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Simon v. O''Toole

Decided: June 18, 1931.

SOLOMON SIMON, JACOB L. SOLOMON AND PATRICK GALANTE, PROSECUTORS,
v.
PETER O'TOOLE, CLERK OF THE CITY OF NEWARK, NEW JERSEY; BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, NEW JERSEY, AND PRUDENTIAL INSURANCE COMPANY OF AMERICA, RESPONDENTS



On certiorari, &c.

For the prosecutors, Herman W. Brams and Merritt Lane.

For the respondents, Frank A. Boettner, Frederick H. Groel, Alfred Hurrell and Charles B. Bradley.

Before Justices Trenchard, Daly and Donges.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. On October 15th, 1930, the board of commissioners of the city of Newark adopted an ordinance which

authorizes the execution of a contract with the Prudential Insurance Company of America, which provides, as hereinafter more fully stated, for the acquisition by the company of two entire blocks in Newark, and the construction on a part thereof by the company of modern housing facilities, and for the purchase by the city from the company of the remaining land for the purpose of parks and playgrounds, pursuant to the provisions of chapters 201 and 202 of the laws of 1929 (Comp. St Supp. ยงยง *136 -- 3771B (1) to *136 __ 3771B (9) and sections 99 -- 16f(1) to 99 -- 16f (6).

Before the execution of the contract, the present writ of certiorari was allowed certain taxpayers of the city bringing up such ordinance for review. The reasons filed challenge the validity of the ordinance upon several grounds which may be restated as follows: (1) The ordinance contemplates the expenditure of public funds for a private purpose in aiding the Prudential to carry out the housing plan in question. (2) The ordinance constitutes an abuse of discretion by the commissioners because (a) the price to be paid by the city for the acquisition of the lands is greatly in excess of their true value, and because (b) the lands to be acquired by the city are wholly unsuitable for the purpose of a public park and will not in fact be used as such. (3) The board of commissioners had no legal power to adopt an ordinance for the purchase of parks and playgrounds because under the governing statute all executive, legislative and judicial powers with respect to public parks are lodged solely in the commissioner assigned as director to the department of parks and public property, who voted against the adoption of the ordinance.

We think that the ordinance contemplates the expenditure of public funds for a public purpose only, and not for the purpose of aiding a private enterprise.

The prosecutors argue that the real purpose of the ordinance is to authorize such expenditure to aid the Prudential in carrying out a housing plan, thereby depriving the prosecutors, as taxpayers, of their property without due process of law in violation of the constitution of New Jersey and of the fourteenth amendment to the constitution of the United States.

We think not. In passing we point out, as was said in North Baptist Church v. Orange, 54 N.J.L. 111 (a somewhat similar case):

"It is observable that it is no part of our functions to decide whether the scheme adopted in this instance was a wise one. We have no power to try the question whether the advantages that would accrue to the public by reason of this improvement would be greater or less than the burden which it would impose, nor whether the degree of public benefit is so small that it does not justify the taking of land against the will of its owner. These questions have been confided by the legislature in the common council. If it should appear that there could not inure to the public any advantage whatever, and that the scheme is designed solely for the benefit of private individuals, the court could interpose in favor of the landowner whose property is menaced. But when it is perceived that there is a degree of public benefit likely to spring out of the enterprise, all questions of policy in executing it are devolved upon the common council."

Now section 1 of the ordinance recites the desire of the city that "in the interest of the public health, safety and morals certain blocks of unsafe and unsanitary dwellings * * * should be replaced in part by new housing facilities constructed in accord with proper standards of sanitation and safety and provided with appropriate parks and playgrounds." Section 2 recites the willingness of the Prudential to acquire the tracts of land upon which the objectionable dwellings stand and to construct upon a part thereof such new housing facilities and to convey to the city certain other parts for the purpose of such parks and playgrounds. The succeeding sections authorize the execution of an agreement, fully set forth therein, between the city and the Prudential for carrying out the recited purposes and provide for financing the cost of the purchase by the city of that portion of the blocks in question which the city proposes to convert into parks and playgrounds. That agreement in substance is as follows: (1) The Prudential agrees to take all possible steps to acquire, pursuant to chapters 201 and 202 of the laws of 1929, the

blocks in question at the lowest prices obtainable and to submit to the city a project for the construction thereon of the new housing facilities occupying strips thirty feet deep on two fronts, in such manner that there shall be left vacant an interior strip one hundred and forty feet wide separating the housing facilities constructed on existing street fronts. (2) Upon approval by the city of the project, the Prudential contracts to carry the same to completion. (3) The city, in consideration of the acquisition of the blocks by the Prudential and of the Prudential's contractual undertaking to construct the housing facilities, agrees to purchase from the Prudential such part of the one hundred and forty-foot strip as the Prudential may have acquired, "for the purpose of parks and playgrounds to be maintained by the city for the benefit of the public at large," and the city agrees to pay to the Prudential as the purchase price thereof such proportion of the total price paid by the Prudential for the lands acquired by it as the area of the land purchased from the Prudential bears to the total area acquired by the Prudential; and the city agrees to acquire for such park purposes, either by treaty or condemnation, such portions of the tracts as shall not have been acquired by the Prudential; provided, however, that the price to be paid by the city for the one hundred and forty-foot strip shall in no case exceed $1,200,000.

It will be observed that the only money to be paid by the city pursuant to the contract consists of the purchase price of the one hundred and forty-foot strip to be acquired for public parks and playgrounds, and that this price, the maximum of which is carefully limited in the interest of the city, is based upon the proportion that the area of the land purchased from the Prudential bears to the total area acquired by the Prudential. The city's obligation to purchase this land and to pay to the Prudential the contract price does not arise until the primary public purpose of the ordinance has been, accomplished, namely, the submission to the city of a housing project ...


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