Hartley v. Board of Elections.

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two-year term was contained in this legislation, it was repealed by implication by the reconstruction method of selection contained in the act of 1911, which eliminated the civil service method.

It is observed that in the later legislation the legislature is dealing only with the method of selection and its incidents, and it becomes manifest that no inconsistency between the two laws can thereby be predicated, based upon the length of tenure of the appointees, which does not constitute a necessary feature of the method of selection. The defendant's contention, therefore, becomes a non-sequitur. King v. Smith, 91 N. J. L. 648. In no section of the later act is there any reference contained to the length of tenure, and the inference therefore becomes reasonable, logical and legal, that if the legislature intended to disturb the existing tenure when dealing with the subject of the appointment and qualification of the appointees, they would have expressly provided for it. Expressio unius exclusio alterius. This inference is emphasized by the fact that by the fifth section of the act the filling of vacancies is provided for, but no mention is made of the tenure of appointees. And in the seventh section provision is made for the imposition of a penalty upon a delinquent appointee "at any time within the term of two years," clearly indicating a legislative recognition of the tenure.

In any event, implied repealers are not favored as a method of judicial construction, and the omission or commission in the legislative purpose must be reasonably clear to warrant it Hotel Registry Corporation v. Stafford, 70 N. J. L. 528; Chew Heong v. United States, 112 U. S. 536.

In the present situation every reasonable intendment and logical inference bespeaks to the contrary.

The result is the writ of certiorari will go, and owing to the public exigency incident to the situation, the writ will operate as a supersedeas.

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Heston v. Atlantic City.

ALFRED M. HESTON ET AL., PROSECUTORS, v. CITY OF ATLANTIC CITY ET AL., RESPONDENTS.

Argued February 18, 1919-Decided August 6, 1919.

1. The requirements of the statute of 1911 (Pamph. L.. p. 471), providing that a full and complete examination of the books and accounts of the city shall be made by competent accountants and the result published, are mandatory and imperative in character, and the absence of a specific appropriation for that purpose cannot operate to defeat its execution.

2. The work of examining and auditing the books of a city, in pursuance of the requirements of Pamph. L. 1911, p. 471, is not work or the furnishing of material or labor which must be awarded to the lowest responsible bidder, after public advertisement under the provisions of Pamph. L. 1912, ch. 342.

On writ of certiorari removing resolution.

Before Justices PARKER and MINTURN.

For the prosecutors, Clarence L. Cole.

For the respondents, Harry B. Wootton and Joseph B. Perskie.

The opinion of the court was delivered by

MINTURN, J. The commissioners of Atlantic City, on July 18th, 1918, adopted a resolution selecting as auditors of the books of that city for the year beginning September 1st, 1917, Edward P. Moxey & Company at a compensation of $1.175, payable at the completion of the audit. The resolution was adopted in pursuance of the requirement of the statute of 1911 (Pamph. L., p. 471), which required the board at the end of each year to "cause a full and complete examination of all the books and accounts of the city to be made by competent accountants; and shall publish the result of this examination in the manner above provided for the publication of monthly expenditures." The prosecutor, an unsuccessful

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candidate for the work, on the 18th of September, 1918, obtained a rule to show cause why a writ of certiorari should not issue to test the legality of the resolution upon two grounds-first, that there was no funds on hand and no appropriation from which payment for the service could be made; secondly, that the contract price was in excess of $500, and that bids were not advertised for in compliance with the requirement of the act of 1912. Pamph. L., p. 593. Omitting consideration of the objection of laches, which has been interposed (but which is not without merit in public transactions of this character, where the proceedings are public and the service contracted for the result of a legislative mandate, eliminating municipal discretion as to its necessity), we think that since there was on hand in the contingent fund sufficient moneys to pay the accountants at the completion of their services, that fund could be utilized in the absence of a specific appropriation for the purpose, in liquidating the contract indebtedness resulting from the passage of the resolution in question. A contingent fund in its inception was the method of setting aside income received during the fiscal year and not otherwise appropriated, and retaining it until specifically appropriated at the beginning of the next fiscal year. The act of 1917, chapter 192 (Pamph. L., p. 548), entitled "An act concerning municipal and county finances," while it gave the fund legislative recognition in municipal appropriations, operated simply to impose a limitation upon the quantum of the fund when utilized as a fiscal subdivision for municipal and county appropriations.

We are not concerned, however, in this controversy with the modus operandi by which the fund was replenished. It is enough to know that it existed and was sufficiently replete to meet the requirements of this contract when the compensation was payable. Nor is it necessary to determine that such a fund may be utilized for every obligation not otherwise provided for. Such a contention presents obvious difficulties, not the least of which is the barrier erected by the statute of 1876. hereinafter referred to. It is enough for the purposes of this

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Heston v. Atlantic City.

discussion to determine that since the legislative requirement of publication of the financial status of the city was mandatory and imperative in character, the absence of a specific appropriation could not operate to defeat its execution, otherwise a well-defined legislative policy presumably devised for the information of the citizen, as a basis for intelligent consideration, in the direction of municipal affairs could be effectually thwarted and subverted by studied inactivity, by a body possessing the peculiar threefold function of appropriating, legislating and disbursing under a legislative conception of concentrated responsibility.

It is also to be observed that the passage of the resolution required no immediate financial outlay, but that payment was to be "on the completion of such audit," which in fact happened after September 1st, 1918, at which time a specific appropriation for the purpose was in existence, and the necessity of resorting to the contingent fund was thereby obviated.

The cases of Atlantic City Water Works v. Read, 50 N. J. L. 665, and State v. Halstead, 41 Id. 552, relied upon by the prosecutor, may be differentiated by observing that in the case at bar the duty to audit and publish the result was mandatory, and that the local body was simply a legislative instrumentality in its execution, while in the cases cited the work undertaken by the municipal body in each instance was entirely of a discretionary character, and in nowise imperative as a delegated legislative duty; the one involved a plain duty and absolute compliance to enforce which mandamus would lie; the other involved only the untrammeled exercise of free will and discretion, in nowise enforceable as a public duty by judicial process. Warmolts v. Keegan, 69 Id. 186.

It is finally contended that the expenditure being in excess of $500 was prohibited by chapter 342, laws of 1912, unless awarded to the lowest responsible bidder, after public advertisement.

The act provides that a contract involving such an expenditure "for the doing of any work, or for the furnishing of any material or labor." unless so awarded, shall be invalid.

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The contention thus resolves itself into the inquiry whether services of the character in question are comprehended by the legislative designation "work," "materials" and "labor."

In Delker v. Freeholders, 90 N. J. L. 473, the Chancellor, speaking for the Court of Errors and Appeals, held that under the act of 1909, page 92, official advertising in a newspaper was not comprehended in the legislative provision, requiring the furnishing of labor, work or materials to the county upon advertisement to the lowest bidder.

The learned Chancellor refers to Shaw v. Trenton, 49 N. J. L. 638, where the charter of Trenton required that all contracts for work or materials should be given to the lowest bidder, as a result of which the same court held that the supplying of rubber hose to the fire department was not an “improvement" within the legislative designation.

It is unnecessary, however, to invoke the reasoning of either case as ratio decidendi here, for, as we apprehend the services to be rendered under this resolution were of a character involving peculiar professional education and experience, which invariably have differentiated their possessor in the industrial, economic and social environment of life, from one possessed only of the capacity to furnish work and labor as those terms are commonly accepted. Such services are comparable in character with the special services of counsel, the employment of a physician, or like expert service in the discharge of municipal administrative requirements; and while, generically, all such persons are engaged in work and labor, the ordinary mind, untrammeled by the niceties of phraseology and etymology, would find it difficult, even in the present liberal segregations of economic life, to change the acquired meaning that custom and time have accorded these words.

In this light it was that the legislature in 1912 dealt with the subject; and we are primarily engaged in a search for the legislative intent as evinced by the language employed to indicate it. In such an inquiry we must assume that the legislature intended to employ language in its ordinary popular and usual acceptance. Gibbons v. Ogden, 8 N. J. L. 288;