Abbott v. Beth Israel Cemetery Ass'n of Woodbridge

• Citation: 13 N.J. 528,100 A.2d 532
• Decision Date: 16 November 1953
• Docket Number: No. A--19,A--19
• Parties: ABBOTT v. BETH ISRAEL CEMETERY ASS'N OF WOODBRIDGE et al.
• Court: New Jersey Supreme Court

Page 528

13 N.J. 528

100 A.2d 532

ABBOTT v. BETH ISRAEL CEMETERY ASS'N OF WOODBRIDGE et al.

No. A--19.

Supreme Court of New Jersey.

Argued Sept. 28, 1953.

Decided Nov. 16, 1953.

Arthur S. Lane, Trenton, for appellant (Minton, Dinsmore & Lane, Trenton, attorneys).

Russell E. Watson, New Brunswick, for respondent (Theodore D. Parsons, Atty. Gen. of the State of New Jersey, attorney; Morris M. Schnitzer, Newark, of counsel; H. Roemer McPhee and C. John Stroumtsos, New Brunswick, on the brief).

The opinion of the court was delivered by:

BURLING, J.

This is an appeal from an order of the Superior Court, Law Division, dated April 29, 1953, denying the motion of the Beth Israel Cemetery Association of Woodbridge, New Jersey (hereinafter called the defendant), a New Jersey corporation, for dismissal of the complaint of Ransford J. Abbott, State Highway Commissioner of the State of New Jersey, (hereinafter called the plaintiff), filed on January 12, 1953, under the Uniform Declaratory Judgments Law. N.J.S. 2A:16--50 et seq., N.J.S.A. The appeal was addressed to the Superior Court, Appellate Division, under Rule 4:2--2(a), as amended December 7, 1950 and January 1, 1953, now R.R. 2:2--3(a), but was certified on our own motion prior to hearing there.

The matters alleged in the complaint begin chronologically in 1947, when the plaintiff's predecessor as State Highway Commissioner of the State of New Jersey authorized the acquisition of certain lands of the defendant for the construction of a newly authorized highway, designated as 'Route 4 Parkway.' The authority for the construction of this parkway was L.1947, c. 328, N.J.S.A. 27:6--1 (effective June 20, 1947), which provided that 'The State Highway Commissioner shall, as soon as practicable, in accordance with the procedure set forth in article one, chapter seven, Title 27, of the Revised Statutes (N.J.S.A. 27:7--1 et seq.) add to the present State highway system' a route extending from the then existing Route 25 to the then existing Route 35, 'all in Woodbridge township, Middlesex county.' This new route (L.1947, c. 328, supra, sec. 3) was 'designated as a parkway, as defined in' L.1945, c. 83 (see N.J.S.A. 27:7A--1 et seq.), which gave to the State Highway Commissioner additional powers with respect to any highway so designated by the Legislature as a parkway. It is asserted in the plaintiff's brief that 'Route 4 Parkway' is now a portion of the highway known and designated as the 'Garden State Parkway.' The 'Garden State Parkway' was authorized by L.1952, c. 16, sec. 20 (N.J.S.A. 27:12B--20). The 1952 act provided that when the New Jersey Highway Authority (thereby created) 'shall undertake to construct any part of the project described in section twenty hereof or shall acquire any portion of said State highway route as part of such project, the jurisdiction and authority of the (State Highway) Department over such part shall cease * * *.' L.1952, c. 16, sec. 21 (N.J.S.A. 27:12B--21). No party to the present suit has asserted that the plaintiff is thereby disqualified to maintain the action, nor that the New Jersey Highway Authority is a necessary party nor were there any facts averred or submitted to the court from which inferences to that effect might be drawn. It is noted that L.1952, c. 16, sec. 23 (N.J.S.A. 27:12B--23) provides that said act 'shall be deemed to provide an additional and alternative method for the doing of the things authorized thereby, and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing.' We assume for the purposes of this appeal, without deciding the question (inasmuch as it has not been raised either on fact or on law), that the plaintiff's jurisdiction over the highway known as Route 4 Parkway subsists until title is acquired and the route is subsequently formally transferred to the jurisdiction and control of the New Jersey Highway Authority. However, see R.R. 4:38--3, formerly Rule 3:25--3.

The extent of the lands of the defendant required for the Route 4 Parkway was stated in the complaint to have been 'determined to be 28.48 acres, 20.70 acres of which are claimed by the defendant association to be eligible and authorized for cemetery use by virtue of Chapter 227, L.1941 (N.J.S.A. 8:3--4.2), and the certificate filed on or about August 10, 1945, with the Clerk of the Township of Woodbridge.'

The plaintiff (and his predecessor in office) were unable to acquire the said 20.70 acres of the defendant's lands by agreement. The complaint herein further avers that in July 1951 the plaintiff instituted condemnation proceedings (under R.S. 27:7--22, N.J.S.A. and R.S. 20:1--1 et seq., N.J.S.A.), that condemnation commissioners were appointed on October 28, 1951 and that the hearings before the commissioners, and the time for the filing of their report, have been postponed from time to time.

The complaint asserted that:

'It is essential that the above outlined controversies as to the constitutionality of Chapter 227, L.1941, and as to the validity of the defendant Association's attempted compliance with the requirements of Chapter 227, L.1941, be finally determined in advance of the hearing before Condemnation Commissioners so that the Commissioners may know whether the 20.70 acres in question are to be valued as ordinary lands or as lands authorized and eligible for cemetery use. The Commissioners lack lawful jurisdiction to decide these controversies. The statutory function of the Commissioners, as prescribed in R.S. 20:1--9, is limited to 'viewing and examining the land or other property and making a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the petitioner for the land or other property and damage aforesaid, as of the date of the filing of the petition and order thereon.' The Commissioners lack lawful jurisdiction to decide the constitutionality of a statute. The Commissioners equally lack lawful jurisdiction to decide the validity of an attempted compliance with the requirements of a statute. These questions, because they are beyond the lawful authority and jurisdiction of the Commissioners, must therefore be decided independently in a court of law.'

The plaintiff sought judgment declaring that the lands and premises of the defendant association, comprising 20.70 acres and described in paragraph 12 of the complaint, are neither eligible nor authorized for cemetery use, in that:

(A) L.1941, c. 227, is unconstitutional special legislation null, void and of no effect, contravening the following provisions of the New Jersey and Federal Constitutions:

'(a) The legislature shall not pass private, local or special laws * * * Granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever.' N.J.Const.1844, Art. IV, Sec. VII, par. 11; N.J.Const.1947, Art. IV, Sec. VII, par. 9, clause 8.

'(b) The legislature shall pass no special act conferring corporate powers'. N.J.Const.1844, Art. IV, Sec. VII, par. 11; N.J.Const.1947, Art. IV, Sec. VII, par. 9.

'(c) No general law shall embrace any provision of a private, special or local character.' N.J.Const.1844, Art. IV, Sec. VII, par. 4; N.J.Const.1947, Art. IV, Sec. VII, par. 7.

'(d) No private, special, or local bill shall be passed, unless public notice of the intention to apply therefor, and of the general object thereof, shall have been previously given.' N.J.Const.1844, Art. IV, Sec. VII, par. 9; N.J.Const.1947, Art. IV, Sec. VII, par. 8.

'(e) nor shall any State * * * deny to any person within its jurisdiction the equal protection of the laws.' U.S.Const., Fourteenth Amendment.

(B) The certificates and descriptive maps filed by the defendant association with the Clerk of the Township of Woodbridge on or about August 10, 1945 and January 2, 1946, respectively, are null and void and of no effect because all of the lands described and included therein were not, as required by L.1941, c. 227, acquired by the defendant association from the township in which the association is situate, namely the Township of Woodbridge.

(C) The certificates and descriptive maps filed by the defendant association with the Clerk of the Township of Woodbridge on or about August 10, 1945 and January 2, 1946, respectively, are null and void and of no effect because all of the lands described and included therein were not, as required by L.1941, c. 227, acquired by the defendant association at public sale.

(D) The certificates and descriptive maps filed by the defendant association with the Clerk of the Township of Woodbridge an or about August 10, 1945 and January 2, 1946, respectively, are null and void and of no effect because the lands described and included in such certificates and descriptive maps unlawfully exceed the maximum limitation of 125 acres imposed by L.1941, c. 227.

The defendant on March 2, 1953, having filed no answer, moved for an order of dismissal of the complaint upon the grounds that (1) the trial court lacked jurisdiction over the subject matter, and (2) the plaintiff failed to state a claim upon which relief can be granted. On April 29, 1953 the trial court denied the defendant's motion without prejudice to the defendant's right to renew the motion after trial. The defendant appealed to the Superior Court, Appellate Division, under Rule 4:2--2(a) as amended, supra. Prior to hearing there certification was allowed as hereinabove noted.

The questions involved on this appeal include: (a) Has the Superior Court jurisdiction over the subject matter in this action? (b) Has the plaintiff the status to maintain this action? (c) Is the plaintiff afforded an adequate remedy in the condemnation proceeding instituted in 1951 and therefore barred from seeking relief by way of declaratory judgment? (d) Is the plaintiff estopped by laches from asserting (1) the unconstitutionality of...