I am unable to agree with the holding of the majority opinion that "a municipality may lawfully publicize, at public expense, what its governing body conceives to be sound reasons, relating to the essential local welfare, for the rejection by the people of the state of proposed amendments to the constitution."
A municipal corporation has been held by this court in N.J.Good Humor, Inc., v. Bradley Beach, 124 N.J.L. 162, to "possess only such rights and powers (a) as have been granted in express terms; (b) as arise by necessary or fair implication, or are incident to the powers expressly conferred, and (c) as are essential to the declared objects and purposes of the municipality — not merely convenient, but indispensable." *Page 190 The same case held that any reasonable or fair doubt of the existence of the asserted power is to be resolved against the municipality. In Jersey City v. Martin, 126 Id. 353, this court unanimously held that "a municipality is merely a political subdivision or department of the state. It is an agency created for the exercise, within the prescribed limits, of the governmental functions and powers of the state. It is but the creature of the state, and exists at its pleasure. As respects both its strictly governmental office and its municipal character for the conduct of local self-government, the legislature is the exclusive source of its authority; and its continued corporate existence, as well as the scope of its powers, depends upon its will." The majority opinion justifies the adoption of the resolution of the city commissioners on the theory that the right to pass the resolution was a necessary or fair implication incident to powers expressly conferred and essential to the declared objects and purposes of the municipality, and citesN.J. Good Humor, Inc., v. Bradley Beach, supra, for authority and also R.S. 40:48-2 and R.S. 40:72-3, which latter section provides that "Every municipality * * * shall have all the powers necessary for its government not in conflict with the laws applicable to all municipalities or the provisions of the constitution." The City of Jersey City argued in its brief before this court with reference to R.S. 40:72-3 that "this is an express grant by the legislature of plenary power for the exercise of proper governmental functions by the governing bodies of municipalities under the commission form of government." (Italics mine.) A reading of the majority opinion leads me to the conclusion that the court has adopted this argument, although not in so many words. The argument is untenable. It might be sound except for the fact that it neatly begs the question at issue by the unwarranted assumption that the advertising campaign authorized by the resolution under review constitutes a "proper governmental function." Whether or not it is a proper governmental function is the nub of the question at issue, and it is illogical to base an argument for the validity of the resolution upon a premise that it is valid when, in fact, that is the disputed question. *Page 191
The legislature has dealt with the subject of advertising by a municipality. See chapter 152 of the laws of 1917, now R.S. 40:48-1 (30), reading: "The governing body of every municipality may make, amend, repeal and enforce ordinances to: * * * 30. Appropriate funds for advertising the advantages of the municipality." The legislature has upon the single occasion when it spoke on the subject of municipal advertising, specifically limited the field to "the advantages of the municipality." In the face of that action, it seems altogether inconsistent to assert that the right to advertise may be spelled out of the provisions of R.S. 40:72-3. If the right already existed, why was it necessary to enact the 1917 statute, now R.S. 40:48-1 (30)?
There is a more fundamental reason why the asserted power may not be exercised by the municipality. The question of whether the people of the state should revise the constitution is a political question in the sense that it pertains to the policy or the administration of government. The question is one of state-wide importance, the decision of which is, under article 1, paragraph 2 of the state constitution, "inherent in the people." Being inherent in the people, it cannot be inherent in a political subdivision of the state, of which a municipality is one. The majority view seeks to justify the resolution of the city commissioners by analogy from the undoubted right of a municipality to spend public funds in presenting its viewpoint to the legislature. However, there is a vital difference between the nature of a legislature and "the people." In State v.Parkhurst, 9 N.J.L. 427 (at p. 443), Chief Justice Kirkpatrick clearly pointed out one way in which the difference between a legislature and the electorate is distinguished and it is equally, if not more, applicable to a municipality. He said that a constitution "according to the common acceptation of the word in these United States, * * * may be said to be an agreement of the people, in their individual capacities, reduced to writing, establishing and fixing certain principles for the government of themselves.
"Among these principles, one of the most important in all our constitutions, is to prescribe and limit the objects of legislative power. The people are sovereign, they are supreme in power. The legislature act(s) by delegated and circumscribed *Page 192 authority; circumscribed as to its objects, circumscribed as to its extent over those objects. Now to say that the legislature can alter or change such a constitution, that they can do away (with) that very principle which at the same time gives and limits their power, is in my view a perfect absurdity. It is making the creature greater than the creator. It is establishing despotism without limitation and without control." If it is beyond the power of the legislature to alter the constitution then it must necessarily be beyond the power of a municipality which is subservient to the legislature.
If the City of Jersey City has the right to expend money raised by taxation for the purpose of influencing the electorate of the State of New Jersey against voting for a revision of the state constitution because, in the judgment of the city commissioners, its adoption would be inimical to the interests of the municipality, then, in principle, it would be proper for the city to pass a resolution authorizing the expenditure of funds for a state-wide advertising campaign to defeat a candidate who was running for the office of Governor of the state and whose election would be inimical to the municipality.
The majority decision is "establishing despotism without limitation and without control" for if we follow to its logical conclusion the sweeping generalization first quoted in this dissent, then the governing body of a municipality, for what it conceives to be sound reasons, may publicize the electorate at public expense, with its reasons why it, the governing body, should be re-elected to office. I take it that no one would attempt to justify the legality of such an attempt at self-perpetuation by elective officers, and I could only wish that the majority opinion and pointed out where the line should be drawn beyond which a municipality may not go in attempting to influence the electorate of the state.
The right of a municipality to spend funds raised by taxation in order to influence voters in a state-wide referendum, runs counter to the American system of decentralization, in which the primary and vital idea is that local affairs shall be managed by local authorities and general affairs by the central authority.Cooley, Constitutional Limitations, ch. 8. It is on this theory that the constitution was amended to *Page 193 prohibit the legislature from regulating the internal affairs of towns and counties. Article 4, section 7, paragraph 11. The theory that local affairs shall be managed by local authorities, and general affairs only by the central authority is not a theory that works but one way, and there is an equal obligation upon the local authorities to refrain from injecting themselves into general affairs. Nor, in my opinion, is it permissible to argue that the adoption of a new constitution is a matter of local concern to a municipality. It is a matter of concern to the "people" who reside within the geographical limits of the municipality and it is the privilege of the "people," if they so desire, to take action in their capacity either as individuals or as an association of individuals.
There is an additional reason why the decision of the Supreme Court should be reversed. The resolution authorized that the expenses of this advertising campaign be charged "against Account No. 225, wherein appropriation has been made for railroad tax litigation."
The majority opinion holds that the words "railroad tax litigation" are to be given the sense and meaning intended by the local legislative body. With that statement I cannot agree. Our legislature has provided that "the budget * * * shall be itemized according to the respective objects and purposes for which appropriations are made * * *." One of the purposes sought to be achieved by the Budget Act was to give publicity to the items of the budget and to afford the public a better understanding of the financial condition and affairs of municipalities in which they are interested. Chamber of Commerce v. Essex County,96 N.J.L. 238; Mackey v. Mayor, c., of Belvidere, 101 Id.250. It is utterly immaterial what sense and meaning the local body may have had in mind when it used the words "railroad tax litigation." What is of importance is the actual meaning. The majority opinion says, I quote: "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.)." If this definition is meant to show that the word "litigation" encompasses "dispute" or "discussion," I think that it falls far short of the purpose, *Page 194 since the word is defined only in a figurative sense as including "dispute" or "discussion," and there is no authority that I know of which justifies using words in a municipal budget in a figurative sense. An exhaustive research has failed to disclose a single definition of the word "litigation" so broad as to cover what was done in this case.
The following are typical definitions of "litigation:"
"The act or process of litigating, or carrying on a law-suit in any forum, whether a court of law or otherwise." 13 Am. Eng.Encyc. of Law (1st ed.) 925.
"A contest in a court of justice, for the purpose of enforcing a right; a judicial contest, a judicial controversy; a suit at law." 38 C.J. 68 quoted in In re Loudenslager, 113 N.J. Eq. 418.
"A contest, authorized by law, in a court of justice, for the purpose of enforcing a right." Bouvier's Law Dictionary (14thed.), also Shumaker Longsdorf, Cyclopedic Law Dictionary.
"Services and activities of attorneys-at-law and others in appearing before the legislature and the committees thereof, and in otherwise combating a movement to create by constitutional amendment a new county, however commendable it may be in the county authorities to resist the subtraction from their county of territory necessary in the creation of the proposed new county, does not come within the definition of `litigation,' when that term is given its broadest possible legitimate signification."DeVaugn v. Booten, 146 Ga. 836; 92 S.E. Rep. 629.
See, also, 25 Words and Phrases, (Permanent Ed.) tit.,"Litigation," 402 to 405.
For the reasons stated above, I vote to reverse the judgment under appeal.
Justices Parker and Oliphant and Judge Freund desire to be recorded as concurring herein.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, DONGES, HEHER, PERSKIE, RAFFERTY, DILL, McGEEHAN, JJ. 8.
For reversal — PARKER, COLIE, OLIPHANT, FREUND, JJ. 4. *Page 195