City Affairs Committed Of Jersey City v. Bd. Of Comm'rs Of Jersey City

• Decision Date: 28 March 1945
• Docket Number: No. 238.,238.
• Parties: CITY AFFAIRS COMMITTED OF JERSEY CITY v. BOARD OF COMMISSIONERS OF JERSEY CITY et al.
• Court: New Jersey Supreme Court

132 N.J.L. 552

41 A.2d 798

CITY AFFAIRS COMMITTED OF JERSEY CITY

v.BOARD OF COMMISSIONERS OF JERSEY CITY et al.

No. 238.

Supreme Court of New Jersey.

March 28, 1945.

Certiorari proceeding by the City Affairs Committee of Jersey City, a corporation, against the Board of Commissioners of the City of Jersey City, and the City of Jersey City, to review a resolution of the City of Jersey City.

Writ dismissed.

CASE, J., dissenting.

January term, 1945, before CASE, BODINE, and PORTER, JJ.

Leo Rosenblum, of Jersey City, for prosecutor.

Charles A. Rooney, of Jersey City (Charles Hershenstein, of Jersey City, of counsel), for defendants.

PORTER, Justice.

At a meeting of the defendant Board of Commissioners of the City of Jersey City held on October 3, 1944, a resolution was adopted setting forth reasons why, in the Board's opinion, the proposed new state constitution would be detrimental to the best interests of the City. It provided for public advertisements in which the Board's views were to be publicized for the purpose of defeating the ratification of the constitution at the November 7th election. The legality of this resolution is before us on certiorari. Its text is as follows:

‘Whereas, as a result of the decision of the New Jersey Court of Errors and Appeals affirming the decision of the Court of Chancery of New Jersey, declaring unconstitutional the railroad settlement bills which so vitally affect the municipality of Jersey City, in which litigation the city's interest amounted to approximately $20,000,000, and there still remain many millions of dollars unpaid to the City of Jersey City; and

‘Whereas, there is located in the City of Jersey City a vast amount of railroad property, including valuable waterfront property, and the payment of the just and fair share of taxation on that property seriously affects the finances of the city, and the general well-being and welfare of the people of Jersey City; and

‘Whereas, the railroads have been urging upon the courts for years that their property should be assessed in accordance with standards of value and not in accordance with ‘true value’ as assessed by the taxing authorities, but have been unsuccessful in their efforts by reason of the adverse decisions rendered by our courts; and

‘Whereas, a proposed revised Constitution is to be voted on by the people of this state at the general election to be held in November, 1944, which said proposed Constitution modifies the existing Constitution so as to enable the railroads to accomplish enormous tax discriminations and preferences which they have been striving to obtain for years, without success, by reason of the present constitutional provision which provides that all property, including railroad property, must be assessed at true value and in no other way; and

‘Whereas, it is imperative that the people of the entire state, upon whom depends the adoption or rejection of this Constitution, should be appraised of the seriousness of the situation which confronts the people and which so vitally affects the interest and welfare of Jersey City; and

‘Whereas, the best method of making known to the people of this state the importance of this matter is through paid, wide publicity throughout the state.

‘Now, Therefore, Be It Resolved, that the city, through its Mayor, is hereby authorized to publicize and advertise all of the facts relating to this matter and the advantages resulting to Jersey City, from a defeat of the proposed revised Constitution and the importance of the matter to the welfare of its people, and to take all and every means available to make known to the people of New Jersey the dangers lurking in the proposed revised Constitution, and so prevent the loss of millions of dollars in railroad taxes to the City of Jersey City; and

‘Be It Further Resolved, that the money to be expended for this publicity and advertising be charged against Account No. 225, wherein appropriation has been made for railroad tax litigation.’

This resolution was adopted after the Board had received an opinion by counsel of his views as to the effect the new constitution would have on the affairs of the City. It was his opinion that the proposed constitution, if adopted, would result in at least two specific changes in the basic law. (1) It would permit the Legislature to select any separately classified type of property and tax it ad valorem at less than its true value. (2) It would permit the Legislature to select such class of property and exempt it outright even though it were devoted to private commercial uses. Counsel further advised the Board that the effect of the adoption of the proposed constitution would be to destroy the legal basis for attack then pending in this court against legislation fixing the railroad tax rate by the railroad tax law of 1941, Chap. 291, as amended in 1942, Chap. 169, N.J.S.A. 54:29A-1 et seq.

A large part of the revenue of the City is derived from taxes on railroad property, and it appears that the Board of Commissioners were fearful that if the proposed constitution were adopted, it would very seriously decrease the amount of taxes which the City would receive and that the adoption of the constitution would therefore be inimical to the best interest of the City and against the public good. The publication of newspaper advertisements setting forth its views and arguments against the adoption of the constitution followed. Expenditures of about $30,000 for that purpose were incurred.

Two meritorious questions are presented; first, whether it was lawful for the Board to expend public funds in presenting its views to the public by newspaper advertisements in advocating the defeat of the proposal by the voters; and second, if so, whether funds had been adequately appropriated in the budget for the payment of the expenses incurred.

We think municipalities may, within their discretion and in good faith, present their views for or against proposed legislation or referendum to the people of questions which in their judgment would adversely affect the interests of their residents. To accomplish this purpose we think they may incur expenditures by the publication of pamphlets, circulars, newspaper advertisements or radio addresses and that to do so is a proper governmental function. This court so held recently in the case of In re Carrick, 127 N.J.L. 316, 22 A.2d 561, which in principle we cannot distinguish from the instant case, and which ruling is therefore binding on this court. If the language of the advertisements contains libelous statements, as claimed by prosecutor, the law provides a remedy, but it is not by certiorari. It is not the court's function to control the form of public expression. In re Carrick, supra.

It appears that the City had included in its budget an appropriation against which these expenditures were charged, designated as Account No. 225 which was made for ‘railroad tax litigation.’ It further appears that for a period of several years the City has been engaged in litigation in this state concerning railroad taxes and that heretofore in connection with that litigation it has incurred expenditures which have been paid out of funds similarly appropriated. It is argued that no proper appropriation has been made for the payment of these expenses and that same cannot be paid out of this appropriation because it is not railroad tax litigation. While it is true that these advertisements are not directed specifically to the litigation, nevertheless we think they are sufficiently germane to the general purpose of the appropriation to properly include it.

The writ will be dismissed, with costs.

BODINE, J., concurs.

CASE, J., dissents.

CASE, Justice (dissenting).

The resolution under review, adopted by the Board of Commissioners of Jersey City on October 3, 1944, authorized the questioned advertisements and directed that the cost ‘be charged against Account No. 225, wherein appropriation has made for railroad tax litigation.’

Two sets of full page newspaper advertisements were widely publicized throughout the state, one in October, 1944, and the other in November, 1944, at a total expense of over $30,000. The October insertions were before the allowance of the writ; the November insertions and the payment of the entire cost, thereafter. $2,302.08 of the cost had not been paid when the return to the writ was filed. The matter of the advertisements was submitted to and approved by the commissioners and should be considered as a part of the resolution.

The spirit and content of the advertisements are reflected in the following excerpts:

‘Mayor Hague exposes * * * another gigantic steal involving hundreds of millions of dollars of railroad tax moneys in the new proposed constitution to be voted upon Election Day. You will recall that I exposed the handing over of $66,000,000 of the people's money to the railroads by the Republican Legislature. The courts sustained my position. * * * The same powerful and corrupt influences responsible for this steal are back again, trying to defraud the people, this time by a new constitution in which they destroy the present ‘true value’ provision under which railroad property is taxed and substitute a provision that railroad property shall be taxed according to ‘standard of value’ fixed by the Legislature. This will enable the railroads to obtain hundreds of millions of dollars in tax preferences and exemptions, should the new proposed constitution be adopted. * * * Article III, Section 6, Paragraph 8(3) * * * gives the Legislature the specific power to constitutionally tax all railroad property as it see fit and goes so far as to authorize the Legislature to exempt railroad property entirely from taxation. Remember, it was the same Legislature which is now proposing this constitution that made the illegal gift of $66,000,000 to the railroads. Can you imagine what this Legislature will do if given the ‘green light’ to reduce or exempt...