On motion to dismiss appeal.
Eastwood, Bigelow and Francis. Francis, J.c.c. (assigned) (dissenting).
The proceedings instituted by The New Jersey Turnpike Authority (hereinafter referred to as "The Authority") to condemn the lands of Edwin P. Sweeten and Geraldine B. Sweeten, his wife (hereinafter referred to as the "owners"), resulted in an award by the commissioners of $52,500. The authority moves to dismiss the appeal of the owners from an order of Superior Court Judge Woods, entered on November 28, 1951, denying the owners' application to direct the commissioners to reopen and reconsider their report to include additional compensation for the destruction of the access road to their property, and to tax and allow their costs, fees and expenses.
The commissioners were appointed on January 26, 1951, the order providing that their report be filed by May 1, 1951,
which time was extended by Judge Woods' orders, respectively to June 22, 1951, and July 27, 1951. The commissioners' report was filed on July 5, 1951. No appeal was taken therefrom by either party within the ten-day period prescribed by R.S. 20:1-16. Nor was any application made for an extension of the time for filing the notice of appeal within the 30-day period provided under R.S. 20:1-17. On August 13, 1951, the owners made an application to Judge Woods for reconsideration of the commissioners' report and the allowance of their costs, fees and expenses. This application was denied by Judge Woods on the grounds that (1) a review or reconsideration of the commissioners' report must be by appeal to the Superior Court and a trial before a struck jury, and (2), that there was no statutory authority for the allowance to the owners for their costs, expenses and fees. Thereupon, the owners took an appeal from Judge Woods' order.
We are clearly of the opinion that the motion for dismissal of the appeal must be granted. Our courts have consistently held that proceedings taken under the Eminent Domain Act (R.S. 20:1-1 et seq.) are before a judge of the Superior Court solely as a legislative or statutory agent; that these proceedings are not in the Superior Court as such, or before a judge of the Superior Court as such. Teaneck Township v. Mercer , 124 N.J.L. 120 (E. & A. 1939); Bergen County Sewer Authority v. Little Ferry , 5 N.J. 548 (1950). In the Teaneck case, Mr. Justice Case, speaking for the court, stated:
"All of the papers from the application for appointment of commissioners on down appear to have been entitled in the Supreme Court. The proceedings to condemn were not in the Supreme Court; neither was the application for allowances. Justice Bodine sat as a statutory tribunal; the papers should have been appropriately entitled, and those with which this appeal is concerned may be amended accordingly."
In the Little Ferry case, Mr. Justice Ackerson, speaking for the Supreme Court, stated:
"* * * The Eminent Domain Act (R.S. 20:1-1 et seq.) refers the appointment of condemnation commissioners to 'one of the justices of the supreme court or to a judge of the circuit court * * *' (now judges of the new superior court, R.S. 1:1-22). The right of eminent domain is an inseparable attribute of sovereignty -- an inherent power founded in the primary duty of government to serve the common need and advance the general welfare -- and its exercise is essentially a legislative and not a judicial function. Hence the judicial officer designated to appoint the commissioners who fix the compensation to be paid for the expropriation of private property acts as a mere legislative agent in furtherance of the legislative will upon the ascertainment of certain facts according to the standard laid down in the statute which is a properly delegated legislative function. It is not in essence the exercise of judicial authority within the intendment of Article III of our present Constitution pertaining to the division of governmental powers. The statutory jurisdiction is not conferred upon the courts as such but upon the individual judges thereof, designatio personae , who act in exercising it solely in the capacity of legislative agents exercising a delegated authority. * * * For these reasons, under the practice existing prior to the effective date of the Judiciary Article of our present Constitution (September 15, 1948), certiorari was the appropriate remedy for reviewing an order appointing condemnation commissioners, R.S. 20:1-8, the counterpart of which is now found in Rule 3:81-2, providing for proceedings in lieu of prerogative writs in the Law Division of the Superior Court."
The owners argue that they are entitled to proceed by appeal to the Appellate Division under authority of Rule 3:81-8. This rule specifically applies and is limited to appeals from the final decision or action of any state administrative agency. Clearly, under the ...