Publix Asbury Corp. v. City of Asbury Park

• Decision Date: 21 August 1951
• Docket Number: No. C--2212,C--2212
• Citation: 18 N.J.Super. 286,86 A.2d 798
• Parties: PUBLIX ASBURY CORP., Inc. v. CITY OF ASBURY PARK et al.
• Court: New Jersey Superior Court

Page 286

18 N.J.Super. 286

86 A.2d 798

PUBLIX ASBURY CORP., Inc. v. CITY OF ASBURY PARK et al.

No. C--2212.

Superior Court of New Jersey

Chancery Division.

Aug. 21, 1951.

Harry Green, Newark, for plaintiff.

Abraham Frankel, City Atty., Asbury Park, for defendant, City of Asbury Park.

LEONARD, J.C.C.

The plaintiff and defendants have stipulated that the complaint and supplemental complaint and the second count of the counterclaim of the defendant, City of Asbury Park, N.J., shall be dismissed without prejudice and without costs, and that this action shall proceed only as to the first count of said defendant's counterclaim.

By lease dated August 21, 1942, the defendant, City of Asbury Park, N.J., leased the Paramount Theatre, on the boardwalk, in said city, to one Walter Reade, an assignee of the plaintiff, for a term of 20 years. Said lease provided for the payment of an annual rent based upon certain percentages of all gross receipts, with a minimum guarantee of $12,500 per year 'for the duration of the war,' and thereafter $20,000 per year for the balance of the leasehold.

The pertinent portion of said lease reads as follows: 'For the term of twenty years to commence on the twenty-first day of August, 1942, at an annual rental of fifteen percent (15%) of all gross receipts up to $200,000.00 and seventeen and one-half percent (17 1/2%) of all gross receipts if same amounts to $200,000.00 and over with a minimum guarantee of $12,500.00 per year For the duration of the war (italics mine) and thereafter $20,000.00 for the balance of the leasehold, payable monthly.'

It has been stipulated that the plaintiff, based upon the percentages contained in said lease, paid as rent from August, 1942, to the year of 1949, a sum in excess of $20,000 annually but for the year of 1950 paid the sum of only $15,405.87.

The defendant, City of Asbury Park, N.J., in this counterclaim seeks to recover the difference between said $20,000 and the sum so paid for the year 1950, to wit, the sum of $4,594.13.

The plaintiff denies that it is so indebted, and contends that the words 'for the duration of the war,' should be construed to mean until the war has been formally terminated by the making of a treaty or treaties of peace between the United States and its enemies, Germany, Italy, Japan, and their allies.

To the contrary, the defendant denies the construction contended by the plaintiff and bases its claim upon the contention that the words 'for the duration of the war,' as used in said lease, means the 'shooting war,' and that said 'shooting war' terminated on or about September 2, 1945, when the actual fighting and hostilities ceased between the United States and its enemies as above referred to.

In support of its contention the plaintiff first relies upon R.S. 1:1--2a, N.J.S.A., which became effective May 2, 1942, some three months before the execution of said lease.

Said statute provides as follows: 'Unless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction, the following words, phrase and clauses, namely: 'present war', 'present war emergency', 'the existing state of war', 'present defense emergency', when used or named within this State in any manner whatsoever with relation to a period of time shall mean so long as the United States of America continues in the present wars with the governments of Japan, Germany and Italy, or any of them, and until the making of a treaty or treaties of peace concluding all of said wars.'

Plaintiff argues that said statute is applicable and controls the construction of the words in said lease.

The defendant argues that said statute has no application to this lease; that said statute was passed for the purpose of being an aid in the interpretation of statutes and legislation of this State. In support of this the defendant argues that said statute is annotated under section 1:1--2 in the Revised Statutes, which section of said Revised Statutes deals with definitions of words and phrases when used in any statute and in the Revised Statutes. Defendant further argues that the statement annexed to the original legislative bill (Assembly Bill No. 143, year of 1942), which upon its passage became the statute involved herein, provided: 'The passage of this Bill will save time and difficulty in drafting legislation.'

Thus, the primary question to be determined is: Does said statute, to wit, R.S. 1:1--2a, N.J.S.A., control in the instant case?

The fundamental rule of judicial construction of statutes is to ascertain and give effect to the intention of the Legislature as expressed in the statute. Cooper v. State Board of Veterinary Medical Examiners, 114 N.J.L. 10, 15, 175 A. 207 (Sup.Ct.1934) affirmed, 115 N.J.L. 115, 178 A. 748 (E. & A.1935); Blackman v. Iles, 4 N.J. 82, 89, 71 A.2d 633 (1950).

A reading of the instant statute discloses that it states in part: 'The following words, phrases and clauses, namely: 'present war', 'present war emergency', 'the existing state of war', 'present defense emergency', when used or named * * * shall mean * * *.' (Italics mine).

The lease in question uses the words or phrase 'for the duration of the war.'

Thus it will be noted that the statute does not include the specific words or phrase contained in said lease. To construe the statute to include the words or phrase in the lease would necessitate a construction that added to such statute either the specific words or phrase used in the lease, or in the alternative the following words or phrase, to wit: 'or any other similar words, phrases and clauses.'

In determining whether this should be done, the following basic rules of statutory construction as heretofore determined by our courts, are pertinent:

'It is elementary that the intent of the Legislature is to be gleaned from the language of the statute and that Courts cannot arbitrarily expand the scope of a statute beyond the plainly expressed legislative intent.' Eckert v. New Jersey State Highway Dept., 1 N.J. 474, 64 A.2d 221, 224 (1949); Leeds v. City of Atlantic City, 181 A. 892, 13 N.J.Misc. 868 (Circ.Ct.1935); Belfer v. Borella, 6 N.J.Super. 557, 70 A.2d 99 (Law Div.1949) affirmed 9 N.J.Super. 287, 76 A.2d 25 (App.Div.1950).

'The Legislature is deemed to mean what was plainly expressed. An unexpressed legislative intention is ineffective and unenforceable.' Burnson v. Evans, 137 N.J.L. 511, 60 A.2d 891, 893 (Sup.Ct.1948).

'The language under consideration does not require construction since it is not of doubtful meaning. A strained construction cannot be adopted in order to give effect to what a court may think is the unexpressed intention of the legislature.' In re Hudson Co. Elections, 125 N.J.L. 246, 254, 15 A.2d 813 (Sup.Ct.1940); City of Hoboken v. State Board of Tax Appeals, 127 N.J.L. 179, 21 A.2d 348 (Sup.Ct.1941); Board of Health of City of Plainfield v. Charles Simpkin & Sons, Inc., 10 N.J.Super. 301, 76 A.2d 302 (Cty.Ct.1950).

'Casus omissus can in no case be supplied by a court of law, for that would constitute the exercise of the law-making power. Statutes should be interpreted according to the most natural and obvious import of the language, without resorting to subtle or forced construction for the purpose either of limiting or Extending their operation. Courts cannot correct supposed errors or omissions of the legislature.' (Italics mine). City Affairs, etc., Jersey City v. Department of Taxation, 134 N.J.L. 198, 203, 46 A.2d 558, 561 (Sup.Ct.1946); Singer Sewing & Co. v. N.J. Unemployment Compensation, etc., 128 N.J.L. 611, 27 A.2d 889 (Sup.Ct.1942).

'The courts will never lightly incorporate into a legislative enactment a meaning not expressed therein; it would be justified in doing so by the compulsion of a necessary implication.' Taylor v. Rector, etc., Christ Church, 118 N.J.Eq. 288, 179 A. 259 (E. & A.1935).

'To interpolate the desired words into the section would amount to the introduction of an entirely supplementary thought. The courts of our State are not clothed with the power to supervise legislation and the power to construe does not embrace the power to legislate. Courts have, of course, supplied apparent omissions in statutes. In such instances, the intent and the evident will were apparent and were utterly defeated by the omission. The general rule is that where words have been omitted from a statute by inadvertence, or through clerical error, and the intent of the legislature is clearly ascertainable from the context, the court will insert the words necessary to carry out that manifest intent. * * * In the construction of statutes, words should never be supplied except to effectuate a meaning clearly shown by the other parts of the statute and to undertake to augment the substance of a statute as here desired would be an abortive act of legislation rather than a proper exercise of the power of judicial construction.' Saslow v. Previti, 3 A.2d 811, 813, 17 N.J.Misc. 29 (Cir.Ct.1939); Township of Orvil v. Borough of Woodcliff, 61 N.J.L. 107, 38 A. 685, (Sup.Ct.1897); 3 A.L.R. 411.

In accordance with the above rules I do hereby determine that the specific statute involved herein cannot be construed to include the words contained in the lease in issue. The language of said statute is clear, unambiguous, plainly expressed, and is not of doubtful meaning. It clearly limits itself to the following words, phrases and clauses, namely: 'present war,' 'present war emergency', 'the existing state of war,' 'present defense emergency'. It does not contain the words or phrase used in the lease, to wit, 'for the duration of the war,' nor does it contain any reference to 'similar words, phrases and clauses.' I cannot adopt a strained construction to give effect to an alleged unexpressed intention of the Legislature. The context of said statute does not reveal any justification or the compulsion of any necessary implication that it should be...