Curtis & Hill Gravel & Sand Co. v. State Highway Comm'n

• Citation: 111 A. 16
• Decision Date: 23 April 1920
• Docket Number: No. 47-194.,47-194.
• Parties: CURTIS & HILL GRAVEL & SAND CO. v. STATE HIGHWAY COMMISSION et al.
• Court: New Jersey Court of Chancery

111 A. 16

CURTIS & HILL GRAVEL & SAND CO.

v. STATE HIGHWAY COMMISSION et al.

No. 47-194.

Court of Chancery of New Jersey.

April 23, 1920.

(Syllabus by the Court.)

Bill by the Curtis & Hill Gravel & Sand Company against the State Highway Commission and others to impose a lien claim. On motion to strike out complaint. Decree advised, dismissing the bill.

McCarter & English, of Newark, for complainant.

Thomas F. McCran, Atty. Gen., and Francis H. McGee, of Trenton, for defendants State and State Highway Commission.

Harris & Harris, of Camden, for defendants Eisenberg and Mixner.

BUCHANAN, V. C. The bill is filed by the complainant, under the provisions of the "Municipal Mechanic's Lien Law (Revision of 1918)," being P. L. p. 1041, as a subcontractor who furnished materials used in the construction of one of the sections of the state highway system; such materials being furnished by complainant to defendant Eisenberg, who was himself a subcontractor furnishing labor and material under a contract with defendant Mixner, who was the main contractor, actually constructing the road, under contract between himself and the state highway commission. Complainant, not having received payment for the materials furnished, filed a lien claim with the state highway commission, and now sues to enforce his lien claim and to procure payment thereof out of the moneys due or to become due from the state highway commission to defendant Mixner.

The motion to dismiss is joined in by all the defendants, and the grounds assigned are the alleged lack of jurisdiction of this court to entertain the bill; defendant's contention being that the contract set forth in the bill is made with the state itself, or the state highway commission, and in either event is not a contract with a municipality, and hence not such a contract as is covered by the statute, and complainant is therefore not entitled to file the bill.

It was, and must needs be, conceded that complainant's right to bring the bill in this court is to be found, if anywhere, only in the provisions of the statute referred to. The only question is whether the party with whom Mixner's main contract was made— i. e. the state highway commission—comes within the classification specified in the act. The lien is given by section 1 of the act, under certain conditions, to—

"any person who as laborer * * * or subcontractor, shall hereafter, in pursuance of or conformity with the terms of any contract for any public improvement made between any person or corporation and any county, city, town, township, public commission, public board or other municipality in this state authorized by law to make contracts for the making of any public improvement, perform any labor or furnish any material toward the performance or completion of any such contract."

Admittedly the contract between Mixner and the state highway commission (which contract will be hereafter designated herein as "the contract"), is for a public improvement and the state highway commission had legal authority to make it. Defendant's argument however is substantially as follows:

(I) The state highway commission is not a municipality, either (A) by strict definition, or (B) by broad definition, for (1) It has no powers of local government, (2) It is not a corporation, either (a) by express enactment, or (b) by necessary implication from powers granted.

(II) Even if it be a municipality, it is not a municipality of the kind contemplated by the statute: (A) It is not a city, town, township, or county. (B) The title of the act is limited to those or similar municipalities. (C) The body of the act must also be construed to be likewise limited: (1) Because otherwise the act would be unconstitutional. (D) The state highway commission is not similar to city, county, town, or township: (1) A vital dissimilarity is that a suit against it is in effect a suit against the state itself. (2) Statutory authority for a suit against the state must be clear and unambiguous.

It must be conceded that the state highway commission does not fall within the strict definition of municipal corporations. Dillon, Mun. Corp. (5th Ed.) Vol. 1, §§ 18, 31, 32, says:

"Sec. 18. Municipal corporations are institutions designed for the local government of towns and cities; or, more accurately, towns and cities, with their inhabitants, are, for purposes of subordinate local administration, invested with a corporate character."

"Sec. 31. A municipal corporation, in its strict and proper sense, is the body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purposes of local government thereof. Municipal corporations as they exist in this country are bodies politic and corporate of the general character above described, established by law, partly as an agency of the state to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town, or district which is incorporated.

"Sec. 32. We may therefore define a municipal corporation in its historical and strict sense to be the incorporation, by the authority of the government, of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper."

McQuillin, Mun. Corp. vol. 1, § 107, says:

"In the English law, under the Municipal Corporations Act, 1882, 'municipal corporation' means 'the body corporate constituted by the incorporation of the inhabitants of a borough.' In England, as in this country, it is the inhabitants who are incorporated, and not the officers or the council or governing legislative body through whom they act.

"In American law a municipal corporation may be described to be a legal institution, or body politic and corporate, established by public law, or sovereign power, evidenced by a charter, with defined limits and a population, a corporate name, and perpetual succession, primarily to regulate the local or internal affairs of the territory or district incorporated by officers selected by the corporations, and secondarily to share in the civil government of the state in the particular locality. The characteristic feature beyond all others is the inherent right of local self-government."

Bouvier (Rawle's 3d. Rev.) p. 2269, gives the following definitions:

"A public corporation, created by government for political purposes, and having subordinate and local powers of legislation; e. g., a county, town, city, etc. 2 Kent, 275; Ang. & A. Corp. 9, 29; Bonaparte v. R. Co., Baldw. 222, Fed. Cas. No. 1,617. An incorporation of persons, inhabitants of a particular place, or connected with a particular district, enabling them to conduct its local civil government. Glover, Mun. Corp. 1."

But the name is frequently used with very much broader signification. Quoting again from Dillon (volume 1, § 32):

"The phrase 'municipal corporation' is used with us in general in the strict and proper sense just mentioned; but sometimes it is used in a broader sense, that includes also public or quasi corporations, the principal purpose of whose creation is as an instrumentality of the state, and not for the regulation of the local and special affairs of a compact community."

And McQuillin (volume 1, p. 256), quotes the following from Fairlie on Municipal Administration:

"In English and American law a municipality is any subordinate public authority created by the central government and vested with the legal rights of a corporation. The term applies to the local authorities in cities, villages, counties, special authorities, such as school and park boards, and even to incorporated townships as in Massachusetts. In this sense, municipal administration would include the whole field of local government."

It is not necessary to refer to decisions in other states (cf. Words and Phrases, First and Second Series, titles Municipal, Municipal Corporation, Municipality) to substantiate the soundness of the doctrine that the term as used in legislative enactments is not limited to the strict original meaning. Not only are there numerous adjudications of our own courts in that behalf (some of which will be hereinafter alluded to), but it has been specifically held by this court that in the statute (P. L. 1892, p. 369) preceding the present Municipal Mecbanlc's Lien Law, the word must be deemed to have been used, not in its narrow sense, but with a broad signification—in a sense sufficiently broad to include "counties" within the category of "cities, towns, townships, and other municipalities." Herman et al. v. Essex Freeholders, 71 N. J. Eq. 541, 64 Atl. 742, affirmed 73 N. J. Eq. 416, 75 atl. 1101; Union Stone Co. v. Hudson Freeholders, 71 N. J. Eq. 657, 65 Atl. 466.

Indeed, Vice Chancellor Garrison in the latter case, in his interpretation of the meaning of the legislative enactment of 1892, supra, goes so far as to say:

"I think it clear that the Legislature meant to include in this legislation any public corporation whose functions included the making of public improvements, whether in any other sense of the word 'municipality' the said public corporation could be properly included or not."

This language would of course include the state highway commission, if the latter be deemed a corporation. There is nothing in the present act to indicate any intention on the part of the Legislature to restrict the application of the law within narrower confines than that of the previous act, as thus judicially interpreted. On the contrary, the use of the words "public commission, public board," in the present act, might be argued to indicate, if anything, an intent to broaden the scope of its application, by eliminating from Vice...