Hunterdon County Democrat, Inc. v. Recorder Pub. Co. of Bernardsville

• Citation: 285 A.2d 258,117 N.J.Super. 552
• Parties: HUNTERDON COUNTY DEMOCRAT, INC., a New Jersey Corporation, Plaintiff, v. The RECORDER PUBLISHING COMPANY OF BERNARDSVILLE, a New Jersey Corporation; and Readington Township, a Municipality of the State of New Jersey, Defendants.
• Decision Date: 10 December 1971
• Court: Superior Court of New Jersey

Page 552

117 N.J.Super. 552

285 A.2d 258

HUNTERDON COUNTY DEMOCRAT, INC., a New Jersey Corporation, Plaintiff, v. The RECORDER PUBLISHING COMPANY OF BERNARDSVILLE, a New Jersey Corporation; and Readington Township, a Municipality of the State of New Jersey Defendants.

Superior Court of New Jersey Chancery Division.

Decided Dec. 10, 1971.

Russell W. Annich, Jr., Princeton, for plaintiff (Mason, Griffin & Moore, Princeton, attorneys).

Henry M. Hoyt, Morristown, for defendant The Recorder Publishing Company of Bernardsville (Hoyt, Jeffers & Weiland, Morristown, attorneys).

William M. D'Annunzio, Newark, for defendant Readington Township (Gebhardt & Kiefer, Clinton, attorneys).

SEIDMAN, J.C.C. (temporarily assigned).

The principal issue in this declaratory judgment action is whether defendant newspaper qualifies under N.J.S.A. 35:1--2.2 for the publication of official advertising.

Plaintiff Hunterdon County Democrat, Inc. owns and publishes a newspaper by that name which circulates generally throughout Hunterdon County, the principal office and place of publication of which is stated to be in the Borough of Flemington. Defendant Recorder Rublishing Company of Bernardsville (Recorder) owns and publishes among other weekly newspapers, The Hunterdon Review and The High Bridge Gazette (Review), which also has general circulation in that county, particularly in its northwest section, including Readington Township, the Town of Clinton and the Borough of Flemington.

Plaintiff contends that the Review moved its principal publication office from Whitehouse Station in Readington Township to the Town of Clinton in 1969, as a result of new ownership, and that in doing so the Review is no longer qualified to publish official advertising by virtue of the fact that it has not been published continuously in the township for the two-year period required by N.J.S.A. 35:1--2.2. The Review disputes this and contends it is qualified to publish official advertising.

Although the Township of Readington was joined as a party defendant because of a possible issue of the validity of its official advertising in the Review, the parties agreed at the time of trial not to have that issue adjudicated.

Having considered the testimony of the witnesses produced on each side, the exhibits and the depositions received in evidence by stipulation, the court is now required to announce its findings of fact and state its conclusions of law thereon. R. 1:7--4.

I

The court finds that until June 1969 the Review was owned by Review Publishing Company and published by Raymond von Culin. All functions of the newspaper were performed at an office located on Main Street, Whitehouse Station, although there was a small branch in High Bridge. In 1968 von Culin obtained a variance for a building owned by him in Clinton permitting him to open an office and install printing presses in that location. On May 14, 1969 he announced the consolidation of the Hunterdon Review with the High Bridge Gazette and the proposed 'relocation of the Review Publishing Company's plant and editorial and advertising offices in Clinton.' About a month later the name, circulation files and good will of the Review were purchased by Recorder.

For a short time thereafter the Review continued to operate at Whitehouse Station, but the printing of the paper was transferred to Recorder's plant in Bernardsville. On July 9, 1969 the Review opened an office in Clinton in space rented from von Culin and moved editorial personnel and a bookkeeper to that location, retaining at the Whitehouse Station office a full-time employee whose duties included some editorial work, preparation of advertising layouts, handling of classified advertisements and attending to circulation. In November 1969 he was replaced by an employee who functioned as circulation manager and classified advertising salesman, in addition to doing some news reporting. The editor of the newspaper, based in Clinton, spent part of each day in Whitehouse Station. Early in January 1970 a second employee was assigned to the Whitehouse Station office.

The newspaper has been issued every Wednesday during all periods in question, and has been prepared for distribution at the Bernardsville office (now at Stirling), where copies are bagged or bundled and loaded onto a delivery truck sent there from Whitehouse Station the preceding night. The truck proceeds by a prescribed route to various post offices, news-stand locations and other nonmail delivery points in the Hunterdon County circulation area, leaving bage or bundles of newspapers for distribution.

The Review has been entered as second-class mail matter under the postal laws and regulations at the Whitehouse Station Post Office. The depositing of bags at other post offices is by arrangement with the postmaster at Whitehouse Station.

From these basic facts it is evident that although a substantial part of the editorial and advertising operations was transferred from Whitehouse Station to Clinton after the change in ownership in 1969, the Whitehouse Station office was retained and staffed for the transaction of business.

II

The qualifications of a newspaper for publishing official advertising are contained in N.J.S.A. 35:1--2.1 (state publications) and N.J.S.A. 35:1--2.2 (publications by counties, municipalities, individuals and corporations). The pertinent provisions of each are identical:

* * * 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 if not less than thirty-five per centum (35%), Shall have been published continuously in the municipality where its publication office is situate for not less than two years and shall have been entered for two years as second-closs mail matter under the postal laws and regulations of the United States. In case a newspaper cannot meet these qualifications, itself, but has acquired another newspaper which meets these qualifications, the acquiring newspaper shall be deemed to meet these qualifications if it is published in the same municipality and entered in the same post office as was the acquired newspaper. (Emphasis supplied)

The only statutory qualification is dispute in this case is the one pertaining to continuous publication 'in the municipality where its publication office is situate for not less than two years.' Plaintiff argues that the place of publication of the Review was transferred to Clinton in July 1969 and that it thereafter ceased publication in Whitehouse Station. Defendant newspaper claims that it has been published continuously in the original location for the requisite period, despite the moving of some of the editorial and advertising operations to Clinton.

To place the issue in proper perspective, one should note that the problem before the court is not whether the Review is eligible for designation by Readington Township as an official newspaper for the publication of all advertisements and notices required by law to be published by the municipality. See N.J.S.A. 40:53--1. In such case the statutory requirement is that the advertisements be 'published in at least one newspaper published and circulating in the municipality, and if there be no such newspaper, then in at least one newspaper published in the county in which the municipality is located and circulating in the municipality.' N.J.S.A. 40:53--2. There is, of course, a potential overlapping of issues, but not until it is first determined that the newspaper in question possesses the statutory qualifications for publishing official advertising.

A newspaper not qualified to publish official advertising cannot be designated by a municipality as its official newspaper. But one that is qualified may or may not be eligible for such designation, depending on whether it is published and circulated in the municipality, or if there be none so eligible, whether it is published in the county and circulated in the municipality.

The issue here is whether the Review has the requisite qualifications for official advertising, of which the pertinent one is that the newspaper shall have been Published continuously in the municipality where its Publication office is situate for not less than two years. The resolution of that issue requires interpretation of the words 'publish,' 'place of publication' and 'publication office.'

As originally enacted, the statutory requirement was that the newspaper 'shall have been published continuously for not less than one year and shall have been entered as second class mail matter under the postal laws and regulations of the United States.' L.1935, c. 177, § 1, and L.1936, c. 208, § 1. The period of continuous publication was increased to two years by L.1938, c. 328, and subsequently a two-year period was prescribed for the entry as second-class mail matter. L.1941, c. 147. The requirement of continuous publication In the same municipality where its publication office is situate appeared for the first time in 1941. L.1941, c. 409.

Dictionary definitions of 'publish' and 'publication' are not too helpful. The Random House Dictionary of the English Language (1966) defines 'publish' as 1. to issue, or cause to be issued, in copies made by printing or other processes, for sale or distribution to the public * * * 2. to issue publicly the work of * * * 6. to issue printed editions, as newspapers, books, etc. * * *

'Publication' is defined therein as 'the act of publishing.'

Other definitions of 'publish' are: 'to bring before the public, as for sale; esp.: a. To print and issue from the press, as a book, newspaper, etc.,' Webster's Collegiate Dictionary (5th ed. 1939); '* * * prepare and issue copies of (book, engraving, publication) for sale to the public,' American Oxford Dictionary (Am. ed. 1927). See also 35A Words and Phrases 150.

These...