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Zakutansky v. City of Bayonne

Decided: October 27, 1967.

ANDREW ZAKUTANSKY, PLAINTIFF,
v.
CITY OF BAYONNE, KIWANIS CLUB OF BAYONNE AND ST. ANDREW'S ROMAN CATHOLIC CHURCH OF BAYONNE, DEFENDANTS



Pindar, J.s.c.

Pindar

[98 NJSuper Page 17] The complaint herein is in the nature of a declaratory judgment action specifically involving two municipal permits granted by City of Bayonne (city) to Kiwanis Club of Bayonne (club), and St. Andrew's Roman Catholic Church of Bayonne (church) named as defendants. The club was not served with process, excluding it as a party. Furthermore, it is initially stated that since both events were held prior to the filing of this suit, consideration

of them becomes moot. This is not disputed and will be accepted by this court. Notwithstanding, counsel for the city urges that the present litigation presents for determination the question of the city's authority to grant similar permits in the future. Counsel was granted leave to file a supplementary supporting affidavit to the above effect.

However, the Court does not agree with plaintiff that the permits now at issue are similar to those contained in the original complaint.

The two original permits which formed the basis of this motion were issued pursuant to a city council resolution passed on February 17, 1967. The permit to Club allowed a circus; the permit to Church allowed a drum and bugle competition. Both events were to take place in Veteran's Park Stadium. The permits now under consideration as stated in the supplemental affidavit all relate to athletic events to be held in Veteran's Park Stadium. Thus the Court does not decide the question whether the statutes at issue authorize a municipality to grant permits for events other than those athletic in nature.

The matter is now before the court on counter-motions for summary judgment.

Plaintiff contends that the city acts ultra vires in permitting these uses. He further contends to support his conclusion that R.S. 40:61-5, and "incidentally" R.S. 40:61-4, are both violated. Whether the city is or is not acting ultra vires is a question of statutory construction. The case is therefore properly one for summary judgment.

Although the courts will generally view the evidence in a light most favorable to the party against whom a judgment is sought, they will not perform useless exercises. Where there are no inferences to be drawn from the evidence in favor of either party, the rule has no application. The court therefore treats the evidence the same for all parties in this case of cross-motions where the facts are not disputed.

Our courts are not free, however, to disregard one rule of statutory construction dictated by our Constitution, i.e., that powers granted by the Legislature to municipalities

are to be liberally construed in their favor. Not only the powers expressly granted, but powers implied from, incidental or essential to the expressed powers, are to be both supplied and liberally construed in the municipality's favor. N.J. Const. 1947, Art. IV, ยง VII, par. 11.

Implementing this policy, N.J.S.A. 40:24-4 unequivocally states that all sections of Title 40, "Municipalities and Counties," appearing within the confines of Subtitle 3 (wherein the instant statutes appear) are to be construed by the courts "most favorably to municipalities." This New Jersey policy is unique in the 50 states and determines this court's approach in construing the instant statutes which are set out below:

"The body in control of any playground or place of public resort and recreation of any municipality, in order to provide funds for improving, maintaining and policing thereof, may hold outdoor exhibitions, concerts, games and contests therein, and charge and collect reasonable admission fees for entrance thereto, while in use for any such purpose. No such playground or place of resort and recreation shall be so used on more than two days, nor more than eight hours in all, in ...


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