Glick v. Tr.s Of Free Pub. Library Of City Of Newark

• Decision Date: 30 June 1949
• Docket Number: No. A-305.,A-305.
• Citation: 67 A.2d 463
• Parties: GLICK et al. v. TRUSTEES OF FREE PUBLIC LIBRARY OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

67 A.2d 463

GLICK et al.

v.TRUSTEES OF FREE PUBLIC LIBRARY OF CITY OF NEWARK et al.

No. A-305.

Supreme Court of New Jersey.

Argued June 13, 1948.

Decided June 30, 1949.

Appeal from Superior Court, Appellate Division.

Certiorari proceeding by Arnold Glick and another, trading as Glick Book-Binding Company, against the Trustees of the Free Public Library of the City of Newark and Wm. H. Rademaekers & Son Company, to review on award of a book-binding contract on behalf of the city library. Judgment of the Appellate Division, 1 N.J.Super. 308, 64 A.2d 358, setting aside the resolution of the Board of Trustees, and the Board of Trustees appeal.

Affirmed.

Vincent J. Casale, Newark, argued the cause for appellant Trustees of Free Public Library of City of Newark (Thomas L. Parsonnet, Charles Handler and Meyer M. Semel, Newark, on the brief).

Meyer M. Semel, Newark, submitted a petition for certification to the Appellate Division of the Superior Court on behalf of defendant Wm. H. Rademaekers & Son Co.

Samuel A. Larner, Newark, argued the cause for respondents.

The opinion of the court was delivered by

HEHER, J.

The defendant Trustees of the Free Public Library of the City of Newark appeal from the judgment of the Appellate Division of the Superior Court setting aside, on certiorari, a resolution adopted by the Trustees on March 24, 1948, whereby a contract for the binding and rebinding of the Library's books during the year 1948 was awarded to defendant Wm. H. Rademaekers & Son Co., on a bid of $23,811.25. The respondents submitted a bid of $23,112.95. No reason was assigned for the rejection of the lower bid; want of responsibility is not alleged. The conclusion of the Appellate Division, 64 A.2d 358, 360, was that the Trustees constitute ‘a branch or agency of the municipality,’ and so are ‘within the meaning of the term ‘municipality’ as used in R.S. 40:50-1, N.J.S.A.' This is the crucial question on the merits.

The respondents move to dismiss the appeal for want of jurisdiction. The writ of certiorari was allowed July 22, 1948, prior to the effective date of the Judicial Article of the Constitution of 1947, N.J.S.A. The judgment of the Appellate Division was entered March 3, 1949. The notice of appeal was filed the ensuing March 30th. The insistence is that the judgment is not appealable of right under Article VI, section V, paragraph 1 of the Constitution, but is reviewable by this Court only on certification pursuant to paragraph 1(d) of the cited constitutional provision and Rule 1:2-1 of the Court. On May 20th, the bidder to whom the award was made, a party to the certiorari proceeding, interposed a petition for certification, ‘as within time.’ It is said that there is ‘a diversity of interest’ between the defendants which calls for ‘separate and independent representation,’ and that certification ‘is necessary in the event that the * * * appeal be dismissed for failure to seek certification.’

The appeal was well taken, and the motion to dismiss is accordingly denied. Giordano v. City Commission of Newark, 2 N.J. 585, 67 A.2d 454, decided this day by this Court. The petition for certification is denied. The petitioner made no appearance in the court below. Moreover, the judgment was appealable; and the presentation of the petition was not timely. Rule 1:5-5.

On the merits, the argument, in brief, is that the Trustees were constituted ‘a separate corporate entity’ by the Act under which it came into being, R.S. 40:54-1 et seq., N.J.S.A., whose existence was not terminated by the adoption of the Commission Government Act, R.S. 40:71-1 et seq., N.J.S.A., by the City of Newark, and therefore the corporate body is not of the class subject to ‘the general laws relating to municipalities,’ and R.S. 40:50-1 et seq., N.J.S.A., has no application.

In an earlier case, the old Supreme Court ruled that the Trustees form ‘a branch or a board of the municipal government, * * * to manage educational matters for the benefit of the whole community,’ and not an ‘independent entity,’ and, while given a corporate existence ‘for * * * convenience and for purposes of * * * administration,’ the corporate body is yet ‘a mere branch or agency for that special purpose.’ The Court of Errors and Appeals found it sufficient to rest affirmance of the particular judgment on the narrower ground that the employees of the Library are ‘in the paid service of the municipality,’ and therefore subject to the provisions of the Civil Service Act. Trustees of Free Public Library of Newark v. Civil Service Commission, 83 N.J.L. 196, 83 A. 980, 982 (Sup.Ct.1912), affirmed 86 N.J.L. 307, 90 A. 261 (E. & A. 1914).

There is no need to delineate the statutory scheme. It suffices to say that the function delegated to the library management is local and municipal in legislative concept; the instrumentality is an adjunct of the local government in the field of education and intellectual recreation, and under its control. It is the municipality that is empowered to ‘establish a free public library within its corporate limits.’ R.S. 40:54-1, N.J.S.A. There is provision for a referendum. R.S. 40:54-2 et seq.,...