The opinion of the court was delivered by
Kilkenny, J. A. D.Township of Brick and the four individual plaintiffs, who had been among the 26 candidates running for the seven councilman-at-large seats at the regular municipal election on May 9, 1967 and who had placed 8th, 9th, 10th and 11th in the balloting, brought a declaratory judgment action in the Law Division and thereby sought an adjudication that there must be a run-off election under N. J. S. A. 40 :69xV--160 and 161 for four of the seven council seats for which none of the candidates had received a majority vote. Defendants, who had also been candidates and who had placed 4th, 5th, 6th and 7th in the balloting, but had not obtained at least 3,291 votes to give them a majority, contended that they should be declared elected, notwithstanding their lack of a majority, because the three highest candidates had obtained a majority.
The matter was heard by Judge Martino and he entered a judgment on June 5, 1967, in which he adjudged:
(1) N. J. S. A. 40:69A-160 requires that in an election of councilmen-at-large where seven candidates are to be elected all seven such candidates must receive a majority of the votes cast.
(2) A run-off election shall be held on June 13, 1967 as required by N. J. S. A. 40:69A—161.
*404(3) The eight candidates individually named as parties in this action shall be the candidates for the office of councilmen-at-large at such run-off election and the four candidates who receive the greatest number of votes at such run-off election shall be elected to the office of councilmen-at-large.
Defendants appeal from this judgment. We affirm.
Township of Brick adopted Mayor-Council Plan B, N. J. S. A. 40:69A-49 ei seq., under the Optional Municipal Charters Act, at the 1966 general election and provided for the election of seven councilmen-at-large. N. J. S. A. 40:69A-52 provides under Plan B for a council of five members, unless pursuant to the authority granted under sections 40: 69A-13 and 19 the municipality chooses to be governed by a council of seven or nine members. The voters approved a seven-member council and they were to be elected at large.
N. J. S. A. 40-.69A-160, so far as pertinent herein, provides :
“At the regular municipal election in any municipality which has adopted articles 4 or 5, or 9 through 12, inclusive, of this act [Brick Township adopted article 4], the candidates receiving the greatest number and a majority of the votes oast shall be elected; provided, however, that if:
(a) five couneilmen at large are to be elected and 2 or more candidates for said office receive a majority of the votes cast the 5 candidates receiving the greatest number of votes shall be elected; * * (Emphasis added)
The proviso considers alternate situations where four, three or two couneilmen at large are to be elected. In the case of four to be elected, if 3 or more candidates receive a majority, the 4 candidates receiving the greatest number of votes shall be elected. In the case of three or two couneilmen at large to be elected, if 1 or more candidates, receive a majority, the 3 or the 2 candidates, respectively, receiving the greatest number of votes shall be elected.
*405Significantly, however, no such similar pattern for an avoidance of a run-oil election if less than all the candidates receive a majority has been expressed in the statute where seven or nine eouneilmen at large are to be elected. Defendants argue that we should imply that the legislative intent must have been to apply a similar formula where seven or nine eouneilmen at large are to be elected and that the failure to so provide was due to inadvertence. They would have us amend the statute by judicial decree or interpretation and rule that so long as 3 candidates for eouneilmen at large received a majority vote the seven candidates receiving the greatest number of votes should be declared elected.
It would be purely speculative on anyone’s part to say that such was the legislative intent and that inadvertence, rather than deliberate action, induced the omision from the proviso of a similar formula where seven or nine eouneilmen at large are to be elected. It this were fresh legislation but recently passed, a stronger case could be made of the argument that there was an inadvertent omission. But these sections were adopted several years ago and have remained unchanged. Contention is made that the original legislation provided for only five eouneilmen at large and the provision for govern or nine came by way of amendment. Prom this the argument is made that the Legislature simply forgot to make the necessary adjustment in the formula expressed in N. J. S. A. 40:69A-160.
There are two important factors which militate against this argument. First, the policy of the Faulkner Act has been in favor of requiring candidates to receive a majority vote in order to be elected and to subject candidates to a runoff election for a second choice by the voters when the majority has not been obtained. The rationale behind such an objective is seen in the instant situation where 26 candidates aspire for the seven councilman at large seats. To hold that so long as three attained a majority is sufficient to declare the seven with the greatest number of votes elected would enable four to represent the people on the council, even though the} *406may have received a relatively small Arote. If one would increase the number of candidates the potentiality becomes even more obvious.
Secondly, even if we were to assume that there was an inadvertent legislative omission in N. J. S. A. 40:69A-160 to make the formula therein equally applicable where seven or nine councilmen at large are to be elected, the remedy lies with the Legislature and not with the courts. We should not assume the function of the Legislature and rewrite the law to include therein something which those charged with the legislative responsibility might have inserted if the matter had been called to their attention.
Defendants make the further argument that the law is unconstitutional if a run-off election may be avoided under the terms of N. J. S. A. 40:69A-160 where five or a lesser number of councilmen at large are to be elected, but not similarly avoided where seven or nine councilmen at large are to be elected. The difficulty with that argument is that the proviso for avoidance of the run-off runs counter to the fundamental notion of election by majority vote or a run-off election where candidates fail to obtain a majority vote. Thus, the invalidity, if any, would be in the proviso containing the exceptions to a run-off, rather than in the general requirement first expressed in the statute that “the candidates receiving the greatest number and a majority of the votes east shall be elected * *
RTo other issues are properly before us, our consideration having been limited to the judgment under review.
The judgment is affirmed.