Ryan v. Hous. Auth. of City of Newark, 292.

Citation125 N.J.L. 330,15 A.2d 647
Decision Date05 October 1940
Docket NumberNo. 292.,292.
PartiesRYAN et al. v. HOUSING AUTHORITY OF CITY OF NEWARK et al.
CourtUnited States State Supreme Court (New Jersey)

[Copyrighted material omitted.]

Certiorari proceeding by Julia M. Ryan and others against the Housing Authority of the City of Newark, New Jersey, a body corporate, and others, to review an order appointing condemnation commissioners.

Writ dismissed.

Argued May term, 1940, before CASE, DONGES, and HEHER, JJ.

Kanter & Kanter, of Newark (Elias A. Kanter, of Newark, of counsel), for prosecutors.

Milton R. Konvitz, of Newark (Frank H. Sommer and Samuel Roessler, both of Newark, of counsel), for defendants.

HEHER, Justice.

On March 20, 1940, the Housing Authority of the City of Newark, a body corporate and politic created under the provisions of the United States Housing Act of 1937 (42 U.S.C.A. § 1401, et seq.) and Ch. 19 of our session laws of 1938 (Pamph. L. p. 65; R.S, 55:14A-1 et seq., N.J.S.A. 55:14A-1 et seq.), presented to Circuit Court Judge Caffrey a petition, styled in the "Essex Circuit Court," averring the need of certain of prosecutors' lands for the consummation of a "public housing project for families of low income in the City of Newark," undertaken pursuant to the grants of power contained in the cited statutes, and the adoption by the Authority of a resolution reciting that it "cannot acquire" the lands "by agreement with the owner by reason of disagreement as to price" and directing the institution of condemnation proceedings under R.S.1937, 20:1-30, et seq., as amended and supplemented by Ch. 21 of the Laws of 1938 (Pamph. L. p. 92, N.J.S.A. 20:1-30, 20:1-36), and praying for the appointment of commissioners to settle compensation; and an order was thereupon made, likewise captioned in the Essex Circuit Court, appointing a time and place for a hearing thereon. Due notice was given to the landowners.

Thereupon, the landowners served notice that, on the day so fixed, they would move for the vacation of the order on the grounds (a) that the project is not a "use or purpose for which" their lands "may be taken by condemnation," since the object is "private." and not "public" in nature, and Ch. 19 of the Laws of 1938, supra, particularly section 9 thereof (Pamph.L. pp. 65, 75; R.S. 55:14A-8, N.J.S.A. 55:14A-8), is in contravention of Article I, paragraph 16, and Article IV, section VII, paragraph 8, of the State Constitution, N.J.S.A.; (b) that the petition was "legally insufficient to confer jurisdiction," in that it failed to allege that petitioner could not "acquire" the lands "by agreement with the owners for any of the reasons stated in the statute (R.S. 20:1-1, N.J.S.A. 20: 1-1);" and (c) that the recital in the resolution of the Authority appended thereto of an "offer made by" it, "of the rejection thereof, and of a counter-offer, is untruthful," as was also the recital that the lands "cannot be acquired by agreement 'by reason of disagreement as to price.'"

Judge Caffrey denied the landowners' motion, and appointed commissioners to appraise the lands and assess the damages and fix compensation. Refusing to receive testimony on the factual questions so raised, he ruled that the "application" for the appointment of commissioners "was regular on its face and the statutory requirements were fully met, as evidenced by the moving papers;" and that he was "sitting as a statutory court, and if there is any error in any of these proceedings, it should be properly raised by a writ of certiorari." The landowners then sued out this writ.

The first point made is that, in such proceedings, the landowner "is entitled to dispute, in the court where the condemnation petition is filed, the factual allegations" thereof, "and is likewise entitled to a trial of the issues thus made," and the order appointing commissioners should therefore be reversed.

More specifically, it is said that the eminent domain act (R.S. 20:1-1 et seq., N.J.S.A. 20:1-1 et seq.) "contemplates a judicial proceeding;" that it "clearly entrusts this important subject of condemnation to one of two courts, either the Supreme Court or to the Circuit Court;" that "The condemning party must have 'power to take land * * * for public use;'" that "One of the conditions precedent (and the one asserted by the petition * * * as existing in the case at bar) is 'disagreement as to price;'" and that the statutory provision of a "hearing" on the petition connotes "power to determine (1) whether the petition is legally sufficient," and (2) whether it "is factually true." And the argument is that, unless it be held that "the Circuit Court, under the statute, has the power, the duty and the right—like any other Court of unrestricted common-law jurisdiction—fully to hear and determine the entire issue, and all phases of the issue initiated by the condemnation petition * * *, then the procedural statute is unconstitutional since it would" deprive the Supreme Court and the several circuit courts of "an inherent judicial power." Reference is made to section I, paragraph 1, and section V, paragraphs 2, 3, of Article VI of the State Constitution.

This reasoning evinces a misconception both of fundamental principle and of the legislative scheme.

The statutory jurisdiction is not conferred upon the Supreme Court and the several circuit courts, but rather upon the individual justices and judges thereof, designatio personae. And such grant of authority in no wise curtails the constitutionally secured judicial power of these courts. The right of eminent domain is an inseparable attribute of sovereignty— an inherent power grounded in the primary duty of government to serve the common need and advance the general welfare. The designees are mere legislative agents exercising a delegated authority. The expropriation of private property is essentially a legislative function; and the Legislature may lodge the selection of commissioners to appraise the lands in such agency as it chooses, for that in essence is not the exercise of judicial authority within the intendment of the constitutional provisions adverted to. Sinnickson v. Johnson, 17 N.J.L. 129, 34 Am.Dec. 184; In re Application, etc., between Lower Chatham and Little Falls, 35 N.J.L. 497; Olmsted v. Proprietors of Morris Aqueduct, 47 N.J.L. 311; Morris v. Heppenheimer, 54 N.J.L. 268, 23 A. 664; Sisters of Charity v. Morris Railroad Co., 82 N.J.L. 214, 81 A. 817, affirmed 84 N.J.L. 310, 86 A. 954, 50 L.R. A., N.S., 236; Scudder v. Trenton Delaware Falls Co., 1 N.J.Eq. 694, 23 Am.Dec. 756; Coster v. Tide Water Co., 18 N.J.Eq. 54, affirmed sub nom. Tide Water Co. v. Coster, 18 N.J.Eq. 518, 90 Am.Dec. 634; State Highway Commission v. City of Elizabeth, 102 N.J.Eq. 221, 140 A. 335, affirmed 103 N.J.Eq. 376, 143 A. 916.

While in the ultimate analysis it is a judicial question whether the use is "public" in nature, the "necessity" and "expediency" of the expropriation of private property are purely legislative concerns, and a hearing thereon is not essential to "due process" within the intendment of the Fourteenth Amendment of the Federal Constitution or of our State Constitution. If the common weal will be so materially subserved by the project to which the lands are to be devoted as reasonably to deserve the category of a "public" use, it is the exclusive province of the Legislature to determine whether the public interest warrants the exercise of the power of eminent domain for the fruition of the plan. Tide Water Co. v. Coster, supra; Olmsted v. Proprietors of Morris Aqueduct, supra; Albright v. Sussex County L. & P. Comm., 71 N.J.L. 303, 57 A. 398, 69 L.R.A. 768, 108 Am.St.Rep. 749, 2 Ann.Cas. 48; Hairston v. Danville & W. R. Co., 208 U.S. 598, 28 S.Ct. 331, 52 L.Ed. 637, 13 Ann. Cas. 1008; City of Cincinnati v. Louisville & N. R. Co., 223 U.S. 390, 32 S.Ct. 267, 56 L.Ed. 481. And the authority to determine the question of necessity is delegable. "Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment." Bragg v. Weaver, 251 U.S. 57, 40 S.Ct. 62, 63, 64 L.Ed. 135. See, also, A. Backus, Jr., & Sons v. Fort Street Union Depot Co., 169 U.S. 557, 18 S.Ct. 445, 42 L.Ed. 853; Joslin Mfg. Co. v. Providence, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167; Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186; Georgia v. Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796; North Laramie Land Co. v. Hoffman, 268 U.S. 276, 45 S.Ct. 491, 69 L.Ed. 953; Cincinnati v. Vester, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950. But, as respects the determination of compensation for the taking, due process requires that the landowner be afforded an opportunity to be heard upon reasonable notice. Bragg v. Weaver, supra; North Laramie Land Co. v. Hoffman, supra. That calls for judicial action. Compare State (Townsend, Prosecutor) v. Mayor, etc., of Jersey City, 26 N.J.L. 444; Winans v. Crane, 36 N.J.L. 394.

Yet it is not requisite that these justiciable questions be determined in the first instance by the legislative agency invested with the authority to select the commissioners. The requirements of due process are satisfied if a timely hearing be afforded prior to the conclusion of the proceedings. Statutes regulating the exercise of the right of eminent domain "may adopt a procedure, summary in character"; and "notice of such proceedings may be indirect, provided only that the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter and afford to the property owner reasonable opportunity at some stage of the proceedings to protect his property from an arbitrary or unjust appropriation." North...

To continue reading

Request your trial
38 cases
  • City of Trenton v. Lenzner
    • United States
    • United States State Supreme Court (New Jersey)
    • 22 Noviembre 1954
    ......Scudder, 16 N.J.Super. 576, 85 A.2d 292 (App.Div.1951)); in any event, we are satisfied with the ...536, 543, 89 A.2d 18 (1952); Ryan v. Housing Authority of Newark, 125 N.J.L. 336, 341, 15 ......
  • Vickers v. Township Committee of Gloucester Tp.
    • United States
    • United States State Supreme Court (New Jersey)
    • 7 Mayo 1962
    ...... suburban blight as it does to eradicate city slums.' Lionshead Lake, Inc. v. Township of ...Board of Adjustment of the City of Newark, 9 N.J. 405, 88 A.2d 607 (1952), supra, the ... provide decent living accommodations, e.g., Ryan v. Housing Authority of Newark, 125 N.J.L. 336, ......
  • Liddick v. City of Council Bluffs
    • United States
    • United States State Supreme Court of Iowa
    • 11 Agosto 1942
    ...105 P.2d 302;Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 10 S.E.2d 375;Ryan v. Housing Authority of City of Newark, 125 N.J.L. 336, 15 A.2d 647;Bronx Chamber of Commerce v. Fullen, 174 Misc. 524, 21 N.Y.S.2d 474; 1 Lewis, Eminent Domain, section 10. These provisions are for the protec......
  • Liddick v. City of Council Bluffs
    • United States
    • United States State Supreme Court of Iowa
    • 11 Agosto 1942
    ......689, 10 S.E.2d. 375; Ryan v. Housing Authority of City of Newark, 125 N.J.L. 336, 15 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT