Mayor, City Council, Bd. of Public Works of City of Elizabeth v. New Jersey Turnpike Authority, C--1176

Decision Date24 March 1950
Docket NumberNo. C--1176,C--1176
Citation72 A.2d 399,7 N.J.Super. 540
PartiesMAYOR, CITY COUNCIL, BOARD OF PUBLIC WORKS OF CITY OF ELIZATETH et al. v. NEW JERSEY TURNPIKE AUTHORITY et al.
CourtNew Jersey Superior Court

Louis P. Longobardi, Elizabeth (Raymond A. Leahy, Elizabeth), for plaintiffs.

Augustus C. Studer, Jr., and George W. C. McCarter, Newark, for New Jersey Turnpike Authority.

FREUND, J.S.C.

The City of Elizabeth seeks to restrain the New Jersey Turnpike Authority from proceeding with the construction of a contemplated turnpike along the so-called 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 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 and void.' Both parties submitted affidavits on the motion.

The constitutional validity of the New Jersey Turnpike Authority Act (P.L.1948, Ch. 454, as amended and supplemented by P.L.1949, CC. 40 and 41, R.S. 27:23--1 et seq., N.J.S.A.), 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, 69 A.2d 875 (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.' Sec. 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'. Sec. 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 'authorized to construct, maintain, repair and operate a turnpike project at the following location: Beginning at a point to be selected by the Authority at State Highway Route No. 6 approximately three miles westerly from the westerly end of George Washington Bridge, and thence in a general southerly direction through the counties of Bergen, Hudson or Passaic or both, Essex and Union to Middlesex county, and thence in a generally southerly and westerly direction through the counties of Middlesex, Monmouth or Mercer or both, Burlington, Camden, Gloucester and into the county of Salem to connection with a proposed new bridge across the Delaware river at or near Deepwater, Lower Penns Neck township, Salem county.' It is the practically universal pattern for legislative enactments so to authorize the construction of highways, delegating the determination of the exact location to the discretion of the State Highway Commission or other similar agency. R.S. 27:6--1, N.J.S.A. Here, the authority inherent in the Legislature was delegated to the New Jersey Turnpike Authority, a duly created governmental agency of the State. Certainly, it would not be feasible for the legislature in the statute to fix in minute detail the particular couse of every portion of a contemplated highway. The legislature is not staffed with highway engineers, surveyors and the other trained personnel who lay out highways. Customarily, legislatures fix the termini and only in general terms describe the course between. State Highway Commission v. City of Elizabeth, 102 N.J.Eq. 221, 140 A. 335 (Ch.1928), affirmed 103 N.J.Eq. 376, 143 A. 916 (E. & A.1928); Mowry v. Department of Public Works etc., 345 Ill. 121, 177 N.E. 753 (Sup.1931); Boyden v. Department of Public Works etc., 349 Ill. 363, 182 N.E. 379 (Sup.1932); Weber v. Department of Public Works etc., 360 Ill. 11, 195 N.E. 427 (Sup.1935); Smith v. State Highway Commission, 247 Ky. 816, 57 S.W.2d 1014 (Ct.App.1933).

Pursuant to the legislation by which it was created, the Turnpike Authority has made plans for the...

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16 cases
  • Town of Bloomfield v. New Jersey Highway Authority, A--114
    • United States
    • New Jersey Supreme Court
    • 25 d1 Abril d1 1955
    ...authorities are generally immune from 'municipal ordinances and other local regulations.' In Mayor, etc., Elizabeth v. New Jersey Turnpike Authority, 7 N.J.Super. 540, 72 A.2d 399 (Ch.Div.1950) the court readily rejected an attempt by Elizabeth to prevent construction of the Turnpike along ......
  • New Jersey Highway Authority v. Currie, A--184
    • United States
    • New Jersey Superior Court — Appellate Division
    • 6 d5 Maio d5 1955
    ...for the judgment of the Authority, which is the duly constituted legislative agent. Mayor, etc., of City of Elizabeth v. New Jersey Turnpike Authority,7 N.J.Super. 540, 72 A.2d 399 (Ch.Div.1950). As the Supreme Court held in Burnett v. Abbott, supra (14 N.J. 291, 102 A.2d 'The cases and aut......
  • Oklahoma Turnpike Authority, Application of, 34736
    • United States
    • Oklahoma Supreme Court
    • 21 d5 Julho d5 1950
    ...State ex rel. Kauer v. Diffenbacher, 153 Ohio St. 268, 91 N.E.2d 512; Mayor, City Council, Bd. of Public Works of City of Elizabeth v. New Jersey Turnpike Authority, 7 N.J.Super. 540, 72 A.2d 399. The provisions of this act delegating the power to function and perform under the act does not......
  • Scureman v. Judge
    • United States
    • Court of Chancery of Delaware
    • 30 d3 Setembro d3 1992
    ...of highways is (at least in the first instance) an administrative, not a judicial, function. See Mayor of Elizabeth v. New Jersey Turnpike Auth., 7 N.J.Super. 540, 72 A.2d 399, 401 (1950). The movants argue that if they prevail on this motion they would be entitled to petition the Departmen......
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