On appeal from the Supreme Court, whose opinion is reported in 132 N.J.L. 552.
For the appellant, Leo Rosenblum.
For the respondents, Charles A. Rooney (Charles Hershenstein, of counsel).
The opinion of the court was delivered by
HEHER, J. We hold the view that a municipality may lawfully publicize, at public expense, what its governing body conceives to be sound reasons, relating to the essential local
welfare, for the rejection by the people of the state of proposed amendments to the constitution.
The power to take reasonable measures to conserve their own vital interests is incident to the general powers of local government conferred upon the municipalities. The right of advocacy and defense of the communal welfare in the state legislative forum has long been accorded general recognition. Smathers v. Board of Chosen Freeholders of Atlantic, 113 N.J.L. 281; In re Carrick, 127 Id. 316; Farrel v. Town of Derby, 58 Conn. 234; 20 A. 460; In re Taxpayers and Freeholders of Plattsburgh, 27 App. Div. 353; 50 N.Y. Supp. 356; Bachelder v. Epping, 28 N.H. 354; Meehan v. Parsons, 271 Ill. 546; 111 N.E. Rep. 529; Denison v. Crawford County, 48 Iowa 211; Arthur v. Dayton, 4 Ky. Law Rep. 831, (1883); Powell v. City and County of San Francisco, 62 Cal. App. R. (2 d) 291; 144 Pac. Rep. (2 d) 617. If it is the local government's legitimate province to challenge judicially, at public expense, the constitutionality of legislative enactments which adversely affect the local interest, and this cannot but be conceded, its right of opposition within reasonable bounds before the event cannot be doubted. And, a fortiori, a municipal government may invoke reasonable measures to apprise the state electorate, for its information and guidance in the referendum election, of the probable impact of the adoption of suggested alterations in the state's organic law upon the local economy. For obvious reasons, changes in the fundamental law are of much more serious import than transitory legislative enactments. And it does not matter that the municipality is merely a creature of the legislature; that does not serve to deprive the collective unit of the right of self-advancement and self-protection by reasonable and legitimate means fairly incident to its general powers and not in opposition to specific legislative directions. Such is of the very essence of the power of local self-government. Its complete subordination to the state, subject to constitutional restraints, does not render it incapable of serving the common interest in local affairs, within the allotted sphere of action. As stated in Farrel v. Town of Derby, supra, "The right of self-defense is well nigh universal," and the
municipalities "are not exceptions to the rule." After all, the municipality is a body politic composed of the individual inhabitants within its corporate confines for the regulation of the internal affairs of the community, and the service of the civil government of the state; and it would be illogical to hold that a right which concededly resides in the individual cannot be exercised in the aggregate through those elected to administer the local government, where demanded by the common interest. Would a submission of the city's cause to a state-wide audience by radio be beyond its corporate powers? We think not. Yet the written word affords opportunity for analysis and thoughtful consideration and, therefore, more intelligent understanding of the issues, which ordinarily are not free from complexity when they involve changes in the state's organic law.
While a municipal corporation is a government of enumerated powers, acting by a delegated authority, it possesses also such rights as arise by necessary or fair implication, or are incident to the powers expressly conferred, and such as are essential to the declared objects and purposes of the municipality. N.J. Good Humor, Inc., v. Bradley Beach, 124 N.J.L. 162. Vide R.S. 40:48-2, 40:72-3. Jersey City is in the latter statutory category. By that section, it is invested with "all the powers necessary for its government not in conflict with the laws applicable to all municipalities or the provisions of the constitution * * *." Generally, a public purpose has for its objective the promotion, inter alia, of the "general welfare, security, prosperity, and contentment of all the inhabitants or residents" of the municipality; and the determination of what constitutes a public purpose is primarily a legislative function, subject to review and correction by the courts only when the action taken is arbitrary or capricious. 37 Am. Jur. 734, 735. To uphold the resolution under review is not, of course, to imply judicial concurrence in the character and fitness of the advertisements or the strictures and criticisms therein contained. The question before us is the existence vel non of the power represented by the resolution, not the propriety of the things done in its exercise. All the reasons assigned for error in the Supreme Court are
directed to the validity of the resolution itself, i.e., the existence of the power, and not to the manner of its exercise. Neither the content nor tone of the advertisements is determinative of the validity of the resolution; nor does the validity of the exercise of the power conferred by the resolution depend upon conformance with judicial concepts of sound and wise policy or fair and temperate advocacy. Extravagance of statement does not serve to invalidate the exercise of the power. Censorship is not of the judicial function. Where the action taken is not clearly capricious, the local legislative body is accountable only to its constituency.
As with other powers, the exercise of the particular power is circumscribed by reason. Here, the subject-matter involved fundamental principle and policy deemed vital to the community-at-large; and we entertain no doubt that the challenged action was a legitimate local function.
We are thus brought to a consideration of the question of whether the expenditures so made are fairly comprehended in the appropriation of the then current year for "Railroad Tax Litigation."
The city urges that the point is moot, since full payment of the advertising bills has been made, and the writ would be "inefficacious and valueless," and was therefore properly dismissed. The cases of Jersey City v. Traphagen, 53 N.J.L. 434; Hoboken v. City of Jersey City, 68 Id. 607; Parker v. Point Pleasant, 11 N.J. Mis. R. 535, and Weed v. Township Committee of Hillside, 85 A. 329, are cited, among others.
One-half of the expense of the advertisements in question was incurred before the first application for a certiorari, and the entire expense had been incurred and most of the advertisements published when the second application was made. The writ was allowed "without stay;" and thus it did not operate as a supersedeas. It is the general rule that even a contract ultra vires for failure of an appropriation or other act made a condition precedent by statute may be ratified by performance of the condition essential to a ...