Bergen County Sewer Authority v. Borough of Little Ferry

• Citation: 5 N.J. 548,76 A.2d 680
• Decision Date: 20 November 1950
• Docket Number: No. A--26,A--26
• Parties: BERGEN COUNTY SEWER AUTHORITY v. BOROUGH OF LITTLE FERRY.
• Court: United States State Supreme Court (New Jersey)

Page 548

5 N.J. 548

76 A.2d 680

BERGEN COUNTY SEWER AUTHORITY v. BOROUGH OF LITTLE FERRY.

No. A--26.

Supreme Court of New Jersey.

Argued Oct. 23, 1950.

Decided Nov. 20, 1950.

Alfred W. Kiefer, Hackensack, argued the cause for the appellant.

Walter H. Jones, Hackensack, argued the cause for the respondent.

The opinion of the court was delivered by

ACKERSON, J.

The Borough of Little Ferry (hereinafter referred to as the 'Borough') appeals from a judgment of the Appellate Division of the Superior Court affirming an order of a judge of the Law Division appointing commissioners in a condemnation proceeding instituted by the Bergen County Sewer Authority pursuant to R.S. 40:36A--36, N.J.S.A., and R.S. 20:1--1 et seq., N.J.S.A. It will be noted that the order was thus reviewed by a direct appeal to the Appellate Division rather than by a separate proceeding in lieu of the prerogative writ of Certiorari in the Law Division of the Superior Court.

The record before us discloses the following pertinent facts:

In September 1949, the Bergen County Sewer Authority (hereinafter referred to as the 'Authority'), a body corporate and politic, created under R.S. 40:36A--1 et seq., N.J.S.A., presented a verified petition to a judge of the Law Division of the Superior Court for the appointment of commissioners to fix the compensation to be paid by the Authority for certain described land situate in and owned by the Borough of Little Ferry, pursuant to the provisions of the Eminent Domain Act, R.S. 20:1--1 et seq., N.J.S.A. The petition alleges that the Authority possesses the power to condemn land by virtue of R.S. 40:36A--36 et seq., N.J.S.A., and that the acquisition by it of title to the described land is necessary in order for the Authority to accomplish the purposes for which it was created. An order assigning the time and place for hearing on the appointment of commissioners thereupon issued and notice thereof was given to the Borough. The matter was heard on the petition and an order appointing three commissioners to examine and appraise the land as prescribed by the Eminent Domain Act was entered by the Law Division judge in December, 1949.

The Appellate Division in affirming the order appointing the condemnation commissioners upheld the constitutionality of the act under which the Authority was created contrary to the Borough's contention on the appeal. At the same time it sustained the Borough's right to review the order by direct appeal to the Appellate Division under Rule 3:81--7, rather than by a separate proceeding in lieu of the writ of Certiorari in the Law Division of the Superior Court under Rule 3:81--2 which the Authority contended was the exclusive procedure available to the Borough for such review.

Since this latter holding concerns the appropriate jurisdiction to entertain the initial review of the order in question, we turn immediately to its consideration. The Eminent Domain Act R.S. 20:1--1 et seq., N.J.S.A., refers the appointment of condemnation commissioners to 'one of the justices of the supreme court or to a judge of the circuit court * * *' (now judges of the new superior court, R.S. 1:1--22, N.J.S.A.) The right of eminent domain is an inseparable attribute of sovereignty--an inherent power founded in the primary duty of government to serve the common need and advance the general welfare and its exercise is essentially a legislative and not a judicial function. Hence the judicial officer designated to appoint the commissioners who fix the compensation to be paid for the expropriation of private property acts as a mere legislative agent in furtherance of the legislative will upon the ascertainment of certain facts according to the standard laid down in the statute which is a properly delegated legislative function. It is not in essence the exercise of judicial authority within the intendment of Article III of our present Constitution pertaining to the division of governmental powers. The statutory jurisdiction is not conferred upon the courts as such but upon the individual judges thereof, Designatio personae, who act in exercising it solely in the capacity of legislative agents exercising a delegated authority. Ryan v. Housing Authority...