The question here is within a very narrow compass. Was the governing body required to advertise prior to the receipt of bids and make the award to the highest responsible bidder?
The latest expression of the legislature on the subject, prior to the revision, is found in Pamph. L. 1937, ch. 172 and now found in R.S. 40:61-36 to 41, and that requires the governing body of every municipality bordering upon the Atlantic Ocean to advertise for bids and award the lease to the highest responsible bidder. The pertinent sections are as follows:
"40:61-36. Leasing of parks, etc. authorized. Period of leases.The governing body of every municipality bordering on theAtlantic Ocean may lease, rent or hire, the whole or any part of any public parks, recreation grounds or places of public resort, owned by it and not presently needed by the municipality for municipal purposes, or any building or portion thereof located therein for any period not exceeding five years." (Italics supplied.)
"40:61-39. Letting to highest bidder. Any such letting shall be to the highest responsible bidder therefor."
"40:61-40. Advertisement for bids. Any such letting shall be advertised in some newspaper circulating in the municipality at least ten days prior to the receipt of bids."
Conceding all that is contended as to the state of the law at the time the legislature proceeded to enact Pamph. L. 1937,ch. 172, "there is no safer or better settled canon of interpretation than that when language is clear and unambiguous it must be held to mean what it plainly expresses." 2 SutherlandStatutory Construction (3d ed.), p. 334.
If the plain language of the act is to be overcome by resort to the inconsistent provision of Pamph. L. 1900, ch. 99, not requiring advertising, then the lucid meaning of distinct English words is rendered inert. Inconsistent provisions cannot stand. There should also be applied the additional canon of construction that the legislature is presumed not to do a *Page 323 vain thing and enact useless legislation. It is to be assumed that the legislature was doing more than merely restating an existing power without in any way amplifying or modifying it.
"The principle upon which subsequent legislation will operate to repeal prior legislation without an express repealing clause has been frequently considered by the courts of this state and is well defined. Where there are two acts on the same subject, the rule is to give effect to both, if possible. If the two acts arerepugnant in any of their provisions, the later act operates torepeal the earlier to the extent of the repugnancy." (Italics supplied.) State v. Vineland (Court of Chancery, 1906),72 N.J. Eq. 289 (at p. 290); affirmed (Court of Errors andAppeals, 1907), 72 Id. 862.
Stress is laid by the appellants on the necessity of giving effect to the following clause contained in the act of 1937 (Pamph. L. 1937, ch. 172 — R.S. 40:61-41):
"The power conferred in this article is in addition to those given by any other law or laws."
This section has reference to the basic powers theretofore granted as distinguished from the mode or manner of the exercise of such power. The power to lease is preserved but its exercise is conditioned by the mandatory verb "shall" in sections 39 and 40 of R.S. 40:61, supra. Every such municipality may make such a lease, but if it chooses to do so, the letting shall be made to the highest responsible bidder, and the letting shall be advertised as therein provided. The construction given by the majority opinion renders this plain provision practically useless and meaningless and it goes without saying that it is reasonably to be presumed that the legislature intended to make some change in the law. The saving clause in the act of 1937 must, on well settled principles, be given a construction consistent with the manifest policy of the enacting clause — a construction that proceeds upon the premise that the legislature intended to do what the enacting clause provides in clear and unambiguous terms, and that language is to be given its ordinary meaning. Saving clauses and provisos and exceptions are to be strictly construed and "all doubt should be resolved in favor of the general provision rather than the proviso or exception." New *Page 324 Jersey State Board of Optometrists v. S.S. Kresge Co. (Supreme Court, 1934), 113 N.J.L. 287; affirmed (Court ofErrors and Appeals, 1935), 115 Id. 495; Sutherland StatutoryConstruction (3d ed.) §§ 4933, 4937.
All pre-existing basic powers are preserved intact but the prior inconsistent procedural provisions must give way to those provided in the act of 1937 as now contained in R.S. 40:61-35 to 41. This construction does not do violence to said section.
The act applies to municipalities bordering on the Atlantic Ocean, whether they be boroughs, townships or cities. It is presumed that the act was aimed at good government and to prevent evils which might flow from such lettings without advertisement and public notice and to one not the highest bidder. The contention that this cloak of protection was to be thrown about all municipalities bordering on the Atlantic Ocean excepting fourth class cities is untenable. The problems of municipalities along the Atlantic Ocean are comparable, whether they be boroughs, townships or cities. Most all of them have their boardwalks, beach fronts, buildings erected with taxpayers' money, and other privileges which they let out for revenue and thus lessen the taxpayers' burden. It is illogical to conclude that fourth class cities were to be excluded from the benefits conferred by such an act upon all other seashore municipalities.
The 1937 act (chapter 172) is found in R.S. 40:61-36 to 41 and as a revised statute under the general classification of Municipalities, chapter 51, subtitle Public Parks and Playgrounds, under article 3 thereof entitled "Lease by Municipalities bordering on the Atlantic Ocean," whereas the act of 1900, chapter 99, as amended in 1919, chapter 252, is found inR.S. 40:179-116, but not as a revision but only as a part of a compilation under the classification: Subtitle 13 Cities (Compilation). The provisions of the 1937 act chapter 172 should therefore gain force and effect by virtue of such treatment in the revision, as the revision is a wholly independent enactment and supersedes all pre-existing general laws. State v.Czarnicki (Supreme Court, 1940), 124 N.J.L. 43; Duke PowerCo. v. Somerset County Board of Taxation *Page 325 (Court of Errors and Appeals, 1940), 125 Id. 431 (at p. 433).
The act of 1925 (chapter 248 — R.S. 40:176-17), the second act upon which the city also relies for its failure to advertise is found in the category of a compilation. It is generally comparable to the 1900 act as amended in 1919 and further in view of the history of its enactment, statements herein relating to the 1900 act are applicable thereto.
The third act, R.S. 40:61-1.g (under the caption of chapter 61 "Public Parks and Playgrounds Article I. In a single municipality") upon which the city also relies is not properly construed in the briefs of the appellants for the following reason:
The original act of 1933 is as follows:
"Chapter 355. An Act to amend an act entitled `An Act concerning municipalities.'
"BE IT ENACTED BY THE SENATE AND GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY:
"1. Section thirteen of the act to which this act is amendatory is hereby amended to read as follows:
"13. The governing body of every municipality may lease, rent or hire, any part of any public resort, owned by it and not presently needed for the purpose for which it was acquired, or any building, or portion thereof thereon not so needed, for any period not exceeding five years. The governing body may let out to any person or persons, corporation or corporations, any privileges in any public park or place of public resort, upon such terms and conditions as it may prescribe; and upon the violation of the terms upon which any lease or privilege is granted, the same shall become void, and said governing body shall have power to so declare, and may re-enter any place so leased and prevent the exercise of any privilege so forfeited; any such letting shall be to the highest responsible bidder therefor. The letting thereof shall be advertized in somenewspaper circulating in the municipality at least ten days priorto the receipt of bids.
"2. This act shall take effect immediately.
"Approved June 27, 1933." *Page 326
In the Revised Statutes this act is divided arbitrarily into two parts which read as follows:
"40:61-1.g. Lease, for any term not exceeding five years, any part of any public resort and recreation place owned by the municipality and any building thereon, or part thereof, not presently needed for such use; and
* * * * * * * "h. Let out and rent any privilege in any of its parks, beaches, water fronts and places for public resort and recreation, to the highest responsible bidder therefor, after advertisement of the time and place of such letting, at least ten days prior to the receipt of bids, in a newspaper circulating in the municipality, and upon such terms and conditions as it may prescribe. Upon the violation of the terms upon which any lease or privilege is granted, the same shall become void, and said governing body may so declare, and may re-enter any place so leased and prevent the exercise of the privilege so forfeited." (Italics supplied.)
The source material is stated as follows: Pars. g.h., L. 1917, c. 152, Art. XXXVI, § 13, p. 455 (1924 Suppl. § [*]136-3613), as am. by L. 1933, c. 355 § 1, p. 958.
While the revision is a wholly independent enactment and supersedes all pre-existing general laws, nevertheless it is the rule that a re-arrangement of the statutes in a general revision of the law does not usually change the statute's significations.R.S. 1:1-5 provides as follows:
"1:1-5. Classification and arrangement; effect on construction. The classification and arrangement of the several sections of the Revised Statutes have been made for the purpose of convenience, reference and orderly arrangement, and therefore no implication or presumption of a legislative construction is to be drawn therefrom."
The paragraphs "g" and "h" are therefore to be read to-together and advertising is required. They are presently applicable and not inconsistent with the act of 1937 chapter 172 but rather in harmony therewith. The Supreme Court so held in an opinion delivered by Mr. Justice Eastwood and concurred in by Mr. Justice Parker and Mr. Justice Donges. *Page 327
The enactment of the later act of 1933 chapter 355 removes the effectiveness of the Reade v. Asbury Park opinion (SupremeCourt, 1925), 101 N.J.L. 319; affirmed (Court of Errors andAppeals, 1925), 102 Id. 221, relied upon by the appellants by the same reasoning in which the Reade opinion deleted the effect and applicability at that date of the original Home Rule Act of 1917, chapter 152, namely, resulting from the effect of the then later act, Pamph. L. 1919, chapter 252, amendment to the 1900 act chapter 99.
Even on the contrary assumption, the result would be the same. In the case of Reade v. Asbury Park, supra, it was held that the Home Rule Act of 1917 would require advertising and an award to the highest bidder were it not for the fact that the properties there involved were "secured by the city under" the act of 1900, supra, providing for a bond isuse to pay for the purchase or improvement of lands acquired for the purposes therein authorized, and the amendment of 1919, supra, reveals an intention to make the act operative to the exclusion of the provisions of the Home Rule Act bearing upon the same subject. Such being the case, there would be no reason whatever for the act of 1937, supra, unless it was intended to apply to cities of the fourth class.
For the aforesaid reasons, I vote to affirm the judgment below.
Mr. Justice Heher and Judges Wells and McLean authorize me to say that they agree with the views expressed herein.
For affirmance — HEHER, BURLING, WELLS, McLEAN, JJ. 4.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, BODINE, COLIE, WACHENFELD, DILL, FREUND, McGEEHAN, JJ. 8. *Page 328