Michaelson v. Wall Township.

92 N. J. L.

of this notice is important because the hearing upon the petition is made a public hearing, and the council is required to hear any objections that may be made to the petition, and also any evidence that may be submitted at the hearing whether or not said petition is sufficient. (Section 4.) Also by section 10 it is provided that at the hearing on the petition such governing body shall keep a record of the hearing and the testimony presented by the petitioners, and their opponents may be represented in person or by attorney, and shall have the right to have copies of all the papers and proceedings and a transcript of the testimony, and the right to present evidence and to cross-examine witnesses. Hence, it is obvious that the hearing is judicial or, at least, quasijudicial and, according to the well-known rule, the statutory procedure should be strictly followed, especially as relates to the giving to persons interested proper notice and an opportunity to be heard. In the case of Wall Township the evidence satisfactorily shows that notices were not posted in time, and it also appears by the testimony of the prosecutor that he was not aware of the council meeting. This we think was fatal and vitiated all subsequent proceedings, including the election.

In the case of Frelinghuysen Township the election was held on the twelfth of the month, and it is objected that the notices were dated on the tenth. The date is unimportant; it appears that they were posted on the fifth, and they cannot be invalidated because they were dated wrong.

As to the advertisement, it appears in the Wall case that there were no advertisements, and this is an additional reason for holding the election in that township invalid. In the Frelinghuysen case the advertisement was had, but not at least five days before the council meeting. On this point the language of the act is a trifle obscure, but we think the plain legislative intent was that there should be five days' notice by advertisement as well as by posting. In opposition to this it is urged that where there are weekly papers this requirement, if enforced, might compel the insertion of the advertisement

92 N. J. L.

Michaelson v. Wall Township.

in the second issue of the paper preceding the meeting. There seems, however, to be no hardship in this and, at most, it would require publication in an issue appearing eleven days before such meeting. The exact language of the act is "certified copies of the notice for the hearing on such petition shall, at least five days before the date fixed for such meeting, be posted," &c., "and a copy of said notice shall also be published by said clerk at least once in a newspaper published in such municipality, or if none then," &c. We do not think that the intention of the legislature would be fulfilled by publishing an advertisement in a newspaper appearing, for example, on the day before the election. We think, on the contrary, that the legislature intended five days' notice to be given to all citizens who might chance to read it on the bulletins where it was posted, or by a newspaper likely to come into their houses. Such advertisement not having been had in the township of Frelinghuysen, the result is to vitiate the election in that township.

The next objection is that in all three cases the petition was signed by one of the municipal council and that said councilman had such an interest in the result as to disqualify him to sit in judgment on the sufficiency of the petition. To this, however, we do not agree. In the case relied on, Traction Company v. Board of Works, 56 N. J. L. 431, the councilman challenged was a stockholder in the street railway whose privileges were under consideration-a very different affair. We do not think it has ever been held that a councilman was disqualified from passing on a petition for a public improvement in his municipality because he happened to have signed it himself. In the case of Batcheler v. Avon-by-the-Sea, 78 Id. 503, a petitioner for the improvement acted as a commissioner of assessment, and this was held legitimate. The objection should not prevail.

The next objection is that many of the petitioners did not state the name of the street or road on which they resided as provided in the statute. This requirement we think was merely directory and for the convenience of the governing

Michaelson v. Wall Township.

92 N. J. L.

body in ascertaining the genuineness and legitimacy of the signatures. In connection with this it is urged in the Frelinghuysen case that it did not appear after their signatures that they lived in the municipality at all; but this is distinctly stated in the body of the petition and we think that is sufficient.

Next, in the Blairstown case, it is objected that the township was incorrectly named in that in the petition it is called "The township of Blairstown, county of Warren, State of New Jersey," whereas the correct legal name of said township is "The township of Blairstown in the county of Warren." We hardly think that this objection needs special discussion, or that it is necessary to spend time on the similar objections to the affidavits to the petition where it is named as Blairstown township. The act requires that the municipality shall be "designated," and quite obviously if it is designated in such a way as to be recognized and differentiated from any other municipality, this should reasonably be sufficient.

We also consider that it was sufficient for the petitioners in signing their names to use initials instead of writing out the first and middle names in full. Nor, in our judgment, was it fatal to the procedure that in one or more cases the copies posted were not certified. The act prescribes that they shall be certified, but contains no formula for such certificate. After all, the essential thing is that there shall be legible notice to all persons interested of the intention of holding a council meeting at a specified time and place not less than five days after the promulgation of the notice. We should not be willing to set aside an election because the municipal clerk had failed to add an official certificate of the genuineness of the copy.

Finally, in the Frelinghuysen case, it is urged that the election was invalid because of certain matters not appearing on the face of the minutes or the files, to wit, that the minutes do not recite the posting and publication of the notices; that there is no affidavit of the town clerk with respect thereto, and no adjudication of the sufficiency of the preliminary pro

92 N. J. L.

Michaelson v. Wall Township.

ceedings by him, that there is no affidavit of publication in the newspaper, that the minutes do not recite that three committeemen named were in fact the township committee of said township. All of these objections seem frivolous; it is not the minutes or the files that make or mar the legal sufficiency of the procedure, but the actual facts with relation to such procedure; if the statute was in fact followed the election cannot be invalidated because, for example, the town clerk failed to file an affidavit that the notices were posted, though in fact he had posted them. Again in the same case it is argued that the entry on the minutes relating to the sufficiency of the petition is itself insufficient because it does not adjudge the sufficiency of the petition but only that it is signed by thirty per cent. of the voters. This, we think, is answered by the language of the act itself in section 6, that if the municipal body shall find the petition to have been signed by more than thirty per cent. of the voters, then the petition shall be deemed sufficient, and the governing body shall forthwith order an election. The governing body having found the petition to have been signed by at least thirty per cent. of the voters, the adjudication of sufficiency would seem to have followed as a matter of course.

These, we think, are all the objections urged by counsel against the sufficiency of the procedure.

The result we reach is that in the Wall case the election is invalid and must be set aside for failure to post notices of the council meeting and failure to advertise as required by the act; that in the Frelinghuysen case the election should be set aside because of the failure to advertise in due season; in the Blairstown case the writ should be dismissed as nothing appears, either on constitutional grounds or in the procedure, that should invalidate it.

Plainfield v. Commissioners.

92 N. J. L.

THE

INHABITANTS OF THE CITY OF PLAINFIELD, PROSECUTORS, v. THE COMMISSIONER OF MUNICIPAL ACCOUNTS, THE SINKING FUND COMMISSION OF THE INHABITANTS OF THE CITY OF PLAINFIELD, AND THE UNION COUNTY BOARD OF TAXATION. RE

SPONDENTS.

Submitted July 3, 1918-Decided November 6, 1918.

1. The Sinking Fund act of 1917 (Pamph. L., p. 757) was intended to deal with and remedy an existing situation by applying uniform rules to the amortization of municipal bonds, outstanding as well as those thereafter to be issued, and under the expert supervision of an officer specially appointed for that purpose with state-wide powers.

2. The Sinking Fund act of 1917 (Pamph. L., p. 757) does not impair the obligation of a municipality's contract with bondholders because it makes provision for the payment of the bonds by gradually accumulating the money to pay for such bonds in a sinking fund.

3. The determination of the question whether municipal bonds are to be classified as serial bonds or term bonds must depend upon the definition of those words as laid down in the statute itself rather than by the meaning ordinarily placed upon them in the business world.

On certiorari.

Before Justices PARKER and MINTURN.

For the prosecutors, Charles A. Reed.

For the respondents, Herbert Boggs, assistant attorneygeneral.

The opinion of the court was delivered by

PARKER, J. This writ brings before us an order made by the commissioner of municipal accounts of this state, an official whose office seems to date from the approval of chapter 154 of the laws of 1917 (Pamph. L., p. 472) which was amended in the present year. Pamph. L. 1918, p. 1003.