Lewis v. Mayor

• Decision Date: 11 March 1907
• Citation: 65 A. 1039,74 N.J.L. 308
• Parties: LEWIS et al. v. MAYOR, ETC., OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

65 A. 1039

74 N.J.L. 308

LEWIS et al.

v. MAYOR, ETC., OF CITY OF NEWARK et al.

Supreme Court of New Jersey.

March 11, 1907.

(Syllabus by the Court.)

Certiorari by the state, on the relation of Louis Lewis and others, against the mayor and common council of the city of Newark and others, to review an ordinance. Ordinance vacated and set aside, and writ dismissed as to board of chosen freeholders.

Argued February term, 1907, before FORT, PITNEY, and REED, JJ.

Frederick T. Johnson, for prosecutors. Chandler W. Riker and Joseph L. Munn. for defendants.

FORT, J. The writ in this case brings up two matters of municipal action of the common council of the city of Newark for review: First, the passage of an ordinance to divide the city into wards, and to increase the number of wards to 16; second, a motion, so called, passed December 3, 1906, as follows: "Moved, that Reuben Odel be elected freeholder to represent the Sixteenth Ward of the city of Newark to fill vacancy."

The ordinance was adopted November 30, 1900, and approved by the mayor upon the same day. The return shows that the ordinance was introduced on November 30th and, under suspension of the rules, given three readings and passed. The power of the common council to pass an ordinance for the division of the city into wards, and increasing the number of wards to 16, is not questioned. The authority is expressly conferred by statute. P. L. 1895, p. 311. The authority to adopt the motion of December 3, 1906, to elect Mr. Odel to the office of freeholder, depended upon the existence of at least two basal facts, namely: (1) That the ordinance passed November 30, 1906, was in force on December 3, 1906; and (2) that it had created a vacancy. If, for any reason, it had not become operative on December 3d, of course, there was no vacancy to fill, because there was no office existent to be vacant. The office of freeholder from the Sixteenth Ward was created by the ordinance of November 30, 1906, and had no legal existence until and after said ordinance became operative.

It is contended that the ordinance of November 30, 1906, was not in force on December 3, 1900, because it had not been published, as required by law, to be operative on that date. By the charter of the city of Newark, passed in 1836 (P. L. 1836, p. 191, § 14), it is provided that before any ordinance shall take effect it shall be published for 20 days after its approval in two daily newspapers printed and published in the city. In 1871 (P. L. 1871, p. 600) the charter was amended to require publication for 10 days only. In 1881 (P. L. 1881, p. 295) an act was passed entitled "An act concerning the publication of ordinances, financial statements, and other public notices." By the first section of this act it is provided that: "In all cities of this state, the ordinances passed by the city councils thereof shall be published in at least one newspaper printed and published in the city affected by said ordinance, for at least two insertions, before said ordinance shall become operative and binding." It needs no argument to show that, under this section, if it applies, there must be two insertions in the same newspaper.

We are unable to escape the conclusion that this law is applicable to Newark, and, if it is, the ordinance creating the Sixteenth Ward in Newark was not in force at the time that the motion was adopted appointing Odel a freeholder to fill the vacancy in that office which would exist when the Sixteenth Ward was established, conceding that the creation of a ward would of itself create such a vacancy. The testimony of the city clerk, Mr. Connolly, at pages 15 and 17 of book 1, makes it clear that this ordinance was not published by two insertions in any newspaper except the Newark Morning Star. It was published in the Newark Morning Star on Saturday and Monday mornings, December 1 and 3. 1906, and if this newspaper were one in which such publications could be legally made under the statute it might be sufficient; but the third section of the act of 1881 declares that the newspapers publishing such ordinances shall have been published for a period of two years before any such publication can be legally made therein. By an act passed in 1895, which relates by its title and in the body of the act to the publication of ordinances in cities of the first class only (P. L. 1895, p. 773), it is enacted that it shall not be necessary in any city of the first class to publish any ordinance now required by law to be published in any newspapers, "to hereafter publish such ordinances * * * for a longer space than five days, nor for more than five insertions in the daily official newspapers of such city." This act, however, we do not think requires any publication to be made in excess of two insertions, in cases of ordinances, as provided by the act of 1881, but is only a limitation upon existing statutes which may require even more than five days' publication. The act of 1895 would, undoubtedly, if the act of 1881 did not exist, reduce the 10 days' publication required by the act of 1871 to five days' or five insertions. But what the real effect of the act of 1895 may be is immaterial in this case, if the act of 1881 as a matter of fact has not been complied with. By an act entitled "An act determining what newspapers shall be qualified to publish legal notices and proceedings" passed June 13, 1895 (P. L. 1895, p. 803), it is provided that all newspapers printed in the English language, and regularly printed and published in this state at least once a week, and which shall have been so printed and published for at least one year continuously, shall be qualified to publish all legal notices and advertisements of whatever nature, required to be published by any local government or by any officer or board or commission. This act undoubtedly reduces the two years of continuous publication in the act of 1881 to one year; but we are unable to find any other modifications in the statutes, and our conclusion is that to make a legal publication of ordinances in cities of the first class, the newspaper must be published in the English language, continuously, for a period of one year prior to the publication, in order that the two insertions published in it shall give effect to the ordinance. The Morning Star had only been published, at the time of the publication of the ordinance in question, for about two months. The suggestion is that it is published by the Newark Advertiser as a...