Francis, J.c.c. (temporarily assigned).
The New Jersey Turnpike Authority was authorized by the Legislature to construct a turnpike across a portion of the State of New Jersey from the New York State line to the Delaware River at Lower Penns Neck Township, Salem County. (N.J.S.A. 27:23-23; L. 1949, c. 41). Pursuant to this authorization, the Authority is now engaged in building the turnpike, a portion of which will run through the City of Newark. The Newark segment, according to the plan, will run from Bound Creek at the Essex-Union County line, generally north to Port Street, where there will be an interchange; then it will run northeasterly to the Passaic River at or near Point No Point, at the Essex-Hudson County line. At Raymond Boulevard, there will be another interchange. These two interchanges are separated by about two miles.
On August 16, 1950, the Authority awarded the contracts for the construction of this portion of the turnpike and the interchanges to Construction Aggregates Corporation and Peter Kiewit Sons' Company. These contracts call for the building of the roadway upon a base of earth.
The City of Newark filed a complaint seeking an injunction to prevent (1) the construction of one of the two interchanges, namely, the one proposed for Raymond Boulevard, and (2) the use of dirt fill in building a 7,100-foot segment of the roadway between the two interchanges.
In attacking these two aspects of the work of the Authority, the complaint charges that the Raymond Boulevard interchange
is unnecessary and constitutes an excessive taking of land which is valuable for future development as industrial sites. (Par. 11(e)). And it charges that the use of dirt fill in this 7,100-foot segment of the roadway is neither practicable nor standard construction; that the standard method of construction is steel structure or reinforced concrete with an open base, designed to preserve all existing public streets and all paper streets set out on the master plan for the future development of the city; and that the use of dirt fill will require a much broader base than a steel or reinforced concrete structure, resulting in an excessive taking of land valuable for potential industrial development. It then alleges that the conduct of the Authority in pursuing the criticized plans constitutes a "palpable abuse of power." (Par. 10.)
The complaint alleges also that, for various reasons, to be discussed herein, the New Jersey Turnpike Authority Act of 1948, as amended (N.J.S.A. 27:23-1), is unconstitutional and that in any event the power conferred thereby with respect to the taking of public streets for turnpike purposes is subordinate to that of the city under the Home Rule Act (R.S. 40:67-1, as amended L. 1947, c. 365, p. 1176).
The Authority has moved for summary judgment in its favor on the pleadings. Voluminous affidavits and exhibits have been submitted on the motion by it and by the city.
THE METHOD OF CONSTRUCTION AND THE INTERCHANGES
Basically the controversy here arises out of the projected use of dirt fill in the 7,100-foot section of the turnpike between the Port Street and the Raymond Boulevard interchanges, and out of the construction of the Raymond Boulevard interchange. It is conceded by the city that no challenge is made to the location of any part of the road. The test to be applied in determining the legality of the action of the Authority in this respect is clearly laid down in the recent case of Mayor, etc., of Elizabeth v. N.J. Turnpike
"In the instant case, the Legislature of New Jersey has by statute authorized the construction of the turnpike between two terminal points through designated counties. The Turnpike Authority is an administrative agency acting for the state and is vested with discretion in the selection of the particular route which the proposed turnpike will traverse. When public agencies are vested with discretionary power, a court of equity will not interfere unless there has been a plain and palpable abuse of discretion. A mere difference of opinion is not sufficient to justify the substitution of the court's discretion for that of the duly constituted authority vested by the Legislature."
The application of this test to the present controversy leaves little room for difference of opinion as to the propriety of intervention by the court.
A substantial portion of plaintiff's brief is devoted to a discussion of the many cases wherein it has been declared that a motion for summary judgment should not be granted where the affidavits present a factual controversy on the material issues in the action. (Cross v. Margolis , 136 N.J.L. 453 (Sup. Ct. 1948); Lipari v. Hudson County , 135 N.J.L. 359 (Sup. Ct. 1947); Berger v. Interstate Building and Loan Assn. , 121 N.J.L. 507 (E. & A. 1939); Kaplan v. Catlett , 121 N.J.L. 201 (E. & A. 1938); Datz v. Barry , 115 N.J. Eq. 84, pp. 86, 87 (E. & A. 1933). Thereafter, reference is made to the various affidavits submitted by officials of the Authority and the city, by various expert road construction engineers and real estate experts for the Authority and by a real estate expert, the chairman of the City Central Planning Board, the traffic engineer of the Department of Public Safety, and the chief engineer of the city.
These affidavits in their essence present a contrariety of opinion as to whether dirt fill is standard construction, advisable and satisfactory for turnpikes, and particularly this turnpike, and as to whether the Raymond Boulevard interchange is necessary. The chairman of the Authority, its chief engineer, and independent consulting engineers of wide
experience in the field of highway construction, all express the opinion that dirt fill represents proper, advisable and more aesthetic construction for this roadway; that it represents a saving of almost $11,000,000 over steel; that an estimated 33,000 tons of scarce steel would be required to meet plaintiff's construction demand; that construction similar to that proposed by the Authority was used in other well-known highways; and that traffic ...