(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in that opinion. )
Argued February 2, 1998 -- Decided April 9, 1998
PER CURIAM
This appeal involves the validity of a payroll tax ordinance adopted by the City of Jersey City (“City”) on
December 6, 1995.
On December 6, 1995, the Municipal Council of the City adopted Jersey City Ordinance 95-117
(“Ordinance”). That Ordinance, known as the “Jersey City Payroll Tax of 1995,” imposed a 1" tax on the payroll
of every employer in the City. The Ordinance was enacted pursuant to enabling legislation set forth in N.J.S.A.
40:48C-14 to -19. That legislation also contained a sunset provision, which prohibited the City from collecting the tax
for services performed on or after January 1, 1996. The Ordinance was approved by the Mayor the next day, on
December 7, 1995. The Ordinance provided that it would become effective “at the time and in the manner as
provided by law.”
On December 26, 1995, pursuant to N.J.S.A. 40:69A-185 of the Faulkner Act, a Committee of Petitioners
submitted to the Jersey City Clerk (“Clerk”) referendum petitions protesting the Ordinance. The Act then requires
the municipal clerk to determine, within twenty days, whether the petition is signed by a sufficient number of
qualified voters and to certify the results of his or her examination to the municipal council at its next regular
meeting. Pursuant to that statute, on January 16, 1996, the Clerk certified that the petitions protesting the
Ordinance were insufficient , as they were short by 869 valid signatures.
Instead of amending the petitions, the Committee withdrew them because of the costs that an election would
impose on the City and on the supporters of the referendum. In addition, the Committee believed that the
referendum was moot at that point due to the expiration of the enabling legislation and to the failure of the
legislature to extend it.
Concluding that the Ordinance could be enforced because the Committee had withdrawn its petition, the
City began to collect the tax for the last quarter of the 1995 fiscal year. Thereafter, on March 25, 1996, certain
employers in Jersey City filed a verified complaint in the Superior Court seeking an order that the Ordinance was
invalid. The employers then successfully moved for summary judgment, arguing that the Ordinance did not take
effect until after January 26, 1996, the date the petition was withdrawn, and was accordingly unenforceable under the
sunset provision of the enabling legislation. In opposition, the City had maintained that the Ordinance was intended
to tax the payrolls only in the fourth quarter of 1995, and thus was authorized by statute. It had further argued that
the number of signatures on the petitions was insufficient to nullify the Ordinance, and that enforcement of the
Ordinance was only suspended while the petitions were pending.
The City appealed. The Appellate Division determined that the Ordinance was poorly drafted because it stated that the payroll tax would be imposed on “services performed on or after the first month of the calendar quarter in which this ordinance takes effect,” instead of stating that the payroll tax would be imposed on services performed for the quarter in which the ordinance was passed. The Appellate Division found that, although the referendum did not change the date on which the Ordinance was passed, it delayed the date on which the Ordinance took effect. The panel found that, since the Ordinance took effect in January 1996, by the terms of that Ordinance, the taxes were imposed for the first quarter of 1996 rather than for the fourth quarter of 1995. However, because the City's statutory authority to impose payroll taxes expired as of January 1, 1996, the Appellate Division found the
Ordinance to be void and affirmed the judgment of the trial court, which judgment included an award of prejudgment
interest against the City.
The Supreme Court granted the City's petition for certification.
HELD: The judgment of the Appellate Division, with the exception of the award of prejudgment interest against the
City, is affirmed substantially for the reasons expressed in the opinion below. By its terms, the Ordinance took
effect on a date after the City's statutory authority to impose the tax had expired, and the Ordinance is, therefore,
void and unenforceable. However, no aspect of the City's conduct in imposing and collecting the taxes warrants the
imposition of prejudgment interest.
Judgment of the Appellate Division is AFFIRMED as MODIFIED.
JUSTICE GARIBALDI filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and
JUSTICE COLEMAN join. Justice Garibaldi believed that the insufficient petition suspended the collection of the
tax, but did not change the effective date of the Ordinance. As a result, she found that the Ordinance took effect in
December 1995, prior to the expiration of the City's statutory authority. Thus, Justice Garibaldi believed that the
Ordinance should be upheld.
JUSTICES HANDLER, POLLOCK, O'HERN and STEIN join in this opinion. JUSTICE GARIBALDI has
filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE COLEMAN join.
SUPREME COURT OF NEW JERSEY
A-
90 September Term 1997
HUDSON COUNTY CHAMBER OF COMMERCE,
HUDSON COUNTY DISTRICT COUNCIL OF
LABORERS PENSION FUND, SQUARE PLUS
OPERATING CORP., CUNNINGHAM
GRAPHICS, INC., and MARGULIES,
WIND, HERRINGTON & KNOPF, A
Professional Corporation,
Plaintiffs-Respondents,
v.
CITY OF JERSEY CITY,
Defendant-Appellant.
Argued February 2, 1998 -- Decided April 9, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at N.J. Super. (1997).
Dennis J. Drasco argued the cause for
appellant (Lum, Danzis, Drasco, Positan &
Kleinberg, attorneys; Mr. Drasco and Colin M.
Danzis, of counsel and on the briefs).
Robert E. Margulies argued the cause for
respondents (Margulies, Wind, Herrington &
Knopf, attorneys; Jack Jay Wind, on the
briefs).
William John Kearns, Jr., argued the cause
for amici curiae New Jersey State League of
Municipalities and New Jersey Institute of
Municipal Attorneys (Kearns, Vassallo, Guest
& Kearns, attorneys).
PER CURIAM
We affirm the judgment of the Appellate Division substantially for the reasons set forth in that court's opinion.
___ N.J. Super. ___ (1997). However, we conclude that
prejudgment interest should not have been awarded. Because
Jersey City is a governmental entity and interest is not provided
for by statute, "particular circumspection" in the granting of
prejudgment interest is required, and "a showing of overriding
and compelling equitable reasons" is essential to justify the
award. Board of Educ. v. Levitt,
197 N.J. Super. 239, 244 (App.
Div. 1984). In our view, no aspect of Jersey City's conduct in
imposing and collecting the payroll taxes at issue warrants the
imposition of prejudgment interest.
JUSTICES HANDLER, POLLOCK, O'HERN and STEIN join in this
opinion. JUSTICE GARIBALDI has filed a separate dissenting
opinion in which CHIEF JUSTICE PORITZ and JUSTICE COLEMAN join.
SUPREME COURT OF NEW JERSEY
A-
90 September Term 1997
HUDSON COUNTY CHAMBER OF COMMERCE,
HUDSON COUNTY DISTRICT COUNSEL OF
LABORERS PENSION FUND, SQUARE PLUS
OPERATING CORP., CUNNINGHAM
GRAPHICS, INC., and MARGULIES,
WIND, HERRINGTON & KNOPF, a
professional corporation,
Plaintiffs-Respondents,
v.
CITY OF JERSEY CITY,
Defendant-Appellant.
GARIBALDI, J., dissenting in part, concurring in part.
This appeal involves the validity of a payroll tax ordinance
adopted by the City of Jersey City ("City") on December 6, 1995.
More specifically, this case questions whether, under the
referendum provisions of the Faulkner Act, N.J.S.A. 40:69A-184 to
-196, a filed but insufficient referendum petition, which was
never cured and ultimately withdrawn, delayed the effective date
of that ordinance.
The majority affirms the Appellate Division and finds that
the ordinance did not take effect until January 1996, after its
statutory authorization had expired. See N.J.S.A. 40:48C-19
(1994), amended by N.J.S.A. 40:48C-19 (1996). Therefore, the
majority holds the ordinance to be void and unenforceable. I
believe that the insufficient petition suspended the collection
of the tax, but did not change the effective date of the
ordinance. As a result, I find that the ordinance took effect in
December 1995, prior to the expiration of its statutory
authority, and thus, the ordinance should be upheld.
On December 26, 1995, a Committee of Petitioners, pursuant
to N.J.S.A. 40:69A-185 of the Faulkner Act, submitted to the
Jersey City Clerk ("Clerk") 525 referendum petitions protesting
the Ordinance. To invoke the power of referendum, the Faulkner
Act provides that a petition must be signed by "a number of the
legal voters of the municipality equal in number to at least 15" of the total votes cast in the municipality at the last election
at which members of the General Assembly were elected" and must
be filed with the municipal clerk within twenty days of the final
passage and approval of the ordinance. N.J.S.A. 40:69A-185. The
Act then requires the municipal clerk to determine, within twenty
more days, whether the petition is signed by a sufficient number
of qualified voters and to certify the results of his or her
examination to the municipal council at its next regular meeting.
N.J.S.A. 40:60A-187. Pursuant to that statute, on January 16,
1996, the Clerk certified that the petitions protesting the
Ordinance were insufficient and he notified the Committee of the
same. The Committee was short by 869 valid signatures.
N.J.S.A. 40:69A-188 provides that an insufficient referendum
petition may be amended by filing a supplementary petition within
ten days after a notification of insufficiency has been served.
Rather than amending the insufficient petition in this case,
however, the Committee filed a letter with the Clerk withdrawing
the petition. That letter, dated January 26, 1996, stated:
The undersigned Committee of the Petitioners,
pursuant to N.J.S.A. 40:69A-191 do hereby
withdraw the Petitions previously submitted
requesting a Referendum on City Ordinance 95-117 known as the Jersey City Payroll Tax of
1995.
Peter Murphy, a member of the Committee of Petitioners, asserted
that the petition was withdrawn because of the large costs that
an election would impose on the City and on the supporters of the
referendum petition. Murphy also stated that the Committee
withdrew the petition because of its belief that the referendum
"was moot at that point due to the expiration of the enabling
legislation and failure of the state legislature to extend same."
Concluding that the Ordinance could be enforced because the
Committee had withdrawn its petition, the Chief Financial Officer
of the City sent to all affected employers a 1995 tax return and
payroll tax booklet to be used with regard to the payment of the
payroll tax for the fourth quarter of 1995. The letter
accompanying the booklet and return, dated March 1, 1996, stated
that the employers' payroll tax payment was due on or before
April 1, 1996. The City also made available to employers an
application to extend the time to file a return. The City then
began to collect the tax for the last quarter of the 1995 fiscal
year.
On March 25, 1996, plaintiffs, employers in Jersey City,
filed a verified complaint in lieu of prerogative writs in the
Superior Court, Law Division seeking an order that the Ordinance
was invalid. Plaintiffs successfully moved for summary judgment
declaring that the Ordinance did not take effect until after
January 26, 1996, the date the petition was withdrawn, and was
accordingly unenforceable under the sunset provision. See
N.J.S.A. 40:48C-19 (1994), amended by N.J.S.A. 40:48C-19 (1996).
The City appealed, and the Appellate Division affirmed the
trial court's ruling that the Ordinance was invalid and
unenforceable. We granted the City's petition for certification,
151 N.J. 75 (1997). The majority affirms the Appellate Division
judgment for the reasons expressed in the opinion of the
Appellate Division, reported at ___ N.J. Super. ___ (1993). I
respectfully dissent.
Therefore, Jersey City could succeed in imposing the payroll tax only if the Ordinance applied to services performed in the fourth quarter of 1995. Specifically, the Ordinance provides that it applies to:
[A]ll payrolls related to services performed
on or after the first day of the first month
of the calender quarter in which this
ordinance takes effect; provided, however,
that no tax shall be imposed with respect to
services performed in any calendar quarter
prior to that in which this Article was
adopted.
Because the Ordinance states that the tax shall be imposed on all services completed in the quarter in which the Ordinance "takes effect," whether Jersey City succeeded in imposing that tax depends on the effective date of the Ordinance. If the Ordinance became effective in December 1995, then the tax will survive under the sunset provision because it will apply to all services performed in the last quarter of the year, the quarter in which the Ordinance took effect. See N.J.S.A. 40:48C-19 (1994), amended by N.J.S.A. 40:48C-19 (1996).
Ordinance itself provides that it "shall take effect at the time
and in the manner as provided by law." Ordinance, supra, § 29-8(d). N.J.S.A. 40:69A-185 provides that no ordinance "shall take
effect before twenty days from the time of its final passage and
its approval by the mayor where such approval is required." See
also N.J.S.A. 40:69A-181(b) ("No ordinance other than the local
budget ordinance shall take effect less than twenty days after
its final passage by council and approval by the mayor where such
approval is required, unless the council shall adopt a resolution
declaring an emergency and at least two-thirds of all the members
of the council vote in favor of such a resolution"). In this
case, the Ordinance was passed by the council on December 6,
1995, and was approved by the mayor on December 7, 1995.
Therefore, the Ordinance officially took effect on December 27,
1995, twenty days after that approval and passage.
Act, a petition signed by the requisite number of voters must be
submitted to the municipal clerk within the twenty-day period
between the ordinance's final passage and approval and its
original effective date. N.J.S.A. 40:69A-185. Within twenty
days of the filing of such a petition, the municipal clerk must
then determine whether the petition is signed by a sufficient
number of qualified voters. N.J.S.A. 40:69A-187. If a
notification of insufficiency is issued, the Act states that the
parties shall be given an additional ten days in which to file an
amended supplementary petition. N.J.S.A. 40:69A-188. Finally,
the Act provides another five days after the filing of such an
amendment for the clerk to again examine the petition and
determine whether a sufficient number of voters have signed it.
N.J.S.A. 40:69A-188.
The Appellate Division and the majority argue that the
filing of the referendum petition in this case on December 26,
1995, one day before the twenty-day period concluded, prevented
the Ordinance from taking effect until January 1996. They
maintain that the referendum provisions of the Faulkner Act
mandate that the effective date of an ordinance be postponed
until the referendum process is terminated, regardless of whether
that termination occurs by submission of the ordinance to the
voters or by an earlier withdrawal of or failure to amend a
petition. N.J.S.A. 40:69A-185, -187, -188. I disagree with that
conclusion.
I believe that, until the referendum process is completed
and an ordinance is passed by the voters, the referendum
provisions of the Faulkner Act do not change the effective date
of an ordinance. Rather, the time frames stated in the Act serve
only to suspend municipal action or activity under that
ordinance. Therefore, if a petition is deemed insufficient and
no further action is taken, or if a petition is withdrawn at any
time before the conclusion of the referendum process, the
effective date of the protested ordinance, having been
temporarily suspended, will be retroactively valid to its
original effective date, twenty days from final approval and
passage.
The language of the statute supports my conclusion that the referendum process merely suspends the effective date of an ordinance. One of the central principles of statutory construction requires a court to examine the plain meaning of a statute, reading the words and phrases of that statute according to their ordinary or general meaning. State v. Hoffman, 149 N.J. 564, 578, 580 (1997); In re Schuman, 114 N.J. 14, 25 (1989). If the Legislature had intended to delay the effective date of an ordinance beyond the twenty-day period, it could have stated that an ordinance will not or shall not take effect until the proceedings are completed. It did not. None of the Faulkner Act provisions explicitly state that the effective date of an
ordinance shall be changed. Nor do the sections outlining the
time frames in which the elements of the referendum process are
to be completed make any reference to the operative date of an
ordinance at all. Instead, the statutory language merely defers
the imposition of an ordinance until the conclusion of the
referendum proceedings.
Specifically, N.J.S.A. 40:69A-185 provides:
If within twenty days after such final
passage and approval of such ordinance a
petition protesting against the passage of
such ordinance shall be filed with the
municipal clerk and if the petition shall be
signed by [the required] number of the legal
voters of the municipality ..., the ordinance
shall be suspended from taking effect until
proceedings are had as herein provided.
(emphasis added).
Under its ordinary meaning, to "take effect" means to "become
operative" or to "go into operation." Black's Law Dictionary
1304 (5th ed. 1979). "Suspend" is defined as "[t]o interrupt; to
cause to cease for a time; to postpone; to stay, delay, or
hinder; to discontinue temporarily, but with an expectation or
purpose of resumption." Black's, supra, at 1297. Therefore, the
language of N.J.S.A. 40:69A-185 simply means that a municipality
cannot take action to enforce an ordinance until the municipal
referendum proceedings are concluded. It does not mean that,
before the process is finished, the effective date of an
ordinance can be displaced.
N.J.S.A. 40:69A-189, which refers to the filing of an
insufficient petition as well as the withdrawal of a sufficient
petition before the completion of the process, also uses the word
"suspend." That section states:
Upon the filing of a referendum petition with
the municipal clerk, the ordinance shall be
suspended until ten days following a finding
by the municipal clerk that the petition is
insufficient or, if an amended petition be
filed, until five days thereafter; or, if the
petition or amended petition be found to be
sufficient, until it be withdrawn by the
Committee of the Petitioners or until repeal
of the ordinance by vote of the council or
approval or disapproval of the ordinance by
the voters.
[N.J.S.A. 40:69A-189 (emphasis added).]
The use of the word "suspend" in the Faulkner Act serves to
prevent the enforcement of an ordinance, but does not render
invalid its legal operation date before the referendum process
has been completed. Therefore, under N.J.S.A. 40:69A-189, if the
referendum process is not taken to its final conclusion or if the
procedure is terminated at any point before passage of an
ordinance by the voters, the municipality will be able to enforce
the ordinance as of its original effective date. The effective
date of an ordinance should be moved only if the voters decide to
pass that ordinance at a referendum election; otherwise, it
should not be shifted or changed.
Finally, the language of the Faulkner Act outlines the
possible outcomes that can result from a petitioner's actions.
If an amended petition is insufficient after the clerk's second
review, the clerk shall notify the Committee of Petitioners and
"no further action shall be had on such insufficient petition."
N.J.S.A. 40:69A-188 (emphasis added). Furthermore, if a
sufficient petition is withdrawn before submission of an
ordinance to the voters, that petition shall "cease to have any
force or effect." N.J.S.A. 40:69A-191. That latter provision
explicitly states:
If within 20 days of the submission of a
certified petition by the municipal clerk the
council shall fail to ... repeal an ordinance
as requested by a referendum petition, the
municipal clerk shall submit the ordinance to
the voters unless, within 10 days after final
adverse action by the council or after the
expiration of the time allowed for such
action, ... a paper signed by at least four
of five members of the Committee of
Petitioners shall be filed with the municipal
clerk requesting that the petition be
withdrawn. Upon the filing of such a
request, the original petition shall cease to
have any force or effect.
[N.J.S.A. 40:69A-191 (emphasis added).]
Therefore, if an insufficient and unamended petition is withdrawn
before that final step, it follows that such a petition will be
void ab initio and will relate back to the original effective
date of the ordinance.
My finding that the Faulkner Act merely suspends activity under an ordinance until the referendum process is completed also comports with that statute's legislative intent. Principles of statutory construction dictate that statutes are to be read "sensibly rather than literally, with the purpose and reason for the legislation controlling." Reisman v. Great Am. Recreation, Inc., 266 N.J. Super. 87, 96 (App. Div. 1993), certif. denied,
134 N.J. 560 (1993). "The primary task for the Court is to
'effectuate the legislative intent in light of the language used
and the objects sought to be achieved.'" Merin v. Maglaki,
126 N.J. 430, 435 (1992) (citation omitted). Most importantly,
statutes should not be construed so as to lead to unreasonable,
anomalous, or absurd results. Reisman, supra, 266 N.J. Super. at
96.
The purpose of the Faulkner Act was to provide New Jersey's
municipalities with various optional methods of organizing their
local governments. Keuerleber v. Township of Pemberton,
260 N.J.
Super. 541, 544 (App. Div. 1992), certif. denied,
133 N.J. 434
(1993). Because the Act intended to confer upon municipalities
"the greatest possible powers of local self-government and home
rule consistent with the Constitution of this State," ibid., the
referendum process is one of the cornerstones of that Act. Meant
to "encourage public participation in municipal affairs in the
face of normal apathy and lethargy in such matters," the
referendum process gives voters in Faulkner Act communities a
veto power over municipal ordinances. Narciso v. Worrick,
176 N.J. Super. 315, 319 (App. Div. 1980); see also Township of
Sparta v. Spillane,
125 N.J. Super. 519, 523 (App. Div. 1973)
(declaring referendum process to be one of "two useful
instruments of plebiscite power"), certif. denied,
64 N.J. 493
(1974); Maese v. Snowden,
148 N.J. Super. 7, 11 (App. Div. 1977)
(Faulkner Act provides "direct means of controlling proposed or
already enacted municipal legislation").
Before an ordinance will be put through that scrutiny,
however, the petitioners must comply with the specific
requirements of the Act. Only if the petitioners complete those
requirements will they be able to have the ordinance repealed by
the council or, if the council fails to do so, have the right to
vote on the ordinance themselves, N.J.S.A. 40:69A-191, and only
if they pass the ordinance at a referendum election will its
effective date be changed. As a result, the legislative intent
of the Faulkner Act will be frustrated if those who do not comply
with the full requirements of the Act, either by failing to amend
an insufficient petition or withdrawing any petition, are also
able to change the effective date of or to defeat a validly-passed municipal ordinance. Until the referendum process is
completed, the Faulkner Act intends to suspend the enforcement,
but not delay the effective date, of a municipal ordinance. To
hold otherwise will lead to absurd and unreasonable results. See
Reisman, supra, 266 N.J. Super. at 96.
Allowing an invalid or withdrawn petition to change the
effective date of an ordinance might, in cases with expiring
statutory authorization such as this one, have the same impact as
if the voters acting under a validly required referendum had
voted against the ordinance. The Faulkner Act did not intend for
a validly enacted municipal ordinance to be rendered a nullity by
the submission of an invalid petition. The majority's opinion
would permit a petition with only one or a few signatures,
submitted in bad faith and with no intention of completing the
referendum process, to delay the effective date of an ordinance.
Such a result, allowing a few people to manipulate for their own
advantage a procedure that is supposed to benefit the majority,
is not only unreasonable but also against the Legislature's
intent. There is nothing to suggest the Legislature intended to
give invalid and withdrawn petitions the same effect as if the
referendum had been held and the voters had defeated the
Ordinance.
Finally, although the Faulkner Act is supposed to be
liberally construed to achieve its salutary purposes, "it was not
intended to be an unlimited and unqualified right." Cuprowski v.
City of Jersey City,
101 N.J. Super. 15, 27 (Law Div.), aff'd,
103 N.J. Super. 217 (App. Div.), certif. denied,
53 N.J. 80
(1968); see also Narciso, supra, 176 N.J. Super. at 319 (finding
that, although referendum provisions should be liberally
construed, they "cannot be applied literally in all cases"). The
right to seek a referendum under the Faulkner Act is a statutory
but not a constitutional right, Lawrence v. Schrof,
162 N.J.
Super. 375, 380 (Law Div. 1978); Smith v. Township of Livingston,
106 N.J. Super. 444, 453 (Ch. Div.), aff'd,
54 N.J. 525 (1969),
and was never intended to prevent the enactment of ordinances for
which a contrary legislative purpose may be discerned, State v.
East Shores, Inc.,
164 N.J. Super. 530, 536 (App. Div. 1979); In
re Certain Petitions for a Binding Referendum,
154 N.J. Super. 482, 485 (App. Div. 1977). The right to referendum under the
Faulkner Act does not encompass the right to change the effective
date of an ordinance by filing an insufficient petition that is
never amended and later withdrawn.
Despite the actions of the petitioners pursuant to the Faulkner Act, the effective date of the Ordinance remained December 27, 1995, twenty days after its final approval and passage. Because the petitioners withdrew their insufficient, unamended petition before the completion of the referendum process, they did not comply with the ultimate intentions of the Act. As a result, the efforts of the petitioners postponed the authority of the municipality to actually collect the payroll tax; however, once their petition was withdrawn, the municipality regained that authority, retroactive to the original effective date. Since the Ordinance officially took effect in December 1995, the Ordinance applied to all services performed in the last quarter of 1995 and was valid under the sunset provision. See N.J.S.A. 40:48C-19 (1994), amended by N.J.S.A. 40:48C-19 (1996). Therefore, the City should have been allowed to collect a payroll tax for the last quarter of that year.
Stores v. Township of Springfield,
83 N.J. 438, 447 (1980);
Hutton Park Gardens v. Town Council of W. Orange,
68 N.J. 543,
564 (1975). Even the New Jersey Constitution states that "any
law concerning municipal corporations . . . shall be liberally
construed in their favor." N.J. Const., art. IV, § 7, ¶ 11; see
also Whelan v. New Jersey Power & Light Co.,
45 N.J. 237, 251
(1965) ("We are enjoined by the Constitution . . . to interpret
statutes liberally in favor of the existence of local power to
deal with local needs."). Therefore, an ordinance may be
overturned only if it is arbitrary and unreasonable and "only by
proofs that preclude the possibility that there could have been
any set of facts known to the legislative body or which could
reasonably be assumed to have been known which would rationally
support a conclusion that the enactment is in the public
interest." Hutton Park, supra, 68 N.J. at 565; Quick Chek,
supra, 83 N.J. at 447;
In construing a municipal ordinance, the same rules of
guidance apply as in the interpretation of a statute. L.P.
Marron & Co. v. Township of Mahwah,
39 N.J. 74, 80 (1963). A
court must examine the language of the ordinance according to its
ordinary and general meaning, and then must focus on the
legislative purpose and intent. Hoffman, supra, 149 N.J. at 580;
L.P. Marron, supra, 39 N.J. at 80; AMN, Inc. v. Township of S.
Brunswick Rent Leveling Bd.,
93 N.J. 518, 525 (1983).
Furthermore, where the drafters of a statute or ordinance did not
consider or even contemplate a specific situation, a court should
interpret the enactment "'consonant with the intent of the
draftsman 'had he anticipated the situation at hand."" AMN,
Inc., supra, 93 N.J. at 525; Matlack v. Burlington County Bd. of
Chosen Freeholders,
194 N.J. Super. 359, 361 (App. Div.), certif.
denied,
99 N.J. 191 (1984). Finally, although ambiguous tax
statutes are generally to be construed in favor of the taxpayer
and against the State, that rule does not apply where the
language and legislative history of the provision are clear.
Fedders Fin. Corp. v. Director, Div. of Taxation,
96 N.J. 376,
385 (1984); see also Public Serv. Elec. & Gas Co. v. Township of
Woodbridge,
73 N.J. 474, 478 (1977) (stating that in the area of
construction of statutes, "particularly those having to do with
taxation," our sole guidepost is legislative intent.).
Under those principles, the majority should have given
deference to the Ordinance. By its plain language, the Ordinance
permitted the collection of a tax for the last quarter of 1995
and the Court should have strained to uphold such a finding.
Moreover, the municipal council must have intended to impose the
tax on that last quarter, because to hold otherwise would lead to
an absurd result. See Reisman, supra, 266 N.J. Super. at 96.
There is no valid reason why the council would have wanted to
pass an ordinance effective only in 1996 because, as a result of
the sunset provision, that ordinance would never have been able
to have been enforced. See N.J.S.A. 40:48C-19 (1994), amended by
N.J.S.A. 40:48C-19 (1996). In addition, the municipality mailed
to all employers a payroll tax booklet and instructions relating
to the last quarter of 1995, thus indicating that that was the
quarter for which it meant to impose the tax. Finally, even if
the council failed to anticipate that the sunset provision would
prevent the collection of a tax for the first quarter of 1996,
its probable intent had the council contemplated the full
situation would certainly have been to propose and enact a valid
ordinance. See AMN, Inc., supra, 93 N.J. at 525.
V.
I would reverse the judgment of the Appellate Division.
Chief Justice Poritz and Justice Coleman join in this
opinion.
NO. A-90 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
HUDSON COUNTY CHAMBER OF COMMERCE,
et al.,
Plaintiffs-Respondents,
v.
CITY OF JERSEY CITY,
Defendant-Appellant.
DECIDED April 9, 1998
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING/DISSENTING OPINION BY Justice Garibaldi
DISSENTING OPINION BY