For dismissal -- Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt and Justice Wachenfeld. The opinion of the court was delivered by Jacobs, J. Vanderbilt, C.J. (dissenting).
On July 14, 1954 the Town of Bloomfield filed a complaint in the Chancery Division alleging that the New Jersey Highway Authority was about to construct service areas along the Garden State Parkway at points which had been zoned by the Town for residential purposes; it sought an injunction and a declaration that the Authority was subject to local zoning and building regulations in the erection of restaurants and gasoline stations at service areas along the Parkway within the territorial limits of the Town. The Authority moved that the proceeding be transferred to the Appellate Division on the ground that the Town was seeking to review the final decision or action of a state administrative agency within the meaning of R.R. 4:88-8; on August 31, 1954 an order was signed transferring the cause.
In the Appellate Division the parties filed an agreed "statement of the facts and a definition of the issue upon this appeal." This set forth that the plaintiff is a municipal corporation vested with the powers conferred by R.S. 40:1-1 et seq.; the defendant is a body corporate and politic created
by R.S. 27:12 B -1 et seq.; the defendant is engaged in the construction of the Garden State Parkway which extends "for a distance of five miles, more or less, within the boundaries of the Town of Bloomfield, traversing various use and volume zones"; the chief engineer of the Authority approved the location of "parkway service areas, including restaurants, gasoline service stations, maintenance and police structures, upon a tract of land of approximately 22 acres, at a site in Bloomfield"; the Town of Bloomfield voiced its objections "and from time to time changes were made in the number and arrangement of" the structures to be constructed; the site approved by the chief engineer is in the small-volume residential zone as established by Bloomfield's zoning ordinance and is in the vicinity of one-family dwelling houses; and "the legal question to be resolved" is whether or not the defendant is authorized to develop the proposed service areas "over the objection of the plaintiff and in disregard of its Zoning Ordinance."
After the cause was transferred to the Appellate Division we certified on our own motion under R.R. 1:10-1. The parties have not raised the jurisdictional or procedural questions which bear on the transfer and certification and we shall not deal with them. With reference to the transfer, compare Petrucelli v. Department of Civil Service of New Jersey, 28 N.J. Super. 572 (App. Div. 1953) with New Jersey Used Car Trade Ass'n v. Magee, 1 N.J. Super. 371 (Ch. Div. 1948); Abelson's, Inc. v. New Jersey State Board of Optometrists, 3 N.J. Super. 332 (Ch. Div. 1949), modified 5 N.J. 412 (1950). With reference to the certification see Const. 1947, Art. VI, § 5, par. 1(d); Const. 1947, Art. VI, § 5, par. 3; Brookchester, Inc., v. Ligham, 17 N.J. 460, 462 (1955); Stuyvesant Town, Inc., v. Ligham, 17 N.J. 473, 474 (1955). Nor shall we deal with the suggestion that the Authority may have abused its discretionary powers in choosing the particular site selected rather than some other site along the Parkway. That issue is not before us either evidentially or under the pleadings and agreed statement. If the Authority is not bound by Bloomfield's zoning ordinance
then its choice of site rests within its discretion and will not be upset except upon "an affirmative showing of fraud, bad faith or manifest abuse." City of Trenton v. Lenzner, 16 N.J. 465, 473 (1954), certiorari denied 348 U.S. 972, 75 S. Ct. 534, 99 L. Ed. (1955); Burnett v. Abbott, 14 N.J. 291, 294 (1954); City of Newark v. New Jersey Turnpike Authority, 7 N.J. 377, 381 (1951). In the proceeding before us no such showing has been attempted and no fair opportunity for refutation has been afforded; we shall, therefore, confine ourselves to the single issue properly before us, viz.: is the Authority legally prohibited by the local zoning ordinance from constructing its proposed service areas along the Parkway in Bloomfield.
In his First Annual Message after the adoption of the Constitution of 1947, Governor Driscoll pointed out that our highway requirements were so acute and the current income of the State so limited that it was necessary to consider alternative methods for the financing and construction of needed "freeways, parkways and inter and intra-city and township highways." He later recommended that the Legislature authorize the creation of the New Jersey Turnpike Authority and such action was taken in chapter 454 of the Laws of 1948. The Authority was declared to be "an instrumentality exercising public and essential governmental functions" and was modeled upon similar bodies in other states. Indeed, the use of such independent agencies is nothing recent but was well known in early English and American history. See De Lorenzo v. City of Hackensack, 9 N.J. 379, 385 (1952); Webb, Statutory Authorities for Special Purposes, 17, 152 (1922). Cf. Coons, The Development of Public Corporations in Economic Enterprise, 206 The Annals 161 (1939). In his discussion of Authorities And How to Use Them, 8 Tax Review 47 (1947), Luther Gulick discusses the policy arguments pro and con; one of the familiar arguments pro is that the Authority "can reach across political boundaries, across city lines, county lines and even state lines, without raising the stubborn problems of annexation or fulminating the explosive passions of entrenched political organisms." In
any event, these policy arguments admittedly are for the Legislature and not for this court which found little difficulty in sustaining the basic constitutionality of the legislation. See New Jersey Turnpike Authority v. Parsons, 3 N.J. 235 (1949).
Pursuant to the enabling legislation of 1948 the Authority was organized and the 118-mile Turnpike was completed in due time thereafter. The success of its self-liquidating operations and the benefits which it has conferred upon our State and its people are now well recognized. In the course of its construction, it met with local resistance and on several occasions the contention was raised (though never pressed to litigation) that it was subject to local zoning or building ordinances. Apparently this occurred in connection with the construction of an administration building and a housing maintenance building in Central Jersey and a service area in North Jersey. Almost 30 years earlier a similar contention had been unsuccessfully advanced by the City of Jersey City in connection with the building of what is now the Holland Tunnel. See New Jersey Interstate Bridge & Tunnel Comm. v. Jersey City, 93 N.J. Eq. 550 (Ch. 1922). In holding that the Interstate Bridge and Tunnel Commission was not subject to the city's building code, Chancellor Walker expressed pertinent principles which are now well settled:
"Municipalities are the creatures of the state and the powers given to them are always subject to be abridged or repealed by the sovereign who conferred them. See Eastern Telephone & Telegraph Co. v. Board of Public Utility Com'rs, 85 N.J.L. 511. The building code of Jersey City was of course enacted subject to the power of the state to modify or annul it at any time. And the state, in the act creating the bridge and tunnel commission and clothing it with power to provide for interstate bridges or tunnels, with all the powers appropriate and necessary for the proper performance of such duties, without any limitation as to municipal control, overrode that code to the extent of nullifying its provisions so far as they required compliance with them by the state.
Statutes in derogation of sovereignty, such as those conferring powers on corporations, are to be strictly construed in favor of the state, and are not permitted to divest the state or its government of any of its prerogatives, rights or remedies, unless the intention of the Legislature to effect such object is clearly expressed in the
statute. 36 Cyc. 1177. No public right can be taken away by mere inference or legal construction. Water Commissioners of Jersey City v. Mayor, etc., City of Hudson, 13 N.J. Eq. 420. It will be noticed that there is no saving clause in the act creating the bridge and tunnel commission, whereby its powers are to be affected by municipal ordinances. As already seen, this tunnel project is an extension of the state highway system, and the control of highways by municipalities is always subject to paramount control by the state itself. Water Commissioners of Jersey City v. Mayor, etc., City of Hudson, supra; Barnes v. Essex County Park Commission, 86 N.J.L. 141."
See also Port of New York Authority v. Weehawken Tp., 27 N.J. Super. 328, 333 (Ch. Div. 1953), reversed 14 N.J. 570 (1954), where Judge Drewen collected many decisions throughout the country which support the view that independent state and bi-state authorities are generally immune from "municipal ordinances and other local regulations."
In Mayor, etc., Elizabeth v. New Jersey Turnpike Authority, 7 N.J. Super. 540 (Ch. Div. 1950), the court readily rejected an attempt by Elizabeth to prevent construction of the Turnpike along the route through the city which had been designated by the Turnpike's officials within the statutory delegation, and in City of Newark v. New Jersey Turnpike Authority, 12 N.J. Super. 523 (Ch. Div. 1951), affirmed 7 N.J. 377 (1951), the court dealt in like fashion with a similar attempt by Newark. In the latter case Chief Justice Vanderbilt pointedly remarked (7 N.J., at 387) that "the idea that any and every municipality along the route of the proposed turnpike could effectively veto either its location or the manner of its construction by ...