This is an appeal from the dismissal by the Supreme Court of a writ of certiorari issued on the application of appellant to review a resolution adopted by the governing body of Jersey City on October 3d 1944. The resolution under attack is set forth in the opinion of the Supreme Court, 132 N.J.L. 552.
The appellees contend that the writ was properly dismissed, since appellant has "no personal or property interest to be specially and immediately affected by the action complained of, and distinct from that of citizens and taxpayers generally" and consequently appellant was not a proper party to prosecutecertiorari. To support this contention, they cite Tallon v.City of Hoboken, 60 N.J.L. 212; Ford v. City of Bayonne,87 Id. 298, and Altschul v. Jersey City, 8 N.J. Mis. R.708. These cited cases have no application to the facts of this case. Where a municipal corporation, by action ultra vires or otherwise, embarks in a scheme which will result in the unlawful expenditure of public funds, any ordinary taxpayer may be admitted to prosecute a certiorari to review such action.Rehill v. East Newark and Jersey City, 73 N.J.L. 220;affirmed, 74 Id. 849.
The appellees further contend that the writ was properly dismissed, since the transactions directed by the resolution under review were completed and judgment on the writ could accomplish nothing. No charge is made that the prosecutor was in laches in challenging the resolution; the fact is that the prosecutor acted with the greatest diligence. The writ was allowed on November 1st, 1944, and served on appellees the same day. Payment for October advertisements amounting to $14,444.72 and for November advertisements amounting to $13,510.42 was made by Jersey City on November 6th, 1944, and further payments totaling $2,302.08 were made on November 21st and December 6th, 1944. There is no merit in this contention; to sanction it would be to permit offending public officials, by quick action in making payment in the face of a challenge to their right to do so, to raise a bar against one seeking to prevent the unlawful expenditure of public funds.
Two meritorious questions are involved in this appeal: *Page 187 first, did the city have power to expend public funds for the purpose indicated by the resolution; and second, if it had such power, were the expenditures legally chargeable to the budget item "railroad tax litigation."
As to the power of the municipality to expend the moneys, the question of such power was raised under very similar circumstances in In re Carrick (1941), 127 N.J.L. 316, and the decision therein was that the municipality has such power. The scope of the power of the municipality was set forth in that case as follows:
"The proposed legislation was thought to seriously affect the financial life of the city. Municipal officers have a broad discretion in promoting the welfare of their communities. * * * In this case a public question of local interest was before the legislature. The precise manner in which the local authority should present its views rests in the sound discretion of its officials. Courts cannot control the form of public expression."
Since in the Carrick case the application for the writ ofcertiorari was denied, it follows that the court found that there was no debatable question presented. The refusal of the Supreme Court in that case to grant certiorari prevented an appeal to this court (Staubach v. Cities Service Oil Co.,130 N.J.L. 157) and put the matter in controversy at final rest. Under these circumstances, municipal officials had a perfect right to rely on the language quoted above as giving them the breadth of power therein stated. The only differences between this case and the Carrick case are: (a) in the Carrick case it was railroad legislation which the city regarded as disadvantageous to the interests of its citizens, while in the instant case it was a proposed revision of the tax clause of the constitution as it affected railroad tax litigation which the city regarded as disadvantageous to the interests of its citizens; and (b) in the Carrick case many of the bills incurred had been paid before the writ issued, while here no bills were paid before the writ issued, but most of the bills were paid before return to the writ was made. I conclude that, under the broad grant of power in the Carrick case, the city had the power to expend public funds for the purpose indicated by the resolution. *Page 188
The statement of municipal power in the Carrick case is so broad that it may well be used as a shield by municipal officials against almost any attack on the exercise of a claimed municipal power. If this broad power is to be curtailed, it should be curtailed by the legislature. Even if this court desired to overrule the broad grant made by the Carrick case, the overruling could be effective only prospectively and would not affect the decision in this case (see Montana Horse Products Co. v. GreatNorthern Railway Co., 91 Mont. 194; 7 Pac. Rep. (2d) 919; affirmed in Great Northern Railway Co. v. Sunburst Oil andRefining Co., 287 U.S. 358).
If the power to expend public funds for the purpose indicated by the resolution is granted, the attack made upon the payment therefor from a budget item entitled "railroad tax litigation" must, in my opinion, fall. The objective of the Budget Act is to require municipal officials to give notice to the citizens of the specific purposes for which the municipal moneys are to be spent during the budget year. The Budget Act (R.S. 40:2-21, as amended Pamph. L. 1938, ch. 128) provides, "The budget * * * shall be itemized according to the respective objects and purposes for which appropriations are made * * *." In Mackay v.Belvidere, 101 N.J.L. 250, an appropriation in the budget entitled "preservation of life and property" was properly struck down because it was too general. The item "railroad tax litigation" is itemized in the best spirit of the Budget act requirements. "Litigation," which in itself is an itemization, is limited by "tax" and again by "railroad." Appellant argues that under this item of "railroad tax litigation" the Court should determine the objects and purposes for which expenditures may be made therefrom by applying to the word "litigation" the construction which this word has received in decisions of the courts construing it as it appears in the context of a statute or a constitution. If this contention of the appellant is correct, the expenditure in this case, which was thought by the governing body to be a preventer of litigation, cannot be approved. The true test is not what the word "litigation" would mean in a statute or constitution, but rather did the item as stated in the budget fairly inform the citizens that expenditures might be made thereunder for purposes germane *Page 189 to the label of the appropriation item. The items in the budget appear in tabular form. If the construction put upon a word when used in a statute or constitution is to be the measure of the meaning of a budget item, every municipal official will be in constant danger. Under the rule advocated by appellant, imagine the danger to the municipal officials if the word "office," "position" or "employment" is used in any budget item, because under such rule the meaning of the word would then be subjected to the finely spun technicalities which have been woven around these words by our decisions during the last sixty years construing these words in the statutes and the constitution. If such a rule were adopted, it would deter honest citizens from seeking public office in a municipal governing body, and honest officials in office would be subject to an ever-present threat of indictment, forfeiture of office and pecuniary liability. Such a construction would make the Budget Act an engine of oppression instead of the salutary piece of legislation it was intended to be. "Railroad tax litigation" as a budget item gives reasonable notice to the taxpayers and public of the municipality that moneys may be spent thereunder for any purpose germane to railroad tax litigation, provided the municipality has the power to make the expenditure; and this even though the expenditure may be antecedent to the actual litigation itself, or even though it may be incurred without the railroad tax litigation following.