On appeal from the Supreme Court.
For the appellant, John J. Stamler and Merritt Lane.
For the respondent, David T. Wilentz, attorney-general, William A. O'Brien, Benjamin G. VanTine and William J. McCormack, assistant attorney-generals.
The opinion of the court was delivered by
WELLS, J. This is an action by the plaintiff, a contractor, against the State Highway Commission of the State of New Jersey, to recover an alleged balance due to it under a contract whereby it agreed to furnish and deliver all material and labor for the construction of Route No. 10, in conformity with the specifications of the State Highway Department, and whereby the State Highway Commission agreed to pay to the plaintiff "for said work when completed in accordance with said plans and specifications" the prices specified in said contract.
The complaint originally filed improperly named the State Highway Commission rather than the State Highway Commissioner as the defendant. See Pamph. L. 1935, ch. 178, p. 440 (1 Rev. Stat. 27:1-1). An amendment was allowed correcting this mistake.
Before this amendment was allowed, however, an application was made to the trial court sitting as Supreme Court commissioner, to quash the summons and dismiss the complaint upon the ground that the State of New Jersey could not be sued in its own court without its consent and that a suit against the State Highway Commission, an agency of
the state, was in effect a suit against the state itself, and could not be maintained because consent to be sued had not been given.
The trial court struck the complaint, holding that the suit was one in effect against the state, relying upon Curtis and Hill Gravel and Sand Co. v. State Highway Commission (Court of Chancery, 1920), 91 N.J. Eq. 421, &c., wherein Vice-Chancellor Buchanan said:
"That the State Highway Commission is an alter ego of the state and not a mere subordinate is so clear as to need little discussion. The statute (Pamph. L. 1917, p. 35, § 1) creates a State Highway Department 'to be governed by a board to be known as the State Highway Commission.' The members of the commission are the governor himself, ex-officio, and eight members appointed by the governor by and with the advice and consent of the senate. The contracts made by the commission are clearly contracts of the state -- they may be made either in the name of the state or of the commission. The funds expended for its work are the funds of the state, and expended through the usual state channels. The work which it is to do is the construction and maintenance of a state highway system, reaching throughout the entire state and for the benefit of all the citizens, not merely in or for the benefit of any particular locality of the citizens thereof."
With this enunciation of the learned vice-chancellor we are in accord. There have been numerous decisions in the courts of our state to the same general effect, some of which cite Curtis and Hill Gravel and Sand Co. v. State Highway Commission, supra; see Haycock v. Jannarone (Court of Errors and Appeals), 99 N.J.L. 183; Nesbitt v. Board of Managers, New Jersey Agriculture Experiment Station (Supreme Court, 1931), 10 N.J. Mis. R. 19; Stephens v. The Commissioners of the Palisades Interstate Park (Court of Errors and Appeals, 1919), 93 N.J.L. 500; DeSantis v. Delaware, Lackawanna and ...