72 A.2d 399 (N.J.Super.Ch. 1950), No. C--1176, The Mayor, The City Council, The Board of Public Works of The City of Elizabeth v. The New Jersey Turnpike Authority

Docket Nº:C--1176
Citation:72 A.2d 399, 7 N.J.Super. 540
Opinion Judge:Freund, J.S.C.
Party Name:THE MAYOR, THE CITY COUNCIL, THE BOARD OF PUBLIC WORKS OF THE CITY OF ELIZABETH, AND THE CITY OF ELIZABETH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS, v. THE NEW JERSEY TURNPIKE AUTHORITY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, AND THE STATE OF NEW JERSEY, DEFENDANTS
Attorney:Mr. Louis P. Longobardi (Mr. Raymond A. Leahy) for the plaintiffs. Mr. Augustus C. Studer, Jr., and Mr. George W. C. McCarter for the defendant The New Jersey Turnpike Authority.
Case Date:March 24, 1950
Court:Superior Court of New Jersey
 
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Page 399

72 A.2d 399 (N.J.Super.Ch. 1950)

7 N.J.Super. 540

THE MAYOR, THE CITY COUNCIL, THE BOARD OF PUBLIC WORKS OF THE CITY OF ELIZABETH, AND THE CITY OF ELIZABETH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS,

v.

THE NEW JERSEY TURNPIKE AUTHORITY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, AND THE STATE OF NEW JERSEY, DEFENDANTS

No. No. C--1176

Superior Court of New Jersey, Chancery Division

March 24, 1950

Mr. Louis P. Longobardi (Mr. Raymond A. Leahy) for the plaintiffs.

Mr. Augustus C. Studer, Jr., and Mr. George W. C. McCarter for the defendant The New Jersey Turnpike Authority.

OPINION

Freund, J.S.C.

[7 N.J.Super. 542] The City of Elizabeth seeks to restrain the New Jersey Turnpike Authority from proceeding with the construction of a contemplated turnpike along the socalled Fourth Street Route through said municipality, allegedly in violation of the plaintiff's constitutional rights. The defendant has moved for dismissal of the complaint on

Page 400

the ground that it fails to set forth a cause of action upon which relief can be granted. Rule 3:12-2(5).

In the complaint, the plaintiff included the State of New Jersey as a party defendant, but it has subsequently been dismissed. The complaint also charged that the turnpike as a toll-paying highway is in violation of the provisions of Title 23, United States Code Annotated, Section 1 et seq., and in particular Section 9 thereof, that "all highways constructed or re-constructed under the provisions of this chapter shall be free from tolls of all kinds." However, at the argument of this motion the plaintiff abandoned the point and now confines its complaint to the charge "that the selection of the Fourth Street Route is in violation of the provisions of the Act creating the New Jersey Turnpike Authority" and "that any construction of the Act that would give to the Authority the power to select the Fourth Street Route by a mere conclusion on its part would render that part of the Act unconstitutional [7 N.J.Super. 543] and void." Both parties submitted affidavits on the motion.

The constitutional validity of the New Jersey Turnpike Authority Act (P.L. 1948, c. 454, as amended and supplemented by P.L. 1949, cc. 40 and 41; R.S. 27:23-1 et seq.), with the exception of Section 17, not pertinent here, was recently determined by the Supreme Court in New Jersey Turnpike Authority v. Parsons, 3 N.J. 235 (1949). By the foregoing enactments, the New Jersey Turnpike Authority was "constituted an instrumentality exercising public and essential governmental functions, and the exercise by the Authority of the powers conferred by this act in the construction, operation and maintenance of turnpike projects shall be deemed and held to be an essential governmental function of the State." Section 3. The Turnpike Authority was created "to facilitate vehicular traffic and remove the present handicaps and hazards on the congested highways in the State, and to provide for the construction of modern express highways," and was "authorized and empowered to construct, maintain, repair and operate turnpike projects * * * at such locations as shall be established by law." Section 1. Among other powers it was expressly authorized by Section 5 "(k) to designate the locations and establish, limit and control such points of ingress to and egress from each turnpike project as may be necessary or desirable in the judgment of the Authority to insure the proper operation and maintenance of such project, and * * * (o) to do all acts and things necessary or convenient to carry out the powers expressly granted in this act." Section 19 declares "This act, being necessary for the welfare of the State and its inhabitants, shall be liberally construed to effect the purposes thereof."

By Chapter 41 of the Laws of 1949 and amended by Chapter 2 of the Laws of 1950, the Turnpike Authority was ...

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