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Port of New York Authority v. Heming

Decided: January 23, 1961.


For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis and Hall. For reversal -- Justices Proctor and Schettino. The opinion of the court was delivered by Francis, J. Proctor, J. (dissenting).


[34 NJ Page 147] These proceedings were instituted by plaintiff, The Port of New York Authority, under R.S. 32:1-132 as amended L. 1956, c. 156, to condemn certain lands of defendants, Elizabeth M. and John A. Cervieri, husband and wife, (as well as lands of other persons) for use in connection with its undertaking to add an additional deck to the interstate George Washington Bridge. Defendants' demand for a jury trial on the issue of compensation to be awarded for the taking was denied on the ground that under the statute referred to the method of procedure being pursued by the Authority did not provide for trial by jury. After damages had been awarded by the Law Division of

the Superior Court, the Cervieris appealed to the Appellate Division from part of the judgment, contending primarily that the option granted by the Legislature to the Authority of selecting one of two alternative procedures in condemning their property deprived them of equal protection of the law in violation of the state and federal Constitutions. Before argument there the matter was certified on our own motion for disposition by this court.

The action to condemn defendants' property for the purpose indicated was instituted on July 28, 1958. The complaint recited that the Authority elected "pursuant to the option accorded to it" by N.J.S.A. 32:1-132 to proceed under the air terminal act, R.S. 32:1-35.15 and not under the general eminent domain act, N.J.S.A. 20:1-1 to 36. Immediate fee simple title and possession were demanded. An order to show cause why the relief prayed for should not be granted, returnable September 5, 1958, was issued by the Superior Court, Law Division, and served upon the various parties involved. On the return day, the Cervieris appeared without counsel and an order was entered awarding title of the several properties described in the complaint to the plaintiff, making provision for possession thereof and directing plaintiff to bring on "a hearing to have this Court either (a) determine without a jury after view of said property the compensation which should justly be made to the owner or respective owners thereof and thereafter enter a judgment in the amount so determined, or (b) in the alternative to have this Court appoint three advisory commissioners to view said real property and to advise on or before a date to be specified by the Court of the damages, if any, which should be assessed for the taking of said real property." (Emphasis added)

Some time prior to the hearing to fix the damages these defendants served and filed a notice that they would apply at the hearing for a trial by jury. The motion was made and denied because the Authority had elected to condemn in accordance with the procedure prescribed by the airport

terminal law which gave neither party to the action a right to trial by jury. The matter was then heard, damages were awarded, and this appeal followed.

The Authority has moved to dismiss the appeal, contending that the demand for jury trial and the attack upon the constitutionality of the election bestowed upon it with respect thereto should have been made immediately after the service of the complaint and order to show cause upon the defendants. The claim is that since title and possession had vested in it within six weeks after defendants were served, their jury demand about a year and a half later came too late. But defendants disclaim any effort or intention to interfere with the transfer of title or possession. The request for a jury was pertinent only to the issue of damages and was made only as to that aspect of the case. Furthermore, reversal of the judgment would not divest the title. N.J.S.A. 32:1-35.15(l). Under the circumstances lapse of time does not foreclose consideration of the problem. Accordingly, the motion to dismiss is denied.

Study of the merits of the appeal requires reference to various clauses of the Constitutions and to a number of informative statutes.

Acquisition of property for public use by the state, county, municipality, or a public agency is generally controlled by the eminent domain act, R.S. 20:1-1 to 36. But for a few changes that act traces back substantially in its present form to L. 1900, c. 53. When property is desired for public use and the parties cannot agree upon the price, the value is required to be ascertained in the manner directed thereby "except as otherwise provided by law." R.S. 20:1-1. Provision is made for the appointment by the Superior Court of three commissioners to fix the compensation to be paid. When they have done so in the manner prescribed and filed their report with the court, either the public body or the land owner may appeal therefrom. N.J.S.A. 20:1-2 to 16. Such appeal must be tried in the Superior Court "by a jury upon the demand of any party" thereto. N.J.S.A.

20:1-20. After the advent of the 1947 Constitution this court in 1953 implemented the general act through its Rules of Civil Practice. R.R. 4:92-1 to 13. Provision was made for jury trial on appeal from the award of commissioners on demand of any party. R.R. 4:92-6.

The Port of New York Authority is a public corporate entity, an arm of the States of New York and New Jersey, created in 1921 by compact between them for the purpose of coordination and development of the terminal, transportation and other facilities of commerce in, about and through the port of New York. R.S. 32:1-1. It was given the power of condemnation by R.S. 32:1-33, and by R.S. 20:1-1 to 33 a legislative mandate was imposed to exercise the power according to the procedure prescribed by the eminent domain act, supra. Moreover, by specific reference the same procedure was made applicable to property to be condemned for the Bayonne Bridge, the Outerbridge Crossing, and construction of the Goethals Bridge. L. 1925, c. 97, R.S. 32:1-100; L. 1925, c. 193, R.S. 32:1-47; L. 1925, c. 195, R.S. 32:1-59. In addition, and more pertinent to the present case, construction of the George Washington Bridge was authorized by L. 1925, c. 41, R.S. 32:1-71. Section 7 of the act also required any condemnation proceedings necessary to the accomplishment of that end to be brought under the eminent domain act. R.S. 32:1-77.

L. 1931, c. 4 among other things legislated with regard to the acquisition by condemnation of any real property that might be necessary for the construction of bridges or tunnels or for the making of additions or improvements to bridges or tunnels already in existence. Section 15; N.J.S.A. 32:1-132. Authorization was given to secure such property by use of the eminent domain act.

In 1947 the Authority was empowered to acquire property by condemnation for air terminal purposes. L. 1947, c. 43, N.J.S.A. 32:1-35.15. The act provides its own procedure to be employed in so doing. Upon the filing in the Superior Court of a complaint seeking condemnation and after compliance

with certain formalities as to notice, and the like, an application must be made to the appropriate judge to fix a date for hearing on the compensation to be paid. The matter is then heard by a judge who shall determine "without a jury and with or without a view of the real property" the issue of valuation. N.J.S.A. 32:1-35.15(i). He may appoint three commissioners to view the lands and "advise" him what damages, if any, shall be awarded. If appointed:

"The commissioners shall proceed under such directions and rules as shall from time to time be fixed by the said judge to view the lands, to hear such evidence as they may desire, and to fix such sum, if any, that in their judgment will represent the fair value of the lands so taken. * * *." N.J.S.A. 32:1-35.17 a.

The judge is not bound by the commissioners' findings. He may review them and alter or reject them in such manner as will fairly protect the interests of the parties, and his "review may be made either with or without further hearing." Ibid. After the judge has ascertained the compensation to be paid, judgment in that amount is to be entered. Any party aggrieved by the judgment "may appeal." Sections 15 f-l, as amended L. 1953, c. 31, N.J.S.A. 32:1-35.15 f-l. Such an appeal would be heard in the Appellate Division.

Section 15 of the 1931 act, N.J.S.A. 32:1-132, relating, as has been indicated above, to the construction of and to the making of additions or improvements to existing bridges and tunnels, and the acquisition of any necessary land therefor by means of the procedure established by the eminent domain act, was amended by L. 1956, c. 156. The amendment is the cause of the present controversy. It did not repeal the direction to proceed in condemnation under the eminent domain act but it granted to the Authority the "option" to pursue that statute or the procedure created by the air terminal act, supra. More specifically, the amendment authorized the Authority to condemn pursuant to "Revised Statutes of New Jersey, Title 20:1-1 et seq. in the case of property located in * * * [New Jersey], or at the option of the Port Authority as provided in section 15

of chapter 43 of the laws of New Jersey, 1947, as amended for the condemnation of real property for air terminal purposes * * *." N.J.S.A. 32:1-132.

As the result of the 1956 amendment, therefore, the Legislature, presumably having in mind the provision of Section 1 of the eminent domain act, R.S. 20:1-1, that it shall control the exercise of the power of eminent domain "except as otherwise provided by law," made available two procedural mechanisms for condemnation cases. Thus, if the Authority decided to proceed under the eminent domain act commissioners would be appointed to value the property. If the parties were satisfied with the award, that would end the matter. If, however, either was dissatisfied, an appeal to the Law Division of the Superior Court could be taken and a trial de novo had with or without a jury, at the option of either party. Or if the Authority elected to proceed under the airport terminal act, the matter could be heard expeditiously by the Law Division (with or without preliminary appointment of advisory commissioners) and any damages arising from the taking ascertained. When the latter course is followed, neither party can demand trial by jury. In the present instance, the Authority having chosen to take defendants' land under the air terminal act, trial by jury of the issue of damages was not open to either litigant.

The first question to engage our attention arises from defendants' contention that the option clause of the 1956 amendment of Section 15 transgresses Article IV, Section 7, paragraph 5, of the New Jersey Constitution because it incorporates therein by reference only the condemnation procedure formula of the air terminal act. The claim is that since the Constitution provides that "No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of the act or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act," the failure to set out the pertinent sections of the air terminal act at length in the amendment invalidates it.

The law has long been settled to the contrary with respect to enactments like this one. A statute which incorporates a prior act by reference in order to create some substantive right or duty offends against the Article. But one which adopts by reference only the method of procedure necessary to effectuate its purposes is not prohibited. Anthony v. Rea, 22 N.J. Super. 452, 456 (App. Div. 1952); Jersey City v. Martin, 127 N.J.L. 18, 23 (E. & A. 1940); Hutches v. Borough of Hohokus, 82 N.J.L. 140, 142 (Sup. Ct. 1911); Campbell v. Board of Pharmacy of New Jersey, 45 N.J.L. 241, 244-245 (Sup. Ct. 1883), ...

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