Whirl-O-Ball, Inc. v. City of Asbury Park , 136 N.J.L. 316 ( 1947 )

On March 19th, 1946, a resolution was adopted by the mayor and council of the City of Asbury Park, whereby certain boardwalk premises known as stores Nos. 1310-16 Boardwalk were leased by the defendant city to the defendant Benjamin A. Cardilla, trading as Convention Hall Amusements, for a term of three years commencing January 1st, 1946, and ending December 31st, 1948, at an annual rental of $8,200. The prosecutor-respondent Whirl-O-Ball, Inc., in which the individual prosecutors are stockholders, occupied the premises under a lease from the city, which expired December 31st, 1945, and had been in continuous occupation for thirteen years. Prior to the meeting of the mayor and council on March 19th, 1946, six written bids for a new lease for the premises in question had been submitted and of these, the bid of Convention Hall Amusements (Benjamin A. Cardilla) was the highest. Among the six bids was one by Whirl-O-Ball, Inc., by George K. Apostolos (corporate and individual prosecutors herein); another by The Social Hour, Inc., by Laura Apostolos (one of the individual prosecutors herein), and still another by L. G. Company, by Laura Apostolos (one of the individual prosecutors herein). It is stipulated that the letting was not advertised in any newspaper prior to the receipt of proposals. The Supreme Court granted a writ of certiorari to review the resolution of March 19th, 1946, and entered judgment which set aside this resolution. From this judgment of the Supreme Court, the City of Asbury Park and Benjamin A. Cardilla appeal.

Appellants contend here, as they did below, that Asbury Park in passing this resolution had five different acts included in the Revised Statutes, under any one of which it was empowered to act: (1) R.S. 40:179-116 (compiled — source Pamph. L. 1900, ch. 99, § 4, as amended by Pamph. L. 1919, ch. 252), which does not require advertising; (2) R.S. 40:176-17 (compiled — sourcePamph. L. 1925, ch. 248), which does not require advertising; (3) R.S. 40:61-1.g (revised — source Home Rule Act, Pamph. L. 1917, ch. 152, art. XXXVI, § 13, as amended by Pamph. L. 1933, ch. 355), which does not require advertising; (4) R.S. 40:61-1.h (revised — source same as (3)), which requires advertising, and (5) R.S. 40:61-36 to 41, inclusive (revised — source Pamph.L. 1937, ch. 172), which requires advertising. They argue that these five acts provide alternative procedures and all are still in effect. Since Asbury Park did not advertise, appellants claim that its resolution was authorized under the three separate acts mentioned above which permit such action without advertising. The Supreme Court held that "R.S. 40:61-36; et seq., Pamph. L. 1937, ch. 172, is dispositive of the issue" and since it (R.S. 40:61-40) provides "Any such letting shall be advertised in some newspaper circulating in the municipality at least ten days prior to the receipt of bids" the admitted failure to advertise was fatal and set aside the resolution. Although the Supreme Court does not explicitly hold that R.S. 40:61-36 to 41, inclusive, repeals the other four statutes which otherwise might be effective, such holding is implicit in the result.

At the outset it should be noted that there is a difference betwen statutes "revised" in the Revised Statutes and those merely "compiled." Statutes "revised" were re-enacted as of December 20th, 1937, and received new force and validity as of that date, but statutes merely "compiled" were not re-enacted and, as provided in R.S. 1:1-21, "shall have operative force and effect only to the extent that they were operative and effective at the time of taking effect of the Revised Statutes. Such acts or parts of acts shall not be deemed repealed by the enactment of the Revised Statutes, except so far as they are inconsistent with the provisions of the Revised Statutes but, in so far as they may have been so repealed or have been superseded or impliedly repealed by legislation subsequent to their enactment, they shall remain so superseded or repealed and shall have no further or additional effect because of their inclusion in the Revised Statutes as aforesaid." The reason for compilation, instead of revision, of the laws concerning cities is stated in the Report of the Law Revision Commissioners in Volume IV of Revised Statutes, page 20, as follows:

"In a limited number of instances the Commissioners found that revision and consolidation was wholly impossible without making substantive changes of moment, notably the legislation with respect to cities, and they were obliged to include in this revision the legislation compiled rather than revised and consolidated. That legislation alone takes up approximately two hundred pages of the revision. It should be revised and consolidated but we do not believe that it can be except by a Commission upon which there is legislative representation."

The chaotic condition of the legislation concerning the powers of cities, which made revision thereof by the Revision Commission impossible, must be kept in mind when seeking the intention of the legislature in the language used in Pamph. L. 1937, ch. 172, and later used when that statute was revised in R.S. 40:61-36 to 41, inclusive.

If R.S. 40:179-116 (compiled — source Pamph. L. 1900, ch. 99, § 4, as amended by Pamph. L. 1919, ch. 252) was in effect at the time of the passage of the resolution in question, Asbury Park was authorized to pass such a resolution without prior advertising. We restrict our inquiry then to two questions. In considering these questions, certain canons of construction come into play. That the legislature has power to pass cumulative legislation, needs no citation of authority. The court's power to determine that a later act repeals, by implication, a former act, rests upon the theory of legislative intent. SoutherlandStatutory Construction (3d ed.), § 2006. The rule that a later act repeals, by implication, that which is inconsistent with it in an earlier one is, however, but the expression of an intention presumed to be entertained by the legislature in making the law. As such it is, of course, negatived and rendered inoperative by the expression of a contrary intention in the later statute.Endlich on the Interpretation of Statutes, § 193. It is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both, if possible. The intention of the legislature to repeal must be clear and manifest. It is not sufficient to establish that subsequent laws cover some or even all of the cases provided for by the prior act; for they may be merely affirmative or cumulative or auxiliary. United States v.Borden, 308 U.S. 188 (at p. 198). As the legislative intent defines the operation of the statute and divulges the purposes and limitations of the enactment, it may establish or deny a repeal by implication, and therefore in the process of construing a statute, the intent of the legislature is always of prime importance. Southerland Statutory Construction (3ded.), § 2012. Where the repealing effect of a statute is doubtful, the statute is to be strictly construed to effectuate its consistent operation with previous legislation. SoutherlandStatutory Construction (3d ed.), § 2014.

FIRST QUESTION. Was this 1900 act repealed or superseded by legislation subsequent to its enactment?

Prior to the enactment of Pamph. L. 1937, ch. 172, the 1900 act was undoubtedly in effect. This very question was determined in Reade v. Asbury Park, 101 N.J.L. 319; affirmed, 102Id. 221. The Reade case involved the leasing of boardwalk premises by the City of Asbury Park, and in that case the same objection was raised as is now raised in this case; namely, that leasing was unlawful because it was not advertised as required by law. The Reade case involved the construction of Pamph. L. 1900, ch. 99, as amended by Pamph. L. 1919, ch. 252, and the provisions of the Home Rule Act, Pamph. L. 1917, ch. 152,art. XXXVI, § 13. The 1900 act permitted the letting without a requirement of advertising, and the Home Rule Act permitted the letting but required advertising. In the Reade case the Supreme Court held that the advertising requirement included in the Home Rule Act did not supersede the provisions of the 1900 act as amended in 1919, and therefore the letting could be without advertising, since the 1900 act had no such requirement; and the Court of Errors and Appeals affirmed on the opinion below. It is to be noted that the legislature, after the decision of the Supreme Court in the Reade case, and while the case was on appeal to the Court of Errors and Appeals, enacted Pamph. L. 1925,ch. 248 (now R.S. 40:176-17), which applied to fourth class cities, and thus applied to Asbury Park and authorized such a letting without any requirement of advertising. Pamph. L. 1925, ch. 248, was passed over the Governor's veto, which was based upon the fact that the proposed law would dispense with public advertising in the letting of boardwalk concessions by fourth class cities. The 1925 act was passed by the legislature with the obvious intent to insure that Asbury Park and other fourth class cities could let such boardwalk properties without advertising from 1925 on, even though the Court of Errors and Appeals should reverse the Supreme Court holding in Reade v. Asbury Park, which was then before it.

With this background, Pamph. L. 1937, ch. 172, was enacted. It provides "The governing body of every municipality bordering on the Atlantic Ocean may lease, rent or hire * * *;" that "Any such letting shall be advertised in some newspaper circulating in the municipality at least ten days prior to the receipt of bids," and that "The power conferred herein is in addition to those given by any other act or acts." The language last quoted was apparently overlooked by the Supreme Court. This language is clear, its intent is obvious, and it is a complete bar to any construction of the 1937 act, which will result in any subtraction of municipal power theretofore given by any other act or acts. Consequently, the power conferred by the 1900 act was not in any way restricted by the passage of Pamph. L. 1937,ch. 172.

SECOND QUESTION. Was the 1900 act repealed or superseded by the passage of the Revised Statutes?

The Revised Statutes included Pamph. L. 1937, ch. 172, as article 3 of chapter 61 of title 40 under the section numbersR.S. 40:61-36 to 41, inclusive. R.S. 40:61-41 now provides "The power conferred in this article is in addition to those given by any other law or laws." The 1900 act is compiled in the Revised Statutes as R.S. 40:179-113, et seq. The language ofR.S. 40:61-41 continues the bar which was contained in Pamph.L. 1937, ch. 172, and prevents any construction of R.S. 40:61-36 to 41, inclusive, which will result in any subtraction of municipal power theretofore given by any other act or acts. Therefore, the 1900 act was in effect when Asbury Park passed the resolution in question.

The judgment of the Supreme Court is reversed.