For affirmance -- Justices Oliphant, Wachenfeld, Burling and Jacobs. For reversal -- Chief Justice Vanderbilt and Justice Heher. The opinion of the court was delivered by Jacobs, J. Vanderbilt, C.J. (dissenting). Mr. Justice Heher has authorized me to say that he joins in this opinion.
The Appellate Division affirmed the summary judgment for the plaintiff which had been entered in the Law Division. See City of Trenton v. Lenzner, 29 N.J. Super. 514 (App. Div. 1954). We granted certification under R.R. 1:10-2.
Trenton's parking problem is a serious one and has been the subject of much concern amongst its officials and citizens. In 1948 its board of commissioners adopted an ordinance which, after setting forth that congested street parking was threatening irreparable loss in valuations and was inimical to the general welfare of the community and that it could be reduced by proper off-street parking facilities, created the Parking Authority of the City of Trenton with the powers and duties provided by L. 1948, c. 198 (N.J.S.A. 40:11 A -1 et seq.). Immediately after its creation, the Authority
began inquiry into the feasibility of establishing new parking facilities within the city. In 1950 it sought to determine the best mid-city site for the creation of a ramp-type garage -- the site recommended was Lenzners' property located on East Hanover and Academy Streets and operated by them as a parking lot. Apparently the same site had been recommended earlier by the planning board. An engineering firm specializing in ramp construction submitted drawings and approximations of costs. The Authority, considering that the costs would exceed its own financial capacities, recommended that the site be acquired by the city under the authority of L. 1942, c. 138 (N.J.S.A. 40:60-25.1). Cf. L. 1949, c. 261 (N.J.S.A. 40:56-1.1).
On May 29, 1952 the board of commissioners adopted an ordinance which determined that the city acquire Lenzners' property, described by metes and bounds, by purchase or condemnation "for the purpose of making the same available to the public for the public parking of vehicles." Thereafter the Lenzners instituted a proceeding in the Law Division which attacked the validity of the ordinance and sought to set it aside. In that action the city moved for summary judgment and its motion was granted. See Lenzner v. Trenton, 22 N.J. Super. 415 (Law Div. 1952). No appeal was taken from the resulting judgment for the city and the Lenzners are bound by it. They are not at liberty to relitigate the issues there involved (Bango v. Ward, 12 N.J. 415, 420 (1953); Templeton v. Scudder, 16 N.J. Super. 576 (App. Div. 1951)); in any event, we are satisfied with the correctness of the determinations there made.
L. 1942, c. 138 expressly provides that the governing body of any municipality may, by purchase or condemnation, acquire lands for the purpose of making them available to the public for the public parking of vehicles. There is no question as to the constitutional validity of this legislation; the state has ample power to delegate to its municipal subdivisions power to take private property for public use upon the payment of just compensation. See Abbott v. Beth Israel Cemetery Ass'n. of Woodbridge, 13 N.J. 528, 545
(1953); Borough of Little Ferry v. Bergen County Sewer Authority, 9 N.J. 536, 543 (1952); Ryan v. Housing Authority of Newark, 125 N.J.L. 336, 341 (Sup. Ct. 1940); Valentine v. Lamont, 25 N.J. Super. 342, 347 (App. Div. 1953), affirmed 13 N.J. 569 (1953). The public use may be proprietary as well as strictly governmental in nature. Cf. Yara Engineering Corp. v. Newark, 132 N.J.L. 370, 373 (Sup. Ct. 1945); Brady v. Atlantic City, 53 N.J. Eq. 440, 448 (Ch. 1895); Jahr, Eminent Domain (1953), 14, 16. What constitutes a proper use will depend largely on the social needs of the times and may change from generation to generation. See Ryan v. Housing Authority of Newark, supra; Texas Pipe Line Co. v. Snelbaker, 30 N.J. Super. 171, 176 (Law Div. 1954); Jahr, supra. Cf. Albright v. Sussex County L. & P. Com., 71 N.J.L. 303, 304 (E. & A. 1904), where Justice Dixon found occasion to remark, shortly after the turn of the century, that the scope of eminent domain had "been much enlarged in recent times to keep pace with the advance in social conditions." In the light of modern conditions, it may no longer be doubted that the maintenance of public parking facilities designed to relieve traffic congestion constitutes a proper public use. See DeLorenzo v. City of Hackensack, 9 N.J. 379 (1952); McSorley v. Fitzgerald, 359 Pa. 264, 59 A. 2 d 142 (1948); Jahr, supra.
While the fact that the property is actually being used for parking purposes by its private owners may have an important bearing on the amount of just compensation to be awarded, it does not limit the authority of the governing body to take it for public parking purposes. Nothing in the broad statutory language suggests any such limitation and there is no reason whatever to reach out for its implication. See Const. 1947, Art. IV, Sec. VII, par. 11; Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 71 (1952). By taking the land the city insures not only that its future use will be public parking, but also that it will be available for the urgently needed increase of its parking facilities by the construction of a suitable ramp garage or otherwise. The fact
that the land is being taken by the city itself rather than the Parking Authority is without significance. When the statute authorizing the creation of the Parking Authority was adopted it did not repeal the pre-existing power of the city under L. 1942, c. 138, to acquire land for public parking. See DeLorenzo v. City of Hackensack, supra. Similarly, when the city created the Parking Authority it did not restrict its own independent power to acquire land for public parking under the terms of L. 1942, c. 138; and when it acquires such land it may itself operate the resulting parking facility or transfer it to the Authority for its public operation in accordance with the terms of the Parking Authority Law (L. 1948, c. 198), or otherwise provide in accordance with law (L. 1954, c. 205, N.J.S.A. 40:60-25.1) for its operation as a public parking facility. See DeLorenzo v. City of Hackensack, supra. Cf. Camden Plaza Parking v. City of Camden, 16 N.J. 150 (1954).
Negotiations for purchase having been unfruitful, the plaintiff City of Trenton filed a complaint in the Law Division, on August 4, 1953, alleging that it had determined that it was reasonably necessary to acquire by condemnation the described property of defendants Isadore Lenzner and Freda Lenzner and demanding judgment and the appointment of condemnation commissioners in accordance with R.S. 20:1-1 et seq. The defendants filed their answer which embodied various separate defenses and the plaintiff filed a reply. Thereafter the plaintiff moved for summary judgment which was heard and considered by the trial judge on the basis of the record before him which included all of the pleadings, affidavits, depositions and exhibits submitted by the parties. Finding that there was no genuine issue as to any material fact challenged and that the plaintiff was entitled to judgment as a matter of law, the trial judge on October 26, 1953 ordered the entry of judgment for the plaintiff for the appointment of condemnation commissioners to fix "the compensation to be paid for the taking of the lands, premises, property, rights and easements described in the complaint, including the damages, if any, resulting from
the taking to any remaining property." It is from this order that the defendants' appeal to the Appellate Division was taken. No question was raised before the Appellate Division or this court as to the immediate appealability of the order that condemnation commissioners be appointed. See Bergen County Sewer Authority v. Bor. of Little Ferry, 7 N.J. Super. 213, 218 (App. Div. ...