On appeal from Superior Court, Chancery Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Brennan. For affirmance -- Justices Burling and Jacobs. The opinion of the court was delivered by William J. Brennan, Jr., J. Jacobs, J. (with whom Burling, J., agrees, dissenting).
The Port of New York Authority has commenced the construction, estimated to cost $90,000,000, of a third tunnel of the Lincoln Tunnel, originally named the Midtown Hudson Tunnel, without having first obtained express authorization for such construction from the Legislatures of New York and New Jersey under section 2 of chapter 4 of the 1931 Laws of New Jersey which in pertinent part provides:
"* * * and 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 Port Authority shall from time to time make studies, surveys and investigations to determine the necessity and practicability of additional vehicular bridges and tunnels over or under interstate waters within the said Port of New York district, and report to the Governors and Legislatures of the two States thereon. The Port Authority shall not proceed with the construction of any additional vehicular bridges and tunnels over or under said interstate waters until hereafter expressly authorized by the two said States."
The case is here on certification of our own motion of the appeal of the Township of Weehawken to the Appellate Division from a judgment of the Chancery Division restraining the township from interfering with the operations of a contractor engaged by the Port Authority to do certain of the tunnel work to be performed in the township. The Chancery Division found no merit in the township's contention that the Port Authority has no authority to construct the third tunnel without the express permission of the Legislatures of the two States. The Port of New York Authority v. Township of Weehawken, 27 N.J. Super. 328 (1953).
We reach a conclusion contrary to that of the Chancery Division. In our view the provision that the Port Authority shall not proceed with the construction of "any additional" tunnel until expressly authorized by the two States applies with perfect directness to the construction of the third tunnel and without such authorization the Port Authority may not lawfully proceed with its construction.
The Lincoln Tunnel is a vehicular crossing under the Hudson River between Weehawken in New Jersey and midtown New York City. It consists of two tunnels, the first completed in 1937 and the second in 1945. Originally estimated to cost $96,000,000, the twin tunnels actually cost $87,000,000. The Lincoln Tunnel is one of three major trans-Hudson River vehicular crossings operated by the Port Authority. The others are the Holland Tunnel between Jersey City and downtown New York City, and the George Washington Bridge between Fort Lee, New Jersey, and the Bronx, uptown New York City.
The plan is that the two existing tunnels and the proposed third tunnel of the Lincoln Tunnel will be a single integrated facility. The 1950 Annual Report of the Port Authority to the Governors and Legislatures of the two States, filed in compliance with R.S. 32:1-8, informs us that "The two lane third tube, when completed, will be operated in an eastbound direction, and the north tube westbound; the middle or present south tube will carry traffic eastbound in the morning and westbound in the evening, or may operate one lane in each direction. This permits the use of four lanes in the peak direction with two lanes in the opposite direction."
The third tunnel is not projected merely to improve the service at the Lincoln Tunnel crossing. In a substantial way it is tantamount to if not actually a substitute for a new trans-Hudson River crossing. It is designed specifically to relieve in a measurable degree the acute trans-Hudson River vehicular traffic problem which has worsened annually in alarming proportions since the end of World War II.
The Port Authority operates upon principles embodied, upon its recommendations, in the 1931 statute. Fundamentally those principles reflect the concept that maximum advantage of the commercial and industrial potential of the Port district is to be realized from a coordinated and carefully planned attack upon the entire Port district vehicular transportation problem through provision of an integrated and self-supporting system of interstate crossings financed through the pooling of the revenues from all units and constructed and operated by a single agency for maximum efficiency and economy. There is common agreement that, under Port Authority administration, the policy has proved highly beneficial to the welfare and economy of the Port district.
The 1931 plans for the Lincoln Tunnel forecast that it would "approach its capacity traffic volume in 1946" and that the "total trans-Hudson traffic in 1948 will be 75,000,000 vehicles." The Port Authority's 1952 Annual Report shows that actually 73,344,791 vehicles used "the Port Authority's
six crossings in 1952" and remarks the "heavy uptrend so persistent since World War II." Also noted was the shift of "trans-Hudson traffic northward to the George Washington Bridge and Lincoln Tunnel and away from the Holland Tunnel," a result of the "opening of the New Jersey Turnpike." The Bridge traffic was up 18.8% over 1951 and Lincoln Tunnel traffic up 12.1%. Holland Tunnel traffic showed a decline of 4.3%, and the Staten Island crossing also registered a slight decline. It was in this setting that the third tunnel was projected in 1950 as a "great contribution toward unravelling the interstate traffic snarl in the Port District." Certainly, more than a mere adjunct, a simple addition or improvement, to the existing crossing is in view. "Upon its completion, scheduled for 1957," continues the Annual Report, "The third tube ...