Goldmann, Collester and Mintz. The opinion of the court was delivered by Goldmann, P.J.A.D.
The issue to be determined on this appeal from a judgment in favor of defendant Palisades Newspapers, Inc. (Palisades) is the proper construction of N.J.S.A. 35:2-1 -- in particular, whether Palisades was correct in charging the City of Englewood for official advertisements on the basis of an agate rule measurement of the space occupied, or whether the newspaper should have charged on the basis of an agate line count.
Plaintiffs, ten citizens and taxpayers of Englewood, brought an action pursuant to N.J.S.A. 2A:49-1 to recover on behalf of the city overpayments alleged to have been made by it for official advertising in Palisades' Press-Journal , a newspaper circulating in Englewood, Bergen County; to enjoin further official advertising in that newspaper except in the manner and subject to the terms and conditions set forth in N.J.S.A. 35:2-1, and for related relief. Palisades' answer denied the essential allegations of the complaint and set up certain defenses. Englewood took
a neutral position in its answer, leaving plaintiffs to their proofs.
On the basis of the pleadings and depositions, supplemented by certain affidavits, plaintiffs moved for partial summary judgment adjudging that Palisades' manner of computing charges for official advertising was illegal and the charges thus computed excessive, and that plaintiffs were entitled to recover on behalf of the city overpayments already made. Palisades countered with a motion for summary judgment. The city took a position in support of plaintiffs. The trial judge ruled in plaintiffs' favor, reserving for future determination, following a plenary trial: (a) Press-Journal's net paid circulation at relevant times from September 1965 (when official advertising in the newspaper began) to date, and (b) the amount of excess charges plaintiffs were entitled to recover on behalf of the city.
Palisades appealed from the judgment. The city, considering its position the same as plaintiffs', appointed their attorney as special counsel to represent it as well. Counsel then filed a cross-appeal on behalf of plaintiffs and Englewood. Prior to argument Palisades' counsel moved for leave to supplement the record, whereupon this court remanded the matter to the trial court to enable Palisades to move for a revision of the decision under R.R. 4:55-2 (now R. 4:42-2) or to reopen the partial summary judgment under R.R. 4:62-2 (now R. 4:50-1). On remand the trial judge determined that a plenary hearing should be had as to all issues and thereupon vacated the partial summary judgment he had granted.
At the conclusion of the plenary hearing the same judge who had granted the partial summary judgment reversed his original holding and found in favor of Palisades on all issues. Following the entry of an accordant final judgment plaintiffs filed a new notice of appeal, the city having determined not to pursue the matter further. The previously filed notices of appeal and cross-appeal from the partial summary judgment were dismissed by stipulation.
Beginning with publication in 1965 Palisades represented that the Press-Journal was authorized to publish official advertising as defined in N.J.S.A. 35:1-1, by reason of its meeting the qualifications set out in N.J.S.A. 35:1-2.2. It has at all times also represented that the average weekly net paid circulation of the newspaper was more than 5,000 and less than 10,000, and it was therefore entitled under N.J.S.A. 35:2-1 to charge 22 cents per insertion for official advertising "per agate line." (L. 1968, c. 134, enacted during the pendency of this action, increased the rate to 24 cents for newspapers having such circulation.) Englewood has since September 1965 placed numerous official advertisements in the Press-Journal and, until this litigation, paid Palisades the charges as computed by it.
N.J.S.A. 35:2-1, which sets the rates for official advertising, provides:
The price to be paid for publishing all official advertising as defined in section 35:1-1 of this Title in newspapers shall be as follows:
In newspapers published in the State of New Jersey having a bona fide net paid circulation of up to 2,500 copies, the rate shall be $0.16 per agate (or 5 1/2 point) line for each insertion; in the case of any newspaper having a bona fide net paid circulation of not less than 2,500 copies nor more than 5,000 copies, the rate shall be $0.20 per agate line for each insertion; and in the case of any newspaper having a bona fide net paid circulation of not less than 5,000 copies and not more than 10,000 copies, the rate shall be $0.22 per agate line per insertion; * * * but before any newspaper can charge the foregoing rates, the publisher or business manager of such newspaper must file with the properly authorized officer of every municipality, county or governing body, placing official advertising in such newspaper, an affidavit setting forth the average net paid circulation of such newspaper for the 12 months' period ending September 30 next preceding and the rate to be charged for official advertising, which in no case shall be in excess of, or below, the rates provided in the foregoing schedule.
The charge per agate or 5 1/2 point line shall be based on measurement of a line or not less than 10 ems in width, but date lines, paragraph endings, titles, signatures and similar short lines or lines that require special emphasis, such as the title of the notice, shall be computed as full lines where set to conform to the usual rules of composition.
(The omitted statutory language fixes increased rates for various categories of papers with greater circulation.)
Plaintiffs' complaint alleges that Palisades has improperly construed and illegally applied the statutory language in that (a) it computes its charges by measuring the gross space occupied by official advertisements, using an agate ruler and charging 22 cents for every agate space occupied by the particular advertisement, rather than for actual lines of type; (b) although it charges the statutory rate for each agate space, the type actually used in setting the advertisements is larger than agate; (c) it imposes charges for space occupied by copy which is neither requested by the city nor required by the advertisement, and (d) it did not file with any officer of the City of Englewood any affidavit stating the average net paid circulation of the Press-Journal , or the rate to be charged for official advertisements, as required by N.J.S.A. 35:2-1.
The main issue posed on this appeal is the meaning of the term "agate (or 5 1/2 point) line" used in N.J.S.A. 35:2-1. Plaintiffs contend that the language means a line of print in agate or 5 1/2 point type. Palisades construes the phrase differently: an "agate (or 5 1/2 point) line" does not mean a line of agate type, but the space occupied by an agate line, to be measured vertically by an agate ruler. The trial judge agreed with the latter contention when he ruled in Palisades' favor.
Definitions are in order. An agate ruler is a ruler divided into agate lines, containing 14 agate lines to an inch, and is commonly used by newspapers in measuring the vertical space occupied by display ads. A point is a measurement of linear space equal to 1/72nd of an inch. Agate type, often referred to as 5 1/2-point type, is any style or design of type whose characters can be printed in a linear vertical space of 5 1/2 points; it has no relation to type width. (Although agate type is commonly referred to as 5 1/2-point type, it should be noted that 14 lines of 5 1/2-point type would total 77 points, and not the 72 points per inch occupied by 14
agate lines.) Nonpareil type (a descriptive used in some of the statutes about to be mentioned) or 6-point type, is any style or design of type whose characters can be printed in a linear vertical space of 6 points. An em is a measure of column width, defined as the square of any given type body -- the larger the type, the larger the em. A slug is a device in which characters are set, measured in points, the point of the slug determining the number of actual lines to an inch. There are, of course, many styles or designs of type.
Joseph H. Daniels, former president and director of Palisades, now deceased, testified on deposition that official advertisements in the Press-Journal were printed in 6-point type on a 6-point slug, since Palisades did not own any smaller type. The width of the lines of type has always been 10 ems or greater. In determining the fees to be charged for official advertising Palisades used an agate ruler to measure the number of agate lines in the advertisement, and then multiplied that number by 22 cents. To set off the official advertisement, Palisades inserted a line of type reading "Public Notice" at the top of each advertisement, with line dividers above and below, and also inserted "Press-Journal" at the end. The Englewood City Clerk would send official advertisements to Palisades for publication in the Press-Journal. The instructions on the form supplied by the city dealt with such matters as when the notice should appear and the number of proofs of publication required.
The hearing on remand was concerned mainly with the presentation of exhibits and expert testimony.
Peter W. Jedrzejek, a typographer engaged in the sale of typography, testified for plaintiffs that some newspapers construed the statutory phrase "per agate (or 5 1/2 point) line" to mean a line of 5 1/2-point type, while others considered it as meaning the space occupied. In his judgment the statute ...