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City of Plainfield v. Courier News

Decided: November 15, 1976.

THE CITY OF PLAINFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THE COURIER NEWS, A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT, AND THE DAILY JOURNAL, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT



For reversal -- Chief Justice Hughes, Justices Mountain and Clifford and Judge Conford. For affirmance -- Justices Sullivan, Pashman and Schreiber. The opinion of the court was delivered by Mountain, J. Sullivan, Pashman and Schreiber, JJ., dissenting.

Mountain

At issue in this case is the continued eligibility of the Courier-News, a daily newspaper, to serve as the official newspaper for the City of Plainfield after moving its headquarters from Plainfield, which is in Union County, to Bridgewater Township, nine miles away in Somerset County. An official newspaper is one designated by the governing body of a municipality, pursuant to N.J.S.A. 40:53-1, for the publication of advertisements and notices required by law to be published by the municipality. Statutory publication requirements differ to some extent, as will be pointed out below, but typically they specify that a notice must be published "in a newspaper published and circulating in the municipality, if there be one, and if not, in a newspaper published in the county and circulating in the municipality" (N.J.S.A. 40A:2-19, publication of local bond ordinances).

After the removal of the Courier-News, the City of Plainfield brought a declaratory judgment action seeking to determine whether it could continue to publish its legal advertisements in the Courier-News, and if not, whether the Daily Journal, a newspaper published in Elizabeth, was qualified and eligible. The trial court determined that the Courier-News was still published in Plainfield and thus remained eligible for designation as an official newspaper. This decision was affirmed by the Appellate Division; a dissent was filed by Judge Halpern, however, chiefly on the ground that in drafting the statutes dealing with publication requirements, the Legislature had not contemplated that a newspaper might be considered to be published in more than one place. The case is thus before us as of right. R.

2:2-1(a)(2). We have reviewed the arguments of the parties in the light of both the statutory language and the probable intent of the Legislature. We find ourselves unable to agree with the conclusions reached by the trial court and the Appellate Division majority and hence reverse, in large part for the reasons expressed by Judge Halpern in his dissenting opinion.

The Courier-News was incorporated in 1894 as the Plainfield Courier-News, a corporate name which it still retains. Until its move to Bridgewater Township, which occurred in March 1972, its newsgathering, editing, printing and circulation operations were centered in Plainfield and the newspaper was entered as second-class mail at the Plainfield post office.*fn1 Since it has been the only daily newspaper published in Plainfield and has long enjoyed a wide circulation there, it has been for many years designated as Plainfield's official newspaper.

The paper's move to Bridgewater Township took place after the old printing presses at the Plainfield office "just fell apart," as its publisher testified. Larger and more modern facilities were constructed at which over 200 persons are presently employed. The executive offices are located there, and most of the editorial work and all the layout, printing, and circulation operations take place there. The paper is entered as second-class mail at the Somerville post office, which serves Bridgewater Township. The Plainfield office remains, but it is staffed by only seven or eight employees concerned with local advertising and news coverage. Preliminary typing and editorial work are done in the office, but both advertising and news copy are sent to Bridgewater Township for final handling. Similar local offices are maintained in several other communities, but they are much smaller, being staffed by only one or two employees.

The total circulation of the paper is about 66,000 copies, of which 8,800, or almost one-seventh, are distributed in Plainfield.

The Courier-News argues that since it maintains a functioning "publication office" in Plainfield and since the first newspapers printed each day are put into circulation in Plainfield, the paper continues to be published in that city within the intendment of the publication statutes. The Daily Journal, the other daily newspaper circulating in Plainfield, argues that the Courier-News is no longer published in Plainfield, but is published outside Union County and thus is not eligible to be Plainfield's official newspaper.

The Daily Journal is published in Elizabeth, about 15 miles away at the eastern end of Union County. Until the removal of the Courier-News, the Daily Journal's circulation of about 67,000 copies was largely confined to eastern Union County and only a few copies were sold in Plainfield. In 1971, however, the Daily Journal entered upon a campaign to become a county-wide newspaper. It established a small branch office in Plainfield, staffed by three reporters to cover local news, and succeeded in raising its 1972 Plainfield circulation figure to 1,144.*fn2 The Daily Journal does not allege that it is published in Plainfield, but asserts that it is "published in the county and circulating in the municipality" within the intendment of the publication statutes, and is thus eligible to publish Plainfield's legal advertising in the event that no newspaper is published in Plainfield.

I

As a threshold issue we consider whether by moving its headquarters the Courier-News has forfeited its status as a "legal newspaper," that is, one generally qualified to print

the legal notices required of public bodies. While the issue is now moot, we discuss it for the purpose of elucidating the distinction between qualification as a legal newspaper, which is governed by the provisions of Title 35 (Legal Advertisements), and eligibility to publish the legal notices of a particular municipality, which is governed for the most part by the requirements set forth in various sections of Titles 40 and 40A (Municipalities and Counties).

At the time of removal of the Courier-News, the qualifications of a legal newspaper were enumerated in N.J.S.A. 35:1-2.2, set forth in pertinent part below:

Whenever, by law, it is required that there be published by printing and publishing in a newspaper or newspapers ordinances, resolutions or notices or advertisements . . . by any county, city or other municipality or municipal corporation, . . . such newspaper or newspapers must . . . meet the following qualifications, namely: said newspaper or newspapers shall be entirely printed in the English language, shall be printed and published within the State of New Jersey, shall be a newspaper of general paid circulation possessing an average news content of not less than 35%, shall have been published continuously in the municipality where its publication office is situate for not less than 2 years and shall have been entered for 2 years as second-class mail matter under the postal laws and regulations of the United States . . . [Emphasis added]

The intent of the Legislature is self-evident: to ensure that any newspapers carrying legal advertisements will be ones that are read and understood by a cross-section of the community, and that have "stability and continuous existence in the municipalities where their publication offices are maintained." In re Bond Printing Co., Inc., 135 N.J.L. 478, 480 (E. & A. 1947). It is not disputed that the Courier-News is qualified in all respects except as to the requirement emphasized in the citation.*fn3 The paper's position is that it has continuously maintained its publication office in Plainfield and has continued to be published there, so

that it meets this requirement as well. For this proposition it relies heavily on Hunterdon County Democrat v. Recorder Publishing Co., 117 N.J. Super. 552 (Ch. Div. 1971).

The facts of Hunterdon County Democrat were similar in many respects to those of the present case. The Hunterdon Review, a weekly newspaper, had been printed and published in Whitehouse Station (Readington Township) for many years. In 1969 the newspaper was consolidated with another local weekly, the High Bridge Gazette, and the main printing, editorial and advertising offices were relocated in Clinton. The Whitehouse Station office remained open for limited editorial, advertising and circulation purposes, and the paper continued to be entered as second-class mail at the Whitehouse Station post office.

The Hunterdon County Democrat, a rival newspaper published in Flemington and circulating throughout Hunterdon County, sought a declaratory judgment that the Hunterdon Review, by virtue of its move, no longer qualified under N.J.S.A. 35:1-2.2 for the publication of official advertising. The Democrat relied on In re Bond Printing Co., Inc., 135 N.J.L. 478 (E. & A. 1947), in which a qualifying newspaper published in Red Bank had been purchased in 1946 by an Asbury Park firm; its entire publishing operation had been moved to Asbury Park and the name of the newspaper changed to the Asbury Park Sun. Rejecting the Sun's assertion that as successor to a qualified newspaper it automatically continued to be qualified to publish legal advertisements, the court found that the Sun had had its publication office in Asbury Park only since 1946 and had been published there only since that date, so that it failed to meet the two-year requirement of N.J.S.A. 35:1-2.2.

The court in Hunterdon County Democrat carefully distinguished the fact situation and the policy considerations there present from those in Bond Printing. In Bond, the entire newspaper was bodily removed to another municipality. In Hunterdon County Democrat, however, a "publication

office" was retained at Whitehouse Station; in fact, since the paper continued to be entered there as second-class mail, Whitehouse Station remained the "office of publication" for purposes of the federal postal laws. Finding that "[t]here is nothing in the statute [ N.J.S.A. 35:1-2.2] which requires editorial or business functions to be wholly performed at the publication office, or which limits a newspaper to one 'publication office.'" (117 N.J. Super. at 568-69) the court concluded that the Whitehouse Station office had not lost its status as a publication office of the Hunterdon Review. Additionally, the court found that the Hunterdon Review continued to be published at Whitehouse Station, relying on the formulation of Montesano v. Liberty Warehouse Co., 121 N.J.L. 124, 125 (E. & A. 1938) that "the place of publication of a newspaper is where the paper is first put into circulation, where it is first issued to be delivered or sent, by mail or otherwise, to its subscribers." Since a truck dispatched from Whitehouse Station to the printing plant picked up the whole issue each week, and a substantial number of copies were distributed in Whitehouse Station, the court held that a liberal reading of N.J.S.A. 35:1-2.2 so as to effectuate the legislative intendment required the finding that Whitehouse Station remained a place of publication.

Although there are strong implications in the Hunterdon County Democrat opinion that a newspaper may have more than one publication office and also may be published in more than one place,*fn4 such a conclusion was not necessary

for the decision, given the posture in which the case was presented to the court. It is not clear what the result would have been if, for whatever reason, the Hunterdon Review had asserted that it was also published in Clinton. Indeed, the court expressly disclaimed any consideration of the issue of whether the Hunterdon Review was eligible for designation by any particular municipality as an official newspaper pursuant to N.J.S.A. 40:53-1, limiting its consideration to the Review's statutory qualifications as a legal newspaper. 117 N.J. Super. at 558-59.

For reasons that will be developed later in this opinion, we find it impossible to agree with the position (at least under ordinary circumstances) that a newspaper can have more than one place of publication. While we see no reason to disagree with the holding in Hunterdon County Democrat, we do expressly disapprove any language in the opinion suggesting there may be more than one place of publication. Since there can be no question that the Courier-News, after moving to Bridgewater Township, maintained its

publication office there and was published there,*fn5 it follows that as of the date of the move (March 27, 1972) the paper could no longer meet the two-year publication requirement of N.J.S.A. 35:1-2.2 and had thus temporarily forfeited its status as a legal newspaper.

As we noted earlier, however, the issue has become moot. First, even before this case went to trial on February 19, 1974, the Legislature had passed an amendment to N.J.S.A. 35:1-2.2, as follows:

In the event any newspaper which shall have been qualified to publish legal advertisements shall move its publication office to any municipality in the same county or in an adjacent county of this State and which shall otherwise continue to meet the qualifications of this section, it shall continue to be qualified to publish legal advertisements which it was qualified to publish prior to moving said publication office for a period of 2 years after the date of the moving of its publication office.

The Courier-News thus became a beneficiary of a two-year "grace period" after its move, during which it remained qualified as a legal newspaper and continued eligible to publish Plainfield's official notices.

Second, after the Courier-News had been established in Bridgewater Township for two years and the grace period had expired, it had been publishing in the municipality where its publication office was situated (i.e., Bridgewater

Township) for the required two years and thus qualified as a legal newspaper under N.J.S.A. 35:1-2.2. It seems clear, indeed, that the Legislature's intent in passing the amendment was to preserve for a newspaper that moved its publication office its qualification as a legal newspaper during the two-year period before it qualified in its new location. In any event, there is no doubt that the Courier-News at present qualifies as a legal newspaper. We pass then to the second issue in the case: whether the Courier-News is eligible to publish the legal advertising of the City of Plainfield.

II

The specific statutory requirements for newspapers in which official notices may be published take a number of different forms; some representative ones are set forth in the addendum to this opinion. Notwithstanding their variety, they have the same general tenor and clearly seek to achieve the same end: wide dissemination of notice throughout the municipality affected, so that citizens and interested parties may have an opportunity to become informed and to be heard. Reisdorf v. Borough of Mountainside, 114 N.J. Super. 562, 573 (Law Div. 1971); Masnick v. Mayor & Council of Cedar Grove Township, 99 N.J. Super. 436, 439 (Law Div. 1968); Bruno v. Borough of Shrewsbury, 2 N.J. Super. 550, 554 (Law Div. 1949). In concluding that the Courier-News, which continues to have the largest circulation in Plainfield and the closest local ties, remains eligible to publish the city's official notices, the courts below gave due attention to this clear intent of the Legislature. In their endeavor to fulfill the legislative intent in these particular circumstances, however, they have effected a considerable distortion of the specific language of the publication statutes.

The ultimate, underlying issue in the case is whether the Courier-News is at present "published" in Plainfield. The fundamental meaning of the word is "to declare publicly, make generally known" (Webster's Third International

Dictionary); but the precise definition, of course, depends on the context in which the word is used. Not only do interpretations from the law of copyright, libel, or wills offer little assistance, but many of the earlier cases, which are concerned with whether "publish" can be distinguished from "print," have only limited applicability to the case at hand. The latter distinction has been clearly expressed in Wolfe County Liquor Dispensary Association v. Ingram, 272 Ky. 38, 113 S.W. 2d 839, 842 (1938) ("A book may be printed without being published. It is published only when it is offered for sale or put in general circulation"); see also State v. Briwa, 198 La. 970, 5 So. 2d 304, 308 (1941); Addison v. Town of Amite City, 161 So. 364 (La. App. 1935); In re Gainsway, 66 Misc. 521, 123 N.Y.S. 966 (Sup. Ct. 1910). In any case, it is settled in New Jersey that a newspaper need not be regarded as published at the place where it is printed. Schultz v. Board of Education of Wanaque, 105 N.J. Super. 165 (App. Div. 1969); Wildwood Publishing Company v. Wildwood, 35 N.J. Super. 543 (Law Div. 1955); see also N.J.S.A. 35:1-2.2a, set forth in the addendum to this opinion. It is less simple, however, to arrive at an affirmative definition of "publish" that permits ready identification of a newspaper's place of publication.

Mr. Justice Field, in Leroy v. Jamison, 15 Fed. Cas. p. 373 (No. 8,271) (C.C.D. Cal. 1875), confronted this problem in connection with a Mexican grant of land in Santa Barbara County, California. A survey of this land, preliminary to issuing a patent, was required by statute to be published "in a paper published nearest the land." The survey was in fact published in the Santa Barbara Gazette, which was printed in San Francisco, several hundred miles north, and sent immediately to Santa Barbara for distribution there. Finding publication to have been insufficient, the opinion stated:

It was not alleged . . . that the entire issue was sent to Santa Barbara, though intended principally for circulation there. . . . The statute says that the notice must be published in a paper where the place of its publication is nearest the land, not where the place of its distribution is nearest. In one sense, a paper is published in every place where it is circulated, or its contents are made known. But it is not in that general sense that the language, "place of publication," in the statute is used. That language refers to the particular place where the paper is first issued, that is, given to the public for circulation. [15 Fed. Cas. at 380]

This analysis was applied by Mr. Justice Holmes, writing for the Supreme Judicial Court of Massachusetts in Rose v. Fall River Five Cents Savings Bank, 165 Mass. 273, 43 N.E. 93 (1896). A foreclosure statute required a notice of sale to be published in a newspaper, if such existed, published in the town where the mortgaged premises were located. The premises were in Dighton; the notice was published in the Dighton Rock, which was one of fifteen local newspapers, of identical content but with different mastheads, printed in Fall River and entered there as second-class mail. A small office, staffed by an agent, was maintained by the Dighton Rock in Dighton. Nevertheless, the court found that the newspaper was not published in Dighton, reasoning as follows:

Assuming that papers printed from the same type, with or without different names, might be published in different towns, within the meaning of the statute, in this instance all the 15 heads of the Hydra had their homes in Fall River. The word "published" is used in the statute not quite in the same sense in which it might be used in libel, but refers to the home office of the paper. There was but one place of management, and the paper was given to ...


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