITZ v. REICHENSTEIN.
• Court: New Jersey Supreme Court

Page 6

15 N.J. 6

103 A.2d 881

HORWITZ v. REICHENSTEIN.

No. A--121.

Supreme Court of New Jersey.

Argued March 15, 1954.

Decided March 22, 1954.

Irwin LeWine, Newark, for appellant.

Joseph A. Ward, Newark, for respondent.

The opinion of the court was delivered by

VANDERBILT, C.J.

1. The plaintiff was a candidate for the office of ward councilman from the East Ward of Newark at the city election to be held on May 11, 1954, for the selection of a mayor, four councilmen at large and five ward chairmen, one of whom is to be chosen from each of the five wards set up for that purpose under the Mayor-Council Plan C of the Faulkner Act, N.J.S.A. 40:69A--55 to 40:69A--60.

In his petition for nomination the plaintiff gave as his address 168 Adams Street in the East Ward, but the superintendent of elections ruled that his residence was at 96 Pomona Avenue in the South Ward and that he would strike the plaintiff's name as a registered voter at the Adams Street address. The plaintiff did not contest the decision of the superintendent of elections.

Contending that a candidate for ward councilman does not have to be a resident of the ward in which he seeks nomination, the plaintiff brought suit in the Essex County Court against the City Clerk of Newark, seeking a declaratory judgment on the question. The defendant moved for summary judgment which was granted. The plaintiff appealed to the Appellate Division of the Superior Court and because of the public importance of the issue and the necessity for a speedy decision we certified the appeal on our own motion.

II. The appellant contends that there is no provision in law requiring candidates for the office of ward councilman to reside in the ward from which they are elected, notwithstanding the language of the Faulkner Act pertinent to this particular election:

'They shall be elected at large and By wards at a regular municipal election in the following manner: * * *

'(d) in a municipality having five wards and nine councilmen, one councilman shall be elected From each ward and four at large.' (Italics supplied) N.J.S.A. 40:69A--59

The applicant contends that the italicized words refer only to the electorate in a designated geographical unit and not to the residence of the candidate, but this is a strained construction which does not comport with the design of the particular type of government adopted in Newark under the Faulkner Act. The Mayor-Council Plan C is intended to provide four councilmen at large representing the entire electorate of the municipality, as a United States senator represents his state, and five ward councilmen, each representing one of the new wards especially set up for the purpose of this election, N.J.S.A. 40:69A--13, as a congressman represents his district. Not only would lack of residence in his ward by a ward councilman imperil the representation of the ward in the sense intended by the statute, but it would lead to the overrepresentation of certain wards and the underrepresentation of others--a vice in the second branch of any legislative body.

At the most, all that can be said for the appellant's contention is that the language of the quoted section of the Faulkner Act is ambiguous. If so, it is our clear duty to choose that construction which will carry out the legislative intent of the statute as a whole, and that the contention urged by the appellant clearly does not do. If the Newark Charter Commission which under the statute in the first instance had to make the choice of which of several forms of municipal government provided for in the Faulkner Act should be adopted by the city, N.J.S.A. 40:69A--12, had desired to have all the elective municipal officials chosen at large, it could have selected Mayor-Council Plan A, B or E providing for such an election, N.J.S.A. 40:69A--34, 52, 71. Instead it chose Plan C and in its report gave the reasons for this selection:

'* * * The Commission is convinced that the election of five councilmen from wards and four at large will achieve the principal advantage of both methods of election. * * *

The election of five councilmen from newly created wards will provide, For the first time in many years, adequate representation from all five of the major areas of the city--north, east, south, west and center. It will also enable the principal elements of our population to obtain proper representation on the municipal council. If representative government is to be effective in Newark, each important area and segment of our population should have a spokesman in the legislative body. Such representation should not be left to chance or to tiein agreements among candidates for election at large. * * *

'A particular attraction favoring the election of some councilmen from wards is the fact that ward elections will enable persons of limited financial resources to conduct door-to-door or neighborhood campaigns in their own wards, where they would be most likely to be known. The city has been deprived of the services in public office of many fine citizens * * * who have been required to be elected on a citywide basis. With ward elections, moreover, a qualified person known principally in his own ward will be able to run for ward councilman prior to establishing a citywide reputation. * * *

'The election of some councilmen from wards is likely also to serve as a brake upon the domination of the city administration by a single group or political organization. * * *'

In making these comments the Newark Charter Commission was not indulging in academic political speculation. It was aware of the fact that for many years under the Walsh Act, R.S. 40:70--1 et seq., N.J.S.A., a majority of the five city commissioners had come from a single ward and it was seeking to obviate a recurrence of that unfortunate situation.

The Faulkner Act, moreover, does not purport to stand alone, despite the appellant's contention to the contrary. Thus it provides that 'the municipal...