On appeal from the Chancery Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
This is an appeal by the City of Newark from a summary judgment of the Chancery Division of the Superior Court granted on the motion of the defendants. The appeal was taken to the Appellate Division of the Superior Court and while there pending was certified here on our own motion.
The New Jersey Turnpike Authority was created by the New Jersey Turnpike Authority Act of 1948 (L. 1948,
c. 454, as amended L. 1950, c. 1) for the purpose of financing, constructing and operating a modern express highway traversing the State from the George Washington Bridge in the north to the Delaware Memorial Bridge in the south. The route determined upon by the Authority for the turnpike runs south through the easterly section of the City of Newark from Point No Point on the Passaic River to Bound Creek on the Essex-Union County Line, with interchanges at Raymond Boulevard and Port Street approximately two miles apart. The Authority's plans call for the construction of approximately 7,100 feet of the turnpike in the Newark area from Roanoke Avenue to the Lehigh Valley Railroad on a base of earth varying in height from 5 to 67 feet, with bridges provided across certain streets and railroads. In August, 1950, the contract for the grading of the Newark portion of the turnpike was awarded to Construction Aggregates Corporation and Peter Kiewit & Sons Co.
The city instituted this action to enjoin the performance of the grading contract, to prevent the construction of this portion of the turnpike in the manner contemplated, to have the Turnpike Authority Act declared unconstitutional, and to obtain temporary restraint pending final determination of the action. In support of its contention that the Authority palpably abused its power in settling upon the present mode of construction, the city alleged that the Raymond Boulevard interchange is unnecessary and requires an excessive taking of potentially valuable land and that building upon a base of earth, rather than erecting a steel or reinforced concrete structure with an open base, is wasteful of land and, in addition, is neither practical nor standard construction, and interferes unduly with existing and paper streets and with the city's master plan for future industrial development. The city's attack upon the constitutionality of the Turnpike Authority Act was premised upon the assertion that section 5 (j) of the act vesting powers of eminent domain in the Authority and sections 7 and 8 of the act dealing with the method of issuing bonds by the Authority constitute an
illegal delegation of legislative power for want of appropriate standards. The city also averred in its complaint that the consent of its board of commissioners is mandatory under section 14 of the act before the Authority can take public lands now devoted to the public use, and that the plenary powers of the city under the Home Rule Act (R.S. 40:67-1 et seq.) to regulate and control its streets have not been extinguished or impaired by the Turnpike Authority Act.
After answering the complaint, the Authority and its codefendants moved for summary judgment on the pleadings pursuant to Rule 3:56 and lengthy affidavits and exhibits were duly submitted by the parties. The trial court granted the defendants' motion, holding that "no genuine factual issue on the subject of palpable abuse of authority" in the determination of the mode of construction was presented, and that there was no merit to the city's contentions that the Turnpike Authority Act was unconstitutional or that the Authority's actions were otherwise invalid. It is from this judgment that the city appealed.
As its principal point the city contends that the pleadings, affidavits and exhibits raised a genuine issue of fact on which trial should have been had and that the court below erred in entering summary judgment on the defendants' motion. With this contention we do not agree. The Turnpike Authority is an independent public corporation especially created by the Legislature to carry out legitimate and important functions of government. It is a body both corporate and politic analogous in many respects to a municipal corporation, New Jersey Turnpike Authority v. Parsons, 3 N.J. 235 (1949). Like a municipal corporation it is vested with and enjoys a considerable degree of discretion as to the manner in which it carries out its functions. So long as such a corporation operates within the orbit of its statutory authority, it is well established that the courts will not interfere with the manner in which it exercises its power in the absence of bad faith, fraud, corruption,
manifest oppression or palpable abuse of discretion, 2 McQuillan, Municipal Corporations (3 rd ed. 1949) §§ 10.33-10.37 and the numerous cases there cited. Therefore, since in the instant case it is unquestioned and, indeed, unquestionable that the Turnpike Authority was acting within the scope of its statutory powers in determining upon the location and mode of construction of the turnpike, the court below quite properly concluded that the question on the motion for summary judgment was whether the pleadings, affidavits and exhibits created an issue of fact on which a finding might be made that the Authority in adopting its plans was guilty of a palpable abuse of discretion. The city objects to the use of the term "palpable abuse of discretion" and asserts that the true issue is whether the Authority unreasonably or arbitrarily exercised its discretion. This objection is of no significance, however, for the terms are substantially synonymous as is indicated in Dubin v. Wich, 120 N.J.L. 469, 471 (Sup. Ct. 1938). It is there stated that "it is the settled rule that the exercise of a discretionary authority will not be disturbed unless palpably abused, i.e., the action taken is arbitrary or capricious." The test applied by the court below in determining the legality of the action of the ...