We hold the view that a municipality may lawfully publicize, at public expense, what its governing body conceives to be sound reasons, relating to the essential local *Page 181 welfare, for the rejection by the people of the state of proposed amendments to the constitution.
The power to take reasonable measures to conserve their own vital interests is incident to the general powers of local government conferred upon the municipalities. The right of advocacy and defense of the communal welfare in the state legislative forum has long been accorded general recognition.Smathers v. Board of Chosen Freeholders of Atlantic,113 N.J.L. 281; In re Carrick, 127 Id. 316; Farrel v. Townof Derby, 58 Conn. 234; 20 Atl. Rep. 460; In re Taxpayersand Freeholders of Plattsburgh, 27 App. Div. 353;50 N Y Supp. 356; Bachelder v. Epping, 28 N.H. 354; Meehan v.Parsons, 271 Ill. 546; 111 N.E. Rep. 529; Denison v.Crawford County, 48 Iowa 211; Arthur v. Dayton, 4 Ky.Law Rep. 831, (1883); Powell v. City and County of SanFrancisco, 62 Cal.App. R. (2d) 291; 144 Pac. Rep. (2d) 617. If it is the local government's legitimate province to challenge judicially, at public expense, the constitutionality of legislative enactments which adversely affect the local interest, and this cannot but be conceded, its right of opposition within reasonable bounds before the event cannot be doubted. And, afortiori, a municipal government may invoke reasonable measures to apprise the state electorate, for its information and guidance in the referendum election, of the probable impact of the adoption of suggested alterations in the state's organic law upon the local economy. For obvious reasons, changes in the fundamental law are of much more serious import than transitory legislative enactments. And it does not matter that the municipality is merely a creature of the legislature; that does not serve to deprive the collective unit of the right of self-advancement and self-protection by reasonable and legitimate means fairly incident to its general powers and not in opposition to specific legislative directions. Such is of the very essence of the power of local self-government. Its complete subordination to the state, subject to constitutional restraints, does not render it incapable of serving the common interest in local affairs, within the allotted sphere of action. As stated inFarrel v. Town of Derby, supra, "The right of self-defense is well nigh universal," and the *Page 182 municipalities "are not exceptions to the rule." After all, the municipality is a body politic composed of the individual inhabitants within its corporate confines for the regulation of the internal affairs of the community, and the service of the civil government of the state; and it would be illogical to hold that a right which concededly resides in the individual cannot be exercised in the aggregate through those elected to administer the local government, where demanded by the common interest. Would a submission of the city's cause to a state-wide audience by radio be beyond its corporate powers? We think not. Yet the written word affords opportunity for analysis and thoughtful consideration and, therefore, more intelligent understanding of the issues, which ordinarily are not free from complexity when they involve changes in the state's organic law.
While a municipal corporation is a government of enumerated powers, acting by a delegated authority, it possesses also such rights as arise by necessary or fair implication, or are incident to the powers expressly conferred, and such as are essential to the declared objects and purposes of the municipality. N.J. GoodHumor, Inc., v. Bradley Beach, 124 N.J.L. 162. Vide R.S. 40:48-2, 40:72-3. Jersey City is in the latter statutory category. By that section, it is invested with "all the powers necessary for its government not in conflict with the laws applicable to all municipalities or the provisions of the constitution * * *." Generally, a public purpose has for its objective the promotion, inter alia, of the "general welfare, security, prosperity, and contentment of all the inhabitants or residents" of the municipality; and the determination of what constitutes a public purpose is primarily a legislative function, subject to review and correction by the courts only when the action taken is arbitrary or capricious. 37 Am. Jur. 734, 735. To uphold the resolution under review is not, of course, to imply judicial concurrence in the character and fitness of the advertisements or the strictures and criticisms therein contained. The question before us is the existence vel non of the power represented by the resolution, not the propriety of the things done in its exercise. All the reasons assigned for error in the Supreme Court are *Page 183 directed to the validity of the resolution itself, i.e., the existence of the power, and not to the manner of its exercise. Neither the content nor tone of the advertisements is determinative of the validity of the resolution; nor does the validity of the exercise of the power conferred by the resolution depend upon conformance with judicial concepts of sound and wise policy or fair and temperate advocacy. Extravagance of statement does not serve to invalidate the exercise of the power. Censorship is not of the judicial function. Where the action taken is not clearly capricious, the local legislative body is accountable only to its constituency.
As with other powers, the exercise of the particular power is circumscribed by reason. Here, the subject-matter involved fundamental principle and policy deemed vital to the community-at-large; and we entertain no doubt that the challenged action was a legitimate local function.
We are thus brought to a consideration of the question of whether the expenditures so made are fairly comprehended in the appropriation of the then current year for "Railroad Tax Litigation."
The city urges that the point is moot, since full payment of the advertising bills has been made, and the writ would be "inefficacious and valueless," and was therefore properly dismissed. The cases of Jersey City v. Traphagen, 53 N.J.L. 434; Hoboken v. City of Jersey City, 68 Id. 607; Parker v. Point Pleasant, 11 N.J. Mis. R. 535, and Weed v.Township Committee of Hillside, 85 Atl. Rep. 329, are cited, among others.
One-half of the expense of the advertisements in question was incurred before the first application for a certiorari, and the entire expense had been incurred and most of the advertisements published when the second application was made. The writ was allowed "without stay;" and thus it did not operate as asupersedeas. It is the general rule that even a contract ultravires for failure of an appropriation or other act made a condition precedent by statute may be ratified by performance of the condition essential to a valid agreement in the first instance, e.g., the making of the required appropriation.Gutta Percha and Rubber Manufacturing Co. v. *Page 184 Village of Ogalalla, 40 Nebr. 775; 59 N.W. Rep. 513; 44C.J. 1146. Of course, a contract wholly and fundamentally beyond the power of the municipality, as distinguished from a corporate power conditioned as to exercise, is utterly void, and therefore incapable of ratification. But it is also a rule of general acceptance (indeed, a modern text writer cites no case contrariwise) that an ultra vires contract made by a municipality which has been fully performed by both parties is no longer assailable by either party. 38 Am. Jur. 183. This principle has been applied to cases where, as here, the municipal corporation is empowered to enter into the particular contract, but the contract is ultra vires in the restricted or secondary sense that the power has been defectively or irregularly exercised, and the municipality has received the benefits of the contract and paid the stipulated price. State, ex rel. Morris v. Clerk, 116 Minn. 500; 134 N.W. Rep. 129; 39 L.R.A. (N.S.) 43; Bell v. Kirkland, 102 Minn. 213; 113 N.W.Rep. 271; 12 L.R.A. (N.S.) 793; 120 Am. St. Rep. 621. But the decision need not turn on this point.
We are of opinion that the appropriation here fairly comprehends the expenditures made. Generally, municipal ordinances are construed by the same rules which apply in the interpretation of statutes. Ordinances are to receive a reasonable construction and application. The aim of judicial construction is to discover the sense in which the terms were employed by the legislative body. The words "Railroad Tax Litigation" are to be given their ordinary acceptation and significance. The natural import of the words employed in the enactment, according to their common use, when applied to the subject-matter of the act, is ordinarily considered as expressing the intention of the lawmaking body. Bayonne Textile Corp. v.American, c., Silk Workers, 116 N.J. Eq. 146, 160. We are convinced that, by this construction, the words "Railroad Tax Litigation" are given the sense and meaning intended by the local legislative body. The term "litigation" has a broad significance in common usage. It is defined thus: "Act or process of litigating; a suit at law; a judicial contest; also, figuratively, dispute; discussion." Webster's New InternationalDictionary (2d ed.). *Page 185
At the time of the enactment of the appropriation measure, the controversy respecting railroad taxes, accrued and to accrue, had taken a wide range, which included also the question of the tax formula that would approximate justice between the state and the railroads. There was then pending litigation involving the validity of chapter 291 of the laws of 1941 (Pamph. L., p. 788), as amended by chapter 169 of the laws of 1942 (Pamph. L.,p. 513); and it was the position of the city that the rate of $3 for each $100 of valuation therein fixed contravened the state constitutional mandate (article IV, section VII, paragraph 12) that property shall be assessed for taxes "under general laws and by uniform rules, according to its true value," and that the adoption of the tax formula embodied in the suggested revision of that constitutional precept would "destroy the legal basis for the attack then pending" upon these statutes. This issue has since been determined by the Supreme Court. City of Jersey City v. State Board of Tax Appeals, 133 N.J.L. 202. An appeal from the judgment therein is now pending in this court. We consider that these questions are all so interrelated in subject-matter as to be embraced within the general head of "Railroad Tax Litigation." In popular acceptance and meaning, this legend was designed to cover expenditures deemed essential to the proper presentation of the issues and the city's cause, not only in judicial tribunals but in the forum of public opinion. That such was the conception of the purpose of the appropriation in the popular mind is reasonably clear; and thus the requirement of the statutory provision for appropriation of funds for public purposes was satisfied. R.S. 40:2-12, 40:2-29, 40:50-6. And we are not required to give the term "litigation" its strict literal meaning. It has a figurative, analogical sense in common usage which covers the expenditures under consideration; and we are aware of no reason why it should not have that significance here. We do not think that the local legislative body had in mind the restricted meaning of that term, nor that it was so understood by the public. Such nicety of distinction is not ordinarily to be found either in the expression or the understanding of local legislative enactments. *Page 186