N.J. Interstate Bridge & Tunnel Comm'n v. Jersey City

• Decision Date: 13 July 1922
• Docket Number: No. 52/104.,52/104.
• Citation: 118 A. 264
• Parties: NEW JERSEY INTERSTATE BRIDGE & TUNNEL COMMISSION et al. v. JERSEY CITY et al.
• Court: New Jersey Court of Chancery

118 A. 264

NEW JERSEY INTERSTATE BRIDGE & TUNNEL COMMISSION et al.

v. JERSEY CITY et al.

No. 52/104.

Court of Chancery of New Jersey.

July 13, 1922.

Suit by the New Jersey Interstate Bridge & Tunnel Commission and others against the City of Jersey City and others. Decree for complainants.

Emerson Richards, of Atlantic City, for the motion.

Thomas J. Brogan, of Jersey City, for Jersey City, opposed.

WALKER, Ch. Chapter 49, P. L. 1918, is "An act to provide for the appointment of an interstate bridge and tunnel commission and to define its powers and duties," and provides inter alia that the commission thereby created shall have such duties in connection with the providing of interstate bridges and tunnels as should from time to time be conferred upon it by the Legislature, and should have all the powers appropriate and necessary for the performance of such duties. Chapter 50, P. L. 1918, is an act to extend the system of highways in the state, and provides for the construction, maintenance, and operation of bridges and tunnels across the Delaware and Hudson rivers, or either of them. This latter act authorizes the bridge and tunnel commission to make plans, specifications, etc., for the construction of a bridge or tunnel across the Hudson river in co-operation with the city or state of New York, and to enter into the necessary agreements or contracts with both states for the construction of the tunnel, and to enter into the necessary contract for such construction either in its own name or in the name of the; state or both, with full power in the name of the state to acquire by purchase or condemnation all lands, or rights or interests in lands, within the state which may be necessary for the construction of such tunnel. The states of New Jersey and New York, pursuant to the authority vested in them, respectively, entered into a contract with Booth & Flynn, Limited, for the construction of two tunnels between Jersey City and New York City. The magnitude of the work is demonstrated by the fact that the contract price is $12,132,100.50, and the time of completion of the work is fixed as 36 months from June 25, 1922. In pursuance of this contract a large amount of materials have been purchased by the contractor, subcontracts entered into with divers persons, and a large amount of materials assembled for the prosecution of the work at a point in the Erie Railroad yards in Jersey City. Title to the land required is vested in the state of New Jersey, which land is to be used during the construction of the tunnel, and afterwards as a plaza for an approach thereto. The contractor, pursuant to the terms of the contract and upon notice from the chief engineer of the commission, entered upon the aforementioned land of the state of New Jersey and began preparations to erect an air-compressing plant necessary for the prosecution of the work, and while so engaged the officers, engineers, and workmen of Booth & Flynn, Limited, were stopped by police officers of Jersey City and prevented from prosecuting the work, for the given reason that it could not be proceeded with unless and until the contractor obtained a permit therefor from the city of Jersey City.

Upon filing the bill in this cause and the affidavits thereto annexed, from which the above facts are made to appear, an order was made on the mayor and the city commissioners of Jersey City, their officers, agents, and employees, to show cause why they should not be enjoined and restrained from interfering with the bridge and tunnel commission and Booth & Flynn, Limited, in the work of constructing the tunnel, or in any manner obstructing, delaying, or preventing the erection upon the state's premises of a power plant or other works, etc., and they were enjoined in the meantime, and until further order of the court.

There are no disputed facts. Counsel for the state contends that the work above mentioned is being done by the state in its sovereign capacity, and is not subject to interference in any wise by the municipality of Jersey City. This great work of constructing tunnels under the Hudson river is the work of the state itself, for the state, wherever it prosecutes any great governmental purpose, either in its own name or by and in the name of its appropriate agent, is the actor in carrying the particular purpose into execution. State v. Morris Canal, 14 N. J. Law, 41L Counsel for the defendants admits this, but claims that even the sovereign state is bound to acknowledge the right of Jersey City to insist upon the contractor taking out a permit under its building code for the purpose of prosecuting the work in question. And he relies upon section 15 of the contract, which reads:

"15. In all operations connected with the works the contractor shall strictly comply with all ordinances of Jersey City and of the board of health and all laws of the state of New Jersey and of the state of New York which are applicable to, and control or limit in any way the actions of those engaged in the work or affect the materials entering into the work, or affect the methods and appliances used by the contractor in carrying out the work, and he shall further strictly comply with all other federal, state and municipal regulations applicable to the work, including the transportation, of materials in and around the city and harbor of New York."

Jersey City is not a party to the contract....