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Port of New York Authority v. Public Service Electric and Gas Co.

Decided: October 1, 1962.


Conklin, J.s.c.


These actions were consolidated at the time of pretrial, as they involved common questions of law and could be conveniently tried together.

The Port of New York Authority, hereinafter called "Port Authority," was created by compact between the State of New Jersey and the State of New York with the approval of Congress. The Public Service Electric and Gas Company, hereinafter called "Public Service," is a privately owned utility corporation of the State of New Jersey engaged in the sale of gas and electricity. The New Jersey Bell Telephone Company, hereinafter termed "Bell Telephone," is also a privately owned utility engaged in furnishing communication services to the public. Both defendants maintain facilities in street and highway right of ways for the dispensing of their services to the public. The Port Authority seeks by these two actions the recovery of money paid to the defendants under various agreements for the removal and relocation of utility facilities of defendants.

The plaintiff had "directed" the removal and relocation of the facilities in question. The defendants refused to comply

with the "directives," expressing the belief that they, as privately owned public utilities, had the lawful right to maintain the facilities in the various locations and the plaintiff was without lawful right to direct their removal. However, the defendants expressed a willingness to make the relocations or removals if the plaintiff would pay the costs and expenses connected therewith. The plaintiff agreed to and did make the necessary payment of costs and expenses, reserving the right to institute such litigation as it might deem necessary to determine its legal obligation, if any, to make such payments.

The issue before this court is whether the Port Authority has the power to compel the defendant utilities to remove and relocate their facilities at their own expense. Therefore, it is necessary to determine whether any legislation has expressly or impliedly delegated to the Port Authority a power to require uncompensated utility relocation in the public streets or whether the Port Authority has been assigned a status giving it such power as a common-law or inherent right. The express powers given to the Port Authority (R.S. 32:1-7) were only those which were necessary to sustain contractual validity of its acts in purchasing, constructing, leasing and operating terminal or transportation facilities. The following section (R.S. 32:1-8) states that the Port Authority "shall have such additional powers and duties as may hereafter be delegated to or imposed upon it from time to time by the action of the legislature of either state concurred in by the legislature of the other."

Even in those areas originally designated as the prime concern of the Port Authority, i.e. , establishing "a comprehensive plan for the development of the port" (R.S. 32:1-7) and making "rules and regulations * * * for the improvement of the conduct of navigation and commerce" (R.S. 32:1-19), its actions were completely ineffective unless approved, concurred in, or authorized by the legislatures of both states. Hence, the language of the compact (R.S. 32:1-1 through 32:1-24) would suggest the creation of a

corporate entity for a public rather than a private purpose -- however, a public entity to which the legislatures would delegate specific governmental powers only if they so elected and only by express language.

The power to require uncompensated relocation of utility facilities maintained in the public street by governing body resolution after hearing upon notice is expressly given to the municipalities of the State. R.S. 40:67-7. Despite the fact that the Port Authority is to "be regarded as a municipal corporate instrumentality" of New York and New Jersey (R.S. 32:1-33), the Port Authority cannot be regarded as deriving its powers as a municipality from Title 40, for the Legislature has found it necessary to give the Port Authority even the most basic indicia of a municipal body by express legislation. N.J.S.A. 32:1-154.1 et seq.

The Port Authority contends that the grant of "all necessary and appropriate powers" (R.S. 32:1-33) constitutes the granting of very broad police powers to it as a governmental agency of the State. Defendant utilities urge that a grant of sovereignty is not effectuated in such a vague manner under New Jersey law.

"The State has sovereign and absolute jurisdiction and control of the roads, streets and highways within its borders. Supervision and control of public highways is exercisable directly by the Legislature, and indirectly by the municipalities and other local governmental agencies to whom the power has been delegated. The local governing body has in this behalf only such powers as have been delegated by the State's legislative body." Hackensack Water Co. v. Ruta , 3 N.J. 139, 146 (1949)

If the effect of the "all necessary and appropriate powers" clause was as plaintiff contends, it would have been idle for the Legislature to have expressly granted specific powers necessary for the operation of its bridges and tunnels. For example, having charged the plaintiff to build and operate a bridge for vehicular traffic and to charge tolls for it, if the above quoted section had the effect which plaintiff claims, there would have been no reason for the Legislature specifically to approve and make effective the Port Authority's

rules and regulations on tolls, as it did in N.J.S.A. 32:1-128, R.S. 32:1-147 (now N.J.S.A. 32:1-154.2), and R.S. 32:2-25. In addition, it would have been unnecessary expressly to authorize penalties against those who violated its regulations and to permit these violations to be prosecuted in the local municipal courts. These powers are eminently more necessary and appropriate for the Port Authority than the power to compel utility companies to pay part of the cost of the construction of the bridges and tunnels. However, the fact that the Legislature did grant these powers expressly is consistent with its whole practice of leaving no significant intended power to rest on implication.

In the absence of specific legislative authorization, the Port Authority was found to lack the power to construct a third tube for its already existing Lincoln Tunnel. Port of N.Y. Auth. v. Weehawken Tp. , 14 N.J. 570 (1954). The court stated at page 577 that "so all-encompassing a delegation of power in a matter of such public importance and consequence should not be lightly inferred but ought plainly appear."

Therefore, it is concluded that the Legislature not only declined to give express authority to the Port Authority to compel uncompensated relocation, but also that those general powers given should not be inferred to extend beyond the incidental aspects of the Port Authority's functions.

With respect to the George Washington Bridge, the New Jersey Legislature was explicit in commanding that all expenses of constructing that facility, including even those for incidental purposes, be paid for by the Port Authority. In connection with the construction of the bridge, the States of New Jersey and New York provided for a loan of not more than ...

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