City of Plainfield v. Courier-News

• Decision Date: 15 November 1976
• Docket Number: COURIER-NEWS
• Citation: 369 A.2d 513,72 N.J. 171
• Parties: The CITY OF PLAINFIELD, a Municipal Corporation of the State of New Jersey, Plaintiff-Respondent, v. The, a New Jersey Corporation, Defendant-Respondent, and The Daily Journal, a New Jersey Corporation, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 171

72 N.J. 171

369 A.2d 513

The CITY OF PLAINFIELD, a Municipal Corporation of the State of New Jersey, Plaintiff-Respondent, v.The COURIER-NEWS, a New Jersey Corporation, Defendant-Respondent and The Daily Journal, a New Jersey Corporation, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 26, 1976.

Decided Nov. 15, 1976.

Matthews D. F. Wade, Elizabeth, for defendant-appellant (Richard R. O'Connor, Elizabeth, attorney; Matthews D. F. Wade on the brief).

Lawrence Schechterman, East Brunswick, for respondent Courier-News.

Edward W. Beglin, Jr., Plainfield, submitted a statement in lieu of brief on behalf of respondentCity of Plainfield.

The opinion of the court was delivered by

MOUNTAIN, J.

At issue in this case is the continued eligibility of the Courier-News, a daily newspaper, to serve as the official newspaper for the City of Plainfield after moving its headquarters from Plainfield, which is in Union County, to Bridgewater Township, nine miles away in Somerset County.An official newspaper is one designated by the governing body of a municipality, pursuant to N.J.S.A. 40:53--1, for the publication of advertisements and notices required by law to be published by the municipality.Statutory publication requirements differ to some extent, as will be pointed out below, but typically they specify that a notice must be published 'in a newspaper published and circulating in the municipality, if there be one, and if not, in a newspaper published in the county and circulating in the municipality'(N.J.S.A. 40A:2--19, publication of local bond ordinances).

After the removal of the Courier-News, the City of Plainfield brought a declaratory judgment action seeking to determine whether it could continue to publish its legal advertisements in the Courier-News, and if not, whether the Daily Journal, a newspaper published in Elizabeth, was qualified and eligible.The trial court determined that the Courier-News was still published in Plainfield and thus remained eligible for designation as an official newspaper.This decision was affirmed by the Appellate Division; a dissent was filed by Judge Halpern, however, chiefly on the ground that in drafting the statutes dealing with publication requirements, the Legislature had not contemplated that a newspaper might be considered to be published in more than one place.The case is thus before us as of right.R 2:2--1(a)(2).We have reviewed the arguments of the parties in the light of both the statutory language and the probable intent of the Legislature.We find ourselves unable to agree with the conclusions reached by the trial court and the Appellate Division majority and hence reverse, in large part for the reasons expressed by Judge Halpern in his dissenting opinion.

The Courier-News was incorporated in 1894 as the Plainfield Courier-News, a corporate name which it still retains.Until its move to Bridgewater Township, which occurred in March 1972, its news gathering, editing, printing and circulation operations were centered in Plainfield and the newspaper was entered as second-class mail at the Plainfield post office.¹Since it has been the only daily newspaper published in Plainfield and has long enjoyed a wide circulation there, it has been for many years designated as Plainfield's official newspaper.

The paper's move to Bridgewater Township took place after the old printing presses at the Plainfield office 'just fell apart,' as its publisher testified.Larger and more modern facilities were constructed at which over 200 persons are presently employed.The executive officers are located there, and most of the editorial work and all the layout, printing, and circulation operations take place there.The paper is entered as second-class mail at the Somerville post office, which serves Bridgewater Township.The Plainfield office remains, but it is staffed by only seven or eight employees concerned with local advertising and news coverage.Preliminary typing and editorial work are done in the office, but both advertising and news copy are sent to Bridgewater Township for final handling.Similar local offices are maintained in several other communities, but they are much smaller, being staffed by only one or two employees.The total circulation of the paper is about 66,000 copies, of which 8,800, or almost one-seventh, are distributed in Plainfield.

The Courier-News argues that since it maintains a functioning 'publication office' in Plainfield and since the first newspapers printed each day are put into circulation in Plainfield, the paper continues to be published in that city within the intendment of the publication statutes.The Daily Journal, the other daily newspaper circulating in Plainfield, argues that the Courier-News is no longer published in Plainfield, but is published outside Union County and thus is not eligible to be Plainfield's official newspaper.

The Daily Journal is published in Elizabeth, about 15 miles away at the eastern end of Union County.Until the removal of the Courier-News, the Daily Journal's circulation of about 67,000 copies was largely confined to eastern Union County and only a few copies were sold in Plainfield.In 1971, however, the Daily Journal entered upon a campaign to become a county-wide newspaper.It established a small branch office in Plainfield, staffed by three reporters to cover local news, and succeeded in raising its 1972 Plainfield circulation figure to 1,144.²The Daily Journal does not allege that it is published in Plainfield, but asserts that it is 'published in the county and circulating in the municipality' within the intendment of the publication statutes, and is thus eligible to publish Plainfield's legal advertising in the event that no newspaper is published in Plainfield.

I

As a threshold issue we consider whether by moving its headquarters the Courier-News has forfeited its status as a 'legal newspaper,' that is, one generally qualified to print the legal notices required of public bodies.While the issue is now moot, we discuss it for the purpose of elucidating the distinction between qualification as a legal newspaper, which is governed by the provisions of Title 35(Legal Advertisements), and eligibility to publish the legal notices of a particular municipality, which is governed for the most part by the requirements set forth in various sections of Titles 40 and 40A(Municipalities and Counties).

At the time of removal of the Courier-News, the qualifications of a legal newspaper were enumerated in N.J.S.A. 35:1--2.2, set forth in pertinent part below:

Whenever, by law, it is required that there be published by printing and publishing in a newspaper or newspapers ordinances, resolutions or notices or advertisements . . . by any county, city or other municipality or municipal corporation, . . . such newspaper or newspapers must . . . meet the following qualifications, namely: said newspaper or newspapers shall be entirely printed in the English language, shall be printed and published within the State of New Jersey, shall be a newspaper of general paid circulation possessing an average news content of not less than 35%, Shall have been published continuously in the municipality where its publication office is situate for not less than 2 years and shall have been entered for 2 years as second-class mail matter under the postal laws and regulations of the United States. . . .(Emphasis added)

The intent of the Legislature is self-evident: to ensure that any newspapers carrying legal advertisements will be ones that are read and understood by a cross-section of the community, and that have 'stability and continuous existence in the municipalities where their publication offices are maintained.'In re Bond Printing Co., Inc., 135 N.J.L. 478, 480, 52 A.2d 762, 763(E. & A.1947).It is not disputed that the Courier-News is qualified in all respects except as to the requirement emphasized in the citation.³The paper's position is that it has continuously maintained its publication office in Plainfield and has continued to be published there, so that it meets this requirement as well.For this proposition it relies heavily on Hunterdon County Democrat v. Recorder Publishing Co., 117 N.J.Super. 552, 285 A.2d 258(Ch.Div.1971).

The facts of Hunterdon County Democrat were similar in many respects to those of the present case.The Hunterdon Review, a weekly newspaper, had been printed and published in Whitehouse Station (Readington Township) for many years.In 1969 the newspaper was consolidated with another local weekly, the High Bridge Gazette, and the main printing, editorial and advertising offices were relocated in Clinton.The Whitehouse Station office remained open for limited editorial, advertising and circulation purposes, and the paper continued to be entered as second-class mail at the Whitehouse Station post office.

The Hunterdon County Democrat, a rival newspaper published in Flemington and circulating throughout Hunterdon County, sought a declaratory judgment that the Hunterdon Review, by virtue of its move, no longer qualified under N.J.S.A. 35:1--2.2 for the publication of official advertising.The Democrat relied on In re Bond Printing Co., Inc., 135 N.J.L. 478, 52 A.2d 762(E. & A.1974), in which a qualifying newspaper published in Red Bank had been purchased in 1946 by an Asbury Park firm; its entire publishing operation had been moved to Asbury Park and the name of the newspaper changed to the Asbury Park Sun.Rejecting the Sun's assertion that as successor to a qualified newspaper it automatically continued to be qualified to publish legal advertisements, the court found that the Sun had had its publication office in Asbury Park only since 1946 and had been published there only since that date, so that it failed to meet the two-year requirement of N.J.S.A. 35:1--2.2.

The court in Hunterdon County Democrat carefully distinguished the fact situation...