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Glick v. Trustees of Free Public Library

Decided: June 30, 1949.


On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 1 N.J. Super. 308.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Heher, J.


[2 NJ Page 581] The defendant Trustees of the Free Public Library of the City of Newark appeal from the judgment of the Appellate Division of the Superior Court setting aside,

on certiorari, a resolution adopted by the Trustees on March 24, 1948, whereby a contract for the binding and rebinding of the Library's books during the year 1948 was awarded to defendant Wm. H. Rademaekers & Son Co., on a bid of $23,811.25. The respondents submitted a bid of $23,112.95. No reason was assigned for the rejection of the lower bid; want of responsibility is not alleged. The conclusion of the Appellate Division was that the Trustees constitute "a branch or agency of the municipality," and so are "within the meaning of the term 'municipality' as used in R.S. 40:50-1." This is the crucial question on the merits.

The respondents move to dismiss the appeal for want of jurisdiction. The writ of certiorari was allowed July 22, 1948, prior to the effective date of the Judicial Article of the Constitution of 1947. The judgment of the Appellate Division was entered March 3, 1949. The notice of appeal was filed the ensuing March 30th. The insistence is that the judgment is not appealable of right under Article VI, section V, paragraph 1 of the Constitution, but is reviewable by this court only on certification pursuant to paragraph 1 (d) of the cited constitutional provision and Rule 1:2-1 of the court. On May 20th, the bidder to whom the award was made, a party to the certiorari proceeding, interposed a petition for certification, "as within time." It is said that there is "a diversity of interest" between the defendants which calls for "separate and independent representation," and that certification "is necessary in the event that the * * * appeal be dismissed for failure to seek certification."

The appeal was well taken, and the motion to dismiss is accordingly denied. Giordano v. City Commission of Newark, decided this day by this court. 2 N.J. 585. The petition for certification is denied. The petitioner made no appearance in the court below. Moreover, the judgment was appealable; and the presentation of the petition was not timely. Rule 1:5-5.

On the merits, the argument, in brief, is that the Trustees were constituted "a separate corporate entity" by the act under which it came into being (R.S. 40:54-1 et seq.), whose

existence was not terminated by the adoption of the Commission Government Act (R.S. 40:71-1 et seq.) by the City of Newark, and therefore the corporate body is not of the class subject to "the general laws relating to municipalities," and R.S. 40:50-1 et seq., has no application.

In an earlier case, the old Supreme Court ruled that the Trustees form "a branch or a board of the municipal government, * * * to manage educational matters for the benefit of the whole community," and not an "independent entity," and, while given a corporate existence "for * * * convenience and for the purposes of * * * administration," the corporate body is yet "a mere branch or agency for that special purpose." The Court of Errors and Appeals found it sufficient to rest affirmance of the particular judgment on the narrower ground that the employees of the Library are "in the paid service of the municipality," and therefore subject to the provisions of the Civil Service Act. Trustees of Free Public Library of Newark v. Civil Service Commission, 83 N.J.L. 196 (Sup. Ct. 1912); affirmed, 86 N.J.L. 307 (E. & A. 1914).

There is no need to delineate the statutory scheme. It suffices to say that the function delegated to the library management is local and municipal in legislative concept; the instrumentality is an adjunct of the local government in the field of education and intellectual recreation, and under its control. It is the municipality that is empowered to "establish a free public library within its corporate limits." R.S. 40:54-1. There is provision for a referendum. R.S. 40:54-2 et seq. The cost of operation is borne by local taxation; and the money is appropriated by the local governing body or appropriate board. R.S. 40:54-8. The trustees are appointed by the mayor or chief executive; and the mayor and one of the local superintendents of schools or the supervising principal are made members of the board. R.S. 40:54-9. Library funds are deposited in the municipal treasury, and drawn upon by municipal officers on the vouchers of the trustees. R.S. 40:54-18. And, as we have seen, the library employees are in the paid service of the municipality. It is

an agency of the municipality notwithstanding its incorporation as a body politic. That in itself does not give rise to a relationship radically different in character from that which would otherwise exist. It is that substance and not the ...

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