Drewen, J.c.c. (temporarily assigned).
[27 NJSuper Page 330] The plaintiff Port of New York Authority (herein called The Port Authority) is a body corporate and politic existing by virtue of the compact between the States of New York and New Jersey, entered into April 30, 1921 (R.S. 32:1-7, art. VI), as the same is confirmed and validated by concurrent legislation of the two states (Laws of New Jersey , 1922, c. 9; Laws of New York , 1922, c. 43), and finally approved by Public Resolution No. 66 of the Sixty-seventh Congress of the United States (42 Stat. 822). The Port Authority was created in the character of "an instrumentality or agency of the two states to effectuate * * * a plan or plans for the comprehensive development of the" district or area within the territorial limits defined and designated as the Port of New York (R.S. 32:1-25). A comprehensive plan within the meaning and intent of the compact having previously been submitted to and adopted by the states, the latter did by appropriate legislation authorize and empower The Port Authority to effectuate the same, e.g., R.S. 32:1-33. Among the statutes concurrently enacted by the states from time to time, and vesting in the said plaintiff particular
power and authority for the successive projects undertaken by it within the plan aforementioned, are those pursuant to which the said plaintiff has heretofore constructed the two vehicular tubes or tunnels under the Hudson River, originally called the Midtown Hudson Tunnel and now known as the Lincoln Tunnel. These statutes read in part as follows (L. 1931, c. 4, sec. 2, p. 19; R.S. 32:1-119):
"In furtherance of the aforesaid policy, and in partial effectuation of the comprehensive plan heretofore adopted by the two said states for the development of the said the Port of New York District * * * the port authority is hereby authorized and empowered to construct, own, maintain and operate an interstate vehicular tunnel or tunnels (hereinafter called the Midtown Hudson tunnel) under the Hudson river, together with such approaches thereto and connections with highways as the port authority may deem necessary or desirable * * *."
The construction of the first tube of the Midtown Hudson Tunnel was begun in 1934 and completed in 1937. The construction of the second tube was begun in 1937 and completed in 1943. In order to expand the capacity of the Midtown Hudson Tunnel to an extent made exigent by subsequent traffic increase, as The Port Authority contends, it has projected the construction of the third tube, here in question, and to that end has made contracts for the work required. One of its contractors is the plaintiff Walsh Construction Company, which has contracted to build a ventilating shaft at the New Jersey end of the new third tube, the situs of the work being within the territorial limits of the defendant township. When the Walsh Company undertook to begin operations its servants and agents were confronted by the opposition of the township officials. The mayor and the authorities of the local police presented themselves to the company's representatives on the ground and ordered that the work be halted, declaring that it would be permitted only upon condition that The Port Authority or its contractor first comply with the township ordinances having reference to prerequisite municipal permits for operations of the kind in question. It should be noted that while the work was to be performed within the township limits, it was not upon township
property. There was no compliance with the township's demand as stated, and because of the situation thus created the company made no further attempt to proceed with its work. Plaintiffs thereupon filed their complaint and proofs in this court, and after preliminary hearing on the question of interlocutory restraint, such restraint was ordered. Final hearing has since been had and the cause fully argued. The question of permanent injunction is now to be decided.
The initial opposition by defendants, already described, was manifestly a challenge to the sovereignty represented by The Port Authority as an instrumentality of the states, and implicit in the opposition was the contention that The Port Authority was in no way absolved from compliance with the township ordinances having relation to the case. That position apparently has been abandoned, for it has not been urged upon the court and no such issue is stated in the pretrial order. The legal questions that would arise from it, however, would appear to be finally settled, and in plaintiffs' favor. See New Jersey Interstate Bridge and Tunnel Commission v. City of Jersey City , 93 N.J. Eq. 550 (Ch. 1922). In addition, plaintiffs' brief presents formidable precedents and compulsive argument to establish (a) that The Port Authority is charged with the performance of a governmental function, and that it and its agents and representatives are therefore within the rule that prevents a municipality from restricting the power of the State, its officers or agents, without express statutory language conferring such power upon the municipality; (b) that municipal building ordinances, among other things, are inapplicable to projects of the State or its agencies, unless the projects are made expressly subject to such ordinances by legislation of the State; and (c) that The Port Authority, being an agency of the two states and engaged in the effectuation of a compact between them, is immune from unilateral regulation by a municipality of one of the states.
The decisions that expressly accord to The Port Authority the characteristics of sovereign immunity from suit, and
those that affirmatively recognize it as an arm and agency of the states, include Port of New York Authority v. City of Newark , 17 N.J. Super. 328, 331 (Ch. Div. 1952); Miller v. Port of New York Authority , 18 N.J. Misc. 601, 606 (Sup. Ct. 1939); Howell v. Port of New York Authority , 34 F. Supp. 797, 800 (D.C.N.J. 1940); Port of New York Authority v. Union City , 19 N.J. Misc. 421 (Sup. Ct. 1941); Bush Terminal Co. v. City of New York , 282 N.Y. 306, 26 N.E. 2 d 269 (Ct. App. 1940); Graves v. New York ex rel. O'Keefe , 306 U.S. 466, 484, 59 S. Ct. 595, 83 L. Ed. 927 (1939); Commissioner of Internal Revenue v. Shamberg's Estate , 144 F.2d 998 (2 Cir. , 1944), certiorari denied 323 U.S. 792, 65 S. Ct. 433, 89 L. Ed. 631 (1944); Sullivan v. Port of New York Authority , 134 N.J.L. 124 (Sup. Ct. 1946); Miller v. Port of New York Authority , 18 N.J. Misc. 601 (Sup. Ct. 1939).
The decisions that pronounce the claimed immunity from municipal ordinances and other local regulations include Trustees of Public Schools v. Taylor , 30 N.J. Eq. 618 (Ch. 1879), affirmed sub nom. Trustees of Public Schools v. City of Trenton , 30 N.J. Eq. 667 (E. & A. 1879); Interstate Bridge and Tunnel Commission v. City of Jersey City, supra , at p. 553; Denton v. State of N.Y. , 72 App. Div. 248, 251-253, 76 N.Y.S. 167 (N.Y. 1902); Jewish Hospital of Brooklyn v. Doe , 252 App. Div. 581, 584, 300 N.Y.S. 111 (N.Y. 1937); United States v. Stevenson , 215 U.S. 190, 197, 30 S. Ct. 35, 54 L. Ed. 153 (1909); United States v. Wittek , 337 U.S. 346, 359, 69 S. Ct. 1108, 93 L. Ed. 1406 (1949); United States v. United Mine Workers , 330 U.S. 258, 272, 67 S. Ct. 677, 91 L. Ed. 884 (1947); Kentucky Institution for Education of the Blind v. City of Louisville , 123 Ky. 767, 97 S.W. 402, 8 L.R.A., N.S. , 553 (Ky. Ct. App. 1906); City of Milwaukee v. McGregor , 140 Wis. 35, 121 N.W. 642 (Wis. Sup. Ct. 1909); City of Atlanta v. State , 181 Ga. 346, 182 S.E. 184 (Ga. Sup. Ct. 1935); Kubach Co. v. McGuire , 199 Cal. 215, 248 P. 676 (Cal. Sup. Ct. 1926); Board of Education of City of St. Louis v. City of St. Louis , 267 Mo. 356, 184 S.W. 975
(Mo. Sup. Ct. 1916); Salt Lake City v. Board of Education , 52 Utah 540, 175 P. 654 (Utah Sup. Ct. 1918).
The doctrine that no political subdivision of either of the states bound by the compact has power to impede the performance of the obligation thus mutually undertaken is, of course, implicit in the very nature of the compact itself, not to mention also the ...