In re Law

• Citation: 186 A. 528
• Parties: In re LAW.
• Decision Date: 21 July 1936
• Court: New Jersey Circuit Court

186 A. 528

In re LAW.

Circuit Court of New Jersey, Burlington County.

July 21, 1936.

Proceeding in the matter of the condemnation and taking of lands and every interest therein of George Joseph Law by the State of New Jersey by and through the Department of Conservation and Development. From the award, George Joseph Law appeals, and presents a petition seeking the removal of the case to the District Court of the United States for the District of New Jersey.

Petition denied.

Curry & Purnell, of Camden, for petitioner.

David T. Wilentz, Atty. Gen. (SacKett M. Dickinson, Asst. Atty. Gen.), for the State.

JAYNE, Circuit Court Judge.

An examination of the record of this proceeding reveals that the state of New Jersey through the agency of the Department of Conservation and Development sought to acquire by eminent domain certain lands owned by one George Joseph Law and situate in the county of Burlington in this state. The appropriate procedure was pursued, and the designated commissioners ultimately made an award of compensation to the owner for the lands thus acquired and for the incidental damages. The owner has appealed from the award of the commissioners, and now presents to this court a petition seeking the removal of the cause to the District Court of the United States for the District of New Jersey pursuant to the pertinent provisions of the federal statute. This application is resisted; It is therefore proper to inspect the record of the cause to ascertain and determine whether the cause, as exhibited by the record, is removable. McCarter v. American Newspaper Guild, 118 N.J.Eq. 102, 177 A. 835; George Weston, Ltd, v. New York Central R. Co, 115 N.J.Law, 564, 181 A. 18.

Concisely stated, the primary reason specified in the petition for the removal of this cause is that the petitioner is a citizen and resident of the commonwealth of Pennsylvania, and it is alleged that the Department of Conservation and Development is a citizen of the state of New Jersey, and that the members of the Board of Conservation and Development ace likewise citizens of New Jersey.

It will be at once observed that the initial petition in this condemnation proceeding was made by "The State of New Jersey acting by and through the Department of Conservation and Development." While this court is not at liberty to embark upon any factual inquiry beyond the face of the record and the statements of fact embraced by the petition for removal must ordinarily be accepted as true, yet it will be noticed that a true copy of the original petition in the proceeding to condemn the lands has been attached to and made a part of the petition for the removal of this cause. Therefore, the averment in the petition for removal to the effect that the initial petition to condemn the lands was filed by the certain named individuals who may then have been members of the Board of Conservation and Development is positively refuted by the inspection of the original petition itself. Obviously, this averment in the petition for removal is intended to be expressive of the contention of the petitioner. The contention that the individual members of the state board are parties to the condemnation proceeding is untenable. In the early case of Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204, it was held in construing the Eleventh Amendment to the Federal Constitution that in all cases where jurisdiction depended on the identity of the party, the real party was considered to be the party named in the record. In the more recent case In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216, it was determined that the amendment covers not only suits against a state by name, but those also against its officers, agents, and representatives, where the state, though not named as such, is nevertheless the only real party against which in fact the relief is asked and against which the judgment effectively operates. The Eleventh Amendment, of course, refers only to suits brought against a state, but the same principle of construction has been applied to the federal statutes relating to the removal of causes from a state court to a federal jurisdiction. Missouri, K. & T. R. Co. v. Hickman, 183 U.S. 53, 22 S.Ct. 18, 46 L.Ed. 78.

Here, however, the state of New Jersey is not only the nominal but the real party interested in the acquisition of the lands. The proceeding to acquire the lands was instituted under statutory authority P.L. 1905, p. 77 (2 Comp.St.1910, p. 2605 et seq, § 1 et seq.; P.L.1913, p. 340 (Comp.St. Supp.1924, § 83—2); P.L.1915, p. 426 (Comp.St.Supp.1924, § ***42—1 et seq.). The Department of Conservation and Development is a state agency. Board of Tenement House Supervision v. Schlechter, 83 N.J.Law, 88, 83 A. 783; Stephens v. Commissioners of Palisades Interstate Park, 93 N.J.Law, 500, 108 A. 645; Manufacturers' Land & Imp. Co. v. Board of Commerce & Navigation et al, 98 N.J.Law, 638, 121 A. 337, affirmed 101 N.J.Law, 224, 127 A. 924; Kearny v. State Board of Taxes and Assessment, 103 N.J.Law, 541, 138 A. 569; Nesbitt v. Board of Managers of New Jersey Agricultural Experiment Station, 157 A. 551, 10 N.J.Misc. 19; DeSantis v. Delaware, L. & W. R. Co, 165 A. 119, 11 N.J. Misc. 22.

At the argument some doubt was expressed as to whether a proceeding to condemn lands was a suit or action comprehended by the federal removal acts. If the other essential requisites, such as the diversity of citizenship and the amount in controversy, exist, a proceeding for the condemnation of land pending in a state court may undoubtedly be removed to the federal court. Mississippi & R. River Boom Co. v. Patterson, 98 U.S. 403, 25 L. Ed. 206; Searl v. School District, 124 U.S. 197, 8 S.Ct. 460, 31 L.Ed. 415; Madisonville Traction Co. v. St. Bernard Min. Co, 196 U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462; City of New York v. Sage, 239 U.S. 57. 36 S.Ct. 25, 60 L.Ed. 143. Whether under the procedure prescribed by our Eminent Domain Act of 1900 (P.L.1900, p. 79) the proceeding assumes the character of a civil action from its inception or not until the appeal carries it to the circuit court, need not be here definitely determined. Where diversity of citizenship is assigned as the sole ground for the removal of such a cause, the time within which the petition for removal should be filed might occasion debate. But see, In Pacific Railroad Removal Cases, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319; Upshur County v. Rich, 135 U.S. 467, 10 S.Ct. 651, 34 L.Ed. 196; Madisonville Traction Co. v. St. Bernard Min. Co, supra; City of New York v. Sage, supra; Minneapolis, etc, R. Co. v. Nestor (C.C.) 50 F. 1; Kansas City v. Metropolitan Water Co. ...