For the prosecutors, Kanter & Kanter (Elias A. Kanter, of counsel).
For the defendants, Milton R. Konvitz (Frank H. Sommer and Samuel Roessler, of counsel).
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
HEHER, J. On March 20th, 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 chapter 19 of our session laws of 1938 (Pamph. L., p. 65; R.S. 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 directing 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. 20:1-30, et seq., as amended and supplemented by chapter 21 of the laws of 1938 (Pamph. L., p. 92), 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 chapter 19 of the laws of 1938, supra, particularly section 9 thereof (Pamph. L., pp. 65, 75; R.S. 55:14A-8), is in contravention of article I, paragraph 16, and article IV, section VII, paragraph 8, of the State Constitution; (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);" 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 land-owner "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) "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 ...