U.S. Trust Co. of New York v. State

Citation353 A.2d 514,69 N.J. 253
PartiesUNITED STATES TRUST COMPANY OF NEW YORK, as Trustee for The Port Authority of New York and New Jersey Consolidated Bonds, Fortieth and Forty-First Series; on its own behalf and on behalf of all holders of Consolidated Bonds of The Port Authority of New York and New Jersey and all others similarly situated, Plaintiff-Appellant-Cross-Respondent, v. The STATE of New Jersey et al., Defendants-Respondents-Cross-Appellants. Daniel M. GABY, Plaintiff-Cross-Appellant, v. The PORT OF NEW YORK AUTHORITY et al., Defendants-Cross-Respondents, and United States Trust Company of New York, etc., Intervenor.
Decision Date25 February 1976
CourtUnited States State Supreme Court (New Jersey)

Robert B. Meyner, Newark, and Devereux Milburn, New York City, of the New York bar, for appellant-cross-respondent-intervenor U.S. Trust Co. (Meyner, Landis & Verdon, Newark, and Carter, Ledyard & Milburn and Hawkins, Delafield & Wood, New York City, of the New York bar, attorneys, Robert B. Meyner, Devereux Milburn, and Donald J. Robinson, New York City, of the New York bar, on the brief and of counsel).

Murray J. Laulicht, Newark, and Michael I. Sovern, New York City, of the New York bar, Special Sounsel to the Atty. Gen., for respondents-cross-appellants State of N.J., Brendan T. Byrne and William F. Hyland (William F. Hyland, Atty. Gen., attorney, Murray J. Laulicht, Newark, N.J., Michael I. Sovern and Harold Edgar, New York City, of the New York bar, Special Counsel to the Atty. Gen., on the brief).

Howard Stern, Paterson, for plaintiff-cross-appellant Daniel M. Gaby (Shavick, Stern, Schotz, Steiger & Croland, Paterson, attorneys, Howard Stern, Paterson, on the brief, Howard Stern and Theodore W. Kheel, New York City, of the New York bar and Battle, Fowler, Stokes & Kheel, New York City, of the New York bar, of counsel).

Francis A. Mulhern, Newark, for cross-respondent The Port Authority of New York and New Jersey and others (Francis A. Mulhern, Newark, attorney and on the brief, Patrick J. Falvey, New York City, of the New York bar, Joseph Lesser, New York City, of the New York bar, Isobel E. Muirhead, Arthur P. Berg, New York City, of the New York bar, and Vigdor D. Bernstein, New York City of counsel).

PER CURIAM.

The judgment is affirmed, substantially for the reasons set forth in the opinion of Judge Gelman, 134 N.J.Super. 124, 338 A.2d 833 (Law Div.1975). The observations which follow are occasioned by Justice Pashman's suggested remedy in the Gaby suit. 1

Whatever persuasive force might be accorded the argument that as a matter of policy the Port Authority should devote more of its energies and resources to the mass transit field, the fact remains that the remedy fashioned by our Brother is neither pressed for by Gaby on this appeal nor within the powers of this Court to direct and enforce.

Gaby's class action complaint for a declaratory judgment that the 1962 Covenant was unconstitutional asked for 'multifarious relief,' including a request that the Port Authority be directed 'to formulate and submit to the court a plan for the development of mass transit facilities within the Port District,' 134 N.J.Super. at 131, 338 A.2d at 837. However, the trial judge, having concluded in the United States Trust Co. suit that 'the repeal legislation was a reasonable and hence valid exercise of the states' police power which is not prohibited by the Contract Clause of either the Federal or the State Constitution,' Id. at 197, 338 A.2d at 874, found it unnecessary to reach the issue of the 1962 Covenant's asserted invalidity. He therefore dismissed In his brief filed in the Court after direct certification of his appeal, 68 N.J. 175, 343 A.2d 462 (1975), Gaby conceded his limited purpose in pursuing the appeal as being 'to preserve the issue of the constitutionality of the 1962 Covenant.' The point of this in turn was, as he put it, to furnish 'an alternative ground for affirming the decision below.' 2 Whatever issues may have been preserved by his appeal and whatever desire there may have been to present 'all the issues,' the fact remains that Gaby's brief raises and discusses only the validity of the Covenant in constitutional terms. No argument is made there for any special relief; and, understandably, the Port Authority has likewise not briefed the question at all in this Court. At oral argument the subject was adverted to only in a limited fashion.

Gaby's complaint, Id. at 198, 338 A.2d at 875, without discussing the requested relief of a direction for development of a mass transit plan, on which issue there was neither testimony nor argument at the trial level.

Ordinarily, we would have no occasion to decide an issue which, while portentous in itself, has become so remote and peripheral to the central thrust of this litigation. However, inasmuch as the minority opinion raises and discusses In extenso this question of considerable public significance, namely, the involvement of the Port Authority in mass transit and particularly the propriety of this Court ordering as a specific remedy the submission of a plan for development of mass transit facilities, we overlook whatever infirmities may exist in the record before us, compounded by the practical disadvantage of not having the views of the parties, and proceed to address the point.

The 1921 Compact between the States of New York and New Jersey, whereby the Port Authority was created, N.J.S.A. 32:1--4, envisioned the adoption of a Comprehensive Plan for the development of the port. N.J.S.A.

32:1--11. Direction was given to the Port Authority in the Plann itself 'to proceed with the development of the port of New York in accordance with said comprehensive plan * * *.' N.J.S.A. 32:1--33. That the Authority's involvement in transportation matters was contemplated is obvious from a reading of this and other portions of the Comprehensive Plan as well as of the Compact; but it requires a quantum leap to derive therefrom a mandate (as distinguished from the power) to develop a plan for a particular kind or method of transportation, to wit, mass transit. It is not without significance, for instance, that the legislature has provided that the Authority May make recommendations for the increase and improvement of transportation facilities, N.J.S.A. 32:1--13, which by definition includes railroads and any facility for the 'transportation or carriage of persons or property,' N.J.S.A. 32:1--23; but nowhere is it mandated that such recommendations be made. A mandate such as that contemplated by the minority opinion is not something to be inferred by the courts but rather is a singularly appropriate subject for specific legislative directive, conspicuously absent here. Cf. Del. Riv. & Bay Auth. v. N.J. Pub. Emp. Rel. Comm'n., 112 N.J.Super. 160, 165, 270 A.2d 704 (App.Div.1970), aff'd o.b., 58 N.J. 388, 277 A.2d 880 (1971).

If, then, the Authority is in the position of being empowered (as we acknowledge) rather than mandated to act in the area of mass transit, its exercise of that power becomes a matter of discretion and judgment. As is made abundantly clear by the voluminous record in this case, the trial court's opinion, and the concurring and partially dissenting opinion here, the Authority has more than once in recent years broached the question of whether it should pursue a policy of encouraging mass transit and has determined that it shall not. The remedy suggested in the minority opinion is designed to overrule that decision. As such it is in the nature of the former prerogative writ of Mandamus, now invocable under proceedings for relief in lieu of prerogative writs, Rule 4:69.

However, Mandamus will not lie if the duty to act is a discretionary one and the discretion has been exercised. As Justice Heher explained, in Switz v. Middletown Twp., 23 N.J. 580, 130 A.2d 15 (1957), Mandamus is 'a coercive process that commands the performance of a specific ministerial act or duty, or compels the exercise of a discretionary function, but does not seek to interfere with or control the mode and manner of its exercise or to influence or direct a particular result.' 23 N.J. at 587, 130 A.2d at 19. As we have sought to demonstrate, the circumstances before us do not at all invite or accommodate the remedy proposed. This is so because the Authority (whose function is clearly not ministerial) has in fact exercised its discretion, even though that exercise has resulted in the rejection of a policy favoring mass transportation. Being a judgment decision its wisdom may be open to dispute; but as to the propriety of this Court's refusal to intrude on the underlying policy determination, there can be no question in the circumstances before us. And this not as a response to some procedural deficiency but because of our respect for the fundamental substantive principle embodied in Mandamus.

Finally, we observe that in this particular area of bi-state operations, there is close and continuing supervision of the Port Authority by the other branches of government. Hence, the proposed remedy would not only tend to usurp the influence over the Authority vested in the Governors of the States of New York and New Jersey, but would also intrude upon the functions of the legislatures of the respective States, whose task it is in the final analysis to enact appropriate legislation and take such other action as may be required to remedy whatever deficiencies may exist with respect to mass transit.

Affirmed.

For affirmance: Justices MOUNTAIN, SULLIVAN and CLIFFORD and Judges CONFORD, CARTON and HALPERN--6.

Concurring in part and dissenting in part: Justice PASHMAN--1.

PASHMAN, J. (concurring in part and dissenting in part).

I INTRODUCTION TO GABY COMPLAINT

My Brothers today affirm a lower court decision which was the product of two separate and distinct actions consolidated for trial. United States Trust Co. v. State, 134 N.J.Super. 124, 338 A.2d 833 (Law Div. 1975). In...

To continue reading

Request your trial
15 cases
  • Closing of Jamesburg High School, School Dist. of Borough of Jamesburg, Middlesex County, Matter of
    • United States
    • United States State Supreme Court (New Jersey)
    • 25 Julio 1980
    ......Ramey, Jr., Deputy Atty. Gen., for respondent State Bd. of Ed. (John J. Degnan, Atty. Gen., attorney; Erminie L. Conley, ... pointed out, the statute is simply inapplicable to the situation before us. Nor indeed does any other section of the School Law specifically address ... See United States Trust Co. v. State, 69 N.J. 253, 257, 353 A.2d 514 (1976), rev'd on other ......
  • State v. Saunders
    • United States
    • United States State Supreme Court (New Jersey)
    • 13 Diciembre 1977
    ...... Both insisted they were driving home from New York City, where they had been visiting friends, when the two women attracted their attention by calling ... vehicle for addressing the questions which counsel for the respective parties would have us answer. It seems somehow incongruous to [381 A.2d 347] use the soaring phrases of Mr. Justice ... See Dresner v. Carrara, 69 N.J. 237, 243, 353 A.2d 505 (1976); cf. U.S. Trust Co. of N.Y. v. State, 69 N.J. 253, 257, 353 A.2d 514 (1976), rev'd on other grounds, 431 U.S. 1, 97 ......
  • Cold Indian Springs Corp. v. Ocean Tp.
    • United States
    • Superior Court of New Jersey
    • 21 Octubre 1977
    ...shown that an obligation is impaired. U. S. Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 1515, 52 L.Ed.2d 92 (1977) rev'g 69 N.J. 253, 353 A.2d 514 (1976) and 134 N.J.Super. 124, 338 A.2d 833 The lease between landlord and tenant contains an implied covenant that for the year of the ......
  • Frazier v. Liberty Mut. Ins. Co.
    • United States
    • Superior Court of New Jersey
    • 7 Abril 1977
    ...342 A.2d 529 (App.Div.1975); and U.S. Trust Co. of New York v. State, 134 N.J.Super. 124, 338 A.2d 833 (Law Div.1975), aff'd, 69 N.J. 253, 353 A.2d 514 (1976), app. dism. Gaby v. Port Authority of New York and New Jersey, 427 U.S. 901, 96 S.Ct. 3185, 49 L.Ed.2d 1195, prob. juris 427 U.S. 90......
  • Request a trial to view additional results
1 books & journal articles
  • United States Trust Co. v. New Jersey-state Promises and the Contract Clause: an Untimely Resurrection
    • United States
    • Seattle University School of Law Seattle University Law Review No. 1-03, March 1978
    • Invalid date
    ...under the terms of the 1962 covenant. United States Trust Co. v. State, 134 N.J. Super. 124, 169-70, 338 A.2d 833, 859 (1975), aff'd, 69 N.J. 253, 353 A.2d 514 (1976), reu'd, 431 U.S. 1 (1977). 13. 1972 N.J. Laws ch. 208, § 2 (codified at N.J. Stat. Ann. § 32:1-35.55 (West Cum. Supp. 1977-1......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT