(concurring). Underlying the precise question involved here — whether an incumbent in a commission form of government municipality, who is the subject of a recall election, may contingently run to succeed himself at the same election without having filed a nominating petition prior to the election — is the more basic matter of whether such an incumbent may run to succeed himself at all. As to the latter, this court intimated in In re Hackensack Recall Election, 31 N. J. 592 (1960), and expressly held in Grubb v. Wyckoff, 52 N. J. 599 (1968), as well as in the instant case, that he could, at least when recall is sought of more than one incumbent of identical offices with the same expiration date, the incumbent could have been originally elected by a plurality and a plurality vote suffices for election for the unexpired term in the event of recall. I dissented in Grubb and concurred only in the result in Hackensack because I felt that a recalled incumbent cannot run to succeed himself under any circumstances. I still hold that same view, but I am now bound by the law as determined by the majority in Grubb. Since the precise question in the instant case concerns only an application of the determined law on the basic issue, I feel compelled to join in the result reached.1
*305My belief that, under any form of government, a recalled incumbent may not run at the same election to succeed himself or any other incumbent recalled at the same time (■which time prevented expressing in the Grubb dissent) derives from what I conceive to be a common sense view. That view, based on the fundamental rationale of recall, is that, if a majority of the voters vote for recall, it is irrefutable that they do not desire that incumbent to serve any longer in his office, even though all of those so voting would not agree on who of several nominees should take his place. Such an expression ought to be enough, in all good sense, to preclude the recalled incumbent from sneaking back into office by receiving a plurality of the votes cast for the successor by reason of lack of unanimity among those voting to recall as to who that successor should be as between several nominees.* 2
*306I am of the opinion that this basic tenet inf erentially underlies the commission form of government statutory provisions governing the form of the ballot, N. J. S. A. 40:75-38, and prescribing the mechanics to be followed when simultaneous recall of more than one commissioner is sought, N. J. S. A. 40 :75-37. Section 38 specifically sets forth the form of a recall ballot, requiring, as I read it, the question of the recall of the incumbent — yes or no — to be placed first in a column and the contingent vote for his successor to follow below in the same column by listing the names of the nominees who have filed petitions for that purpose pursuant to N. J. S. A. 40 :75-32. The sample form contained in section 38 does not list the name of the incumbent in this lower portion of the column. If the Legislature intended that the incumbent be able to run to succeed himself, it seems to me that the statute would have expressly said so or at least that the sample ballot form would have so indicated. Section 37 provides that, in the event of more than one petition for the recall of a commissioner being filed at or about the same time, the elections shall be consolidated, “but the recall of each commissioner shall be a separate transaction, and the ballot shall be arranged by repeating the form provided for in section 40:75-38 of this title... in parallel columns for each commissioner sought to be recalled.” (emphasis supplied). This, to me, carries forward the same legislative intent where more than one commissioner is sought to be recalled. It also spells out that each such officeholder’s fate and the designation of his successor, if he is recalled, is to be determined separately, i. e., that, when there is more than one recall petition involving identical offices, the selection of successors should not be lumped together, with all nominees running against each other. To put it another way, I think the statute contemplates, contrary to the result reached on this point in Grubb and here, that, in the case of more than one recall, a proposed successor must select the particular incumbent’s post which he seeks. I find the same statutory intent and scheme in the analogous *307provisions of the Eaulkner act, N. J. S. A. 40:69A-172 to -174, and the municipal manager act, N. J. S. A. 40:84-14 to -16.
While I agree that the recall provisions with respect to all three forms of government are not as precise as they might be and are in need of legislative clarification, I think my view not only follows the intent of the Legislature, but also makes for less confusion in the mind of the average voter than under the interpretation prescribed by the majority in Grubb and in the instant case. Merely because a court can think of what it believes to be a fairer method of conducting the election does not justify a disregard of the method which the Legislature has provided.3 The scheme of combining two elections into one — the first to decide whether an incumbent should be recalled, and the second, a hypothetical or contingent one, to select his successor if he is ousted — is hard enough for the voter to grasp in the voting booth. It seems infinitely more difficult, if the incumbent is allowed to run to succeed himself, for the voter to grasp the further fact that, if he favors the retention of the incumbent, he should vote “No” in one place and then also vote affirmatively for the incumbent in another.4 As I *308see it, the only reason given for permitting the incumbent to run to succeed himself is that, he having originally been elected by a plurality, his defeated opponents in that original election could oust him by combining on a recall vote. The possibility seems so practically remote that I feel the Legislature must be said to have cast it to one side, in the interest of achieving clearer voter expression, by precluding an incumbent from seeking to succeed himself. That prohibition, along with the prescribed form of ballot mentioned above, results in a clearer picture to the voter of what is involved and how he may make his wishes effective.
Mountain, J., concurs in result.
For reversal—Chief Justice Weintraub and Justices Jacobs, Erancis, Proctor, Hall, Schettino and Mountain—-7.
For affirmance—None.
lnvolved here are the particular provisions authorizing recall with respect to the commission form of government (Walsh act), N. J. S. A. 40:75-25 et seq. Those provisions contain the odd and onerous requirement that an incumbent, in order to contest the recall and force an election thereon, must file an incumbent’s petition signed by at least 15% of the legal voters of the municipality. N. J. S. A. 40:75-34. No such requirement is found in the recall provisions re*305lating to the other two forms of government in which the device is authorized. (Municipalities governed by a Faulkner act form of government, N. J. S. A. 40 :69A-168 et seg.j municipalities governed by the municipal manager form of government, N. J. S. A. 40:81-6 and 40:84r-12 et seg.). Grubb involved a Faulkner act form and Hackensack the municipal manager form. As to those forms of government, a recall election is mandated simply by the filing of an adequate petition seeking the recall of an incumbent. The court in the instant case, concerned only with the situation under the Walsh act with its requirement of an incumbent’s petition to bring about an election, does not deal with how mechanically an incumbent in a Faulkner act or municipal manager municipality, who, if recalled, wishes to run to succeed himself, can assure the placing of his name on the ballot for that purpose. Must he file a nominating petition or is he to be deemed to desire to run to succeed himself and therefore is to be placed automatically on the ballot for that purpose absent some contrary expression?
As a matter of fact in this case, as also in Hackensack and as distinct from Grubb, there were only five nominees to fill the unexpired terms of the five incumbents sought to be recalled and both the incumbents and the nominees were each bracketed in the successor portion of the ballot. Thus, practically speaking, a majority vote and not a plurality was involved, but the opinion is designed to cover as well situations in which it is not simply a case of five against five and thus a plurality vote would suffice.
The Appellate Division lield in Stone v. Wyckoff, 102 N. J. Super. 26, 36-37 (1968), certif. denied 52 N. J. 254 (1968), a ease related to Grubb, that there was no constitutional violation because multiple incumbents sought to be recalled “must persuade at least 50% of the voters at the election to vote against recall whereas in the same election successor councilmen can be elected (if the recall carries) by a mere plurality.”
That this confusion is real is shown by what actually happened at the March 7 election in Union City. While recall was defeated by a substantial margin, the number of votes for the incumbents in the successor column was far less than that of the “No” votes on the question of recall. While that made no practical difference here, it does indicate to me that a large number of voters would not understand that, to be sure of retaining incumbents in office in the event a majority favored recall in a ease where there were many nominees to succeed the incumbents, they should not only vote “No” on recall, but also vote for the incumbents in the successor column.