This case originated by virtue of a complaint filed by the State Highway Commissioner, plaintiff, acting in his capacity as an agent of the State of New Jersey, against the Union County Park Commission et als., defendants, for the condemnation of lands. Defendant Union County Park Commission (hereinafter Park Commission) has filed an answer and first separate defense contesting the authority of the State, acting through its Highway Commissioner, to acquire the lands by reason of N.J.S.A. 27:7-36.
Plaintiff's need for this particular property arose as a result of congressional action designating a National System of Interstate Highways in 1944. Initially, three interstate routes were selected in New Jersey. However, as a result of subsequent congressional action which expanded the Interstate System, more such routes were submitted by the New Jersey Highway Commissioner in 1955 for approval by the Federal Commissioner of Public Roads. One such additional route
was then designated as Federal Aid Interstate 102. It was to run from the Pennsylvania-New Jersey State line in the vicinity of Phillipsburg easterly to the New Jersey-New York State line in the Holland Tunnel. Formal approval of the general location of Federal Aid Interstate 102 was transmitted to the State Highway Commissioner from the United States Department of Commerce, Bureau of Public Roads, on September 15, 1955.
After this the Legislature of the State of New Jersey, by L. 1956, c. 153 (N.J.S.A. 27:7A-10), authorized the Commissioner to designate as freeways, in accordance with L. 1945, c. 83, routes in the State approved by the United States Department of Commerce, Bureau of Public Roads, as a part of the Interstate Highway System. The State Highway Commissioner thereupon executed a determination and order that the routes approved by the Bureau of Public Roads "be and are hereby designated Federal Aid Interstate Routes as part of the State Highway System." This determination and order included Federal Aid Interstate 102. Copies were forwarded to the Secretary of State and to the county clerks of the counties affected by the alignments. A copy is on file in the office of the Clerk of Union County in Miscellaneous File No. 1654.
After this, feasibility studies were ordered to be made by the Commissioner to settle alignments for the various interstate routes. Pursuant to U.S. Code, Title 23, public hearings were conducted in areas through which the proposed interstate routes would pass. For the section of Federal Aid Interstate 102, now designated as Interstate and Defense Highway Route 78, public hearings were held. One such hearing, embracing the lands in suit, was held in the Regional High School in Springfield on June 30, 1958, after notices thereof were duly published according to law. Eight men representing the Union County Park Commission attended this hearing.
Defendant Park Commission is a body politic of the County of Union, New Jersey, with the authority vested in it by
N.J.S.A. 40:37-33 to locate parks and acquire lands for such parks by purchase, gift, devise or eminent domain. Pursuant to this authority the Park Commission in 1936 acquired by deed the lands involved in this proceeding from the Hartshorn Estate, a now-defunct New Jersey corporation. Since its acquisition this land has been used and held by the Commission exclusively for park purposes.
A little less than four years after the hearing, the Park Commission received a form letter from the State Highway Department advising it that the subject property was needed for highway purposes. The letter also stated that a land negotiator would contact the Park Commission. One-half year later an oral offer by the State Highway Department was communicated to defendant. This offer was for the sum of $161,300 for 16.026 acres of the Hartshorn Tract. Less than six months elapsed between the receipt of this offer and the making of a new offer by plaintiff. On June 12 an offer was made for the sum of $192,300 because of the addition of 2.093 acres not originally mentioned in prior negotiations. In the same letter which communicated this offer it was further mentioned that the negotiator would recommend that an additional 1.170 acres be taken.
After this communication defendant on June 22, 1964 made a formal inspection of the lands in question. At a subsequent meeting on July 20, 1964 it rejected the Highway Department's offer. At this time it was indicated that the negotiations with the Highway Department should, however, be continued.
Defendant furnished the results of its meeting on July 20, 1964 to the Highway Department's negotiator on July 23, 1964. He reported that the negotiations were to be forwarded to the State Highway Department for review.
There was no contact between the parties from July 23, 1964 until May 13, 1965. On the latter date a meeting was arranged between the two bodies for June 7, 1965. After this, defendant took steps to acquire a formal appraisal of the land in question by an expert. It notified plaintiff of this action
and informed it that a formal appraisal would not be available until July 1, 1965. The Park Commission also stated that it would be unable to enter into any agreement for the sale of the subject lands until such an appraisal had been obtained and studied.
Upon notification of this delay, plaintiff on June 29, 1965 filed this complaint for the condemnation of lands owned by defendant. The Park Commission filed an answer and a first separate defense which alleged:
"1. Since the Defendant, The Union County Park Commission is established pursuant to N.J.S.A. 40:37-96 et seq., the Plaintiff is without any legal authority to condemn lands of a park commission established thereunder without the consent of the park commission pursuant to N.J.S.A. 27:7-36. The Defendant, The Union County Park Commission has not given its consent to this action.
WHEREFORE, the Defendant, The Union County Park Commission, demands judgment dismissing complaint filed herein together with costs."
It also filed notice of motion for an order dismissing the complaint. Plaintiff, in turn, also filed a notice of motion to strike the answer and first separate defense.
At a meeting of the Park Commission on July 30, 1965 the State offered $265,000 for the parcels in suit plus the remnant parcel remaining in the Park Commission and again asked for a right of entry at this time pending ultimate decision. The Park Commission rejected the offer and denied the right of entry. At the same time defendant offered to accept $350,000. It is plaintiff's contention that the State cannot meet the price and expect participation of federal funds in view of the appraisal obtained by the state.
The parties agree that in the event that plaintiff is barred by the statute (N.J.S.A. 27:7-36) from acquiring the property in question, the Federal Government may under federal law institute condemnation proceedings to acquire the land -- this because the property is to be acquired for the continuation of Route 78 as an Interstate and Defense Highway Route.
However, this has no bearing on or relation to the decision to be rendered. This court will consider the rights and duties and authority of the State Highway Commissioner and the Union County Park Commission as the same are set out and provided for under state laws and under other laws applicable to sovereign states.
At the outset, this court would like to state that it recognizes the delicate issues involved. On the one side, the New Jersey State Highway Commission, as authorized by law, is attempting to acquire property for the construction of a superhighway which is to serve in peace as a highway for civilian vehicular traffic and in wartime as a defense highway. In opposition, the Union County Park Commission stands as a protector of park property in the wake of the passage of the Green Acres Act.
It is plaintiff's first contention that the Park Commission is a creature of the State, holding powers and privileges subject to the sovereign will. In that connection plaintiff makes the following further assertions: (1) the office of State Highway Commissioner was established by the sovereign, acting through its Legislature, N.J.S.A. 27:1-1; (2) in addition to establishing the office of State Highway Commissioner, the Legislature granted to the holder of such office the power to do whatever may be necessary or desirable to effectuate the purpose of the Highway Act, N.J.S.A. 27:7-21; (3) among the powers granted by virtue of N.J.S.A. 27:7-1 et seq. was the power to condemn lands, N.J.S.A. 27:7-22; (4) by virtue of its establishment and the grant of certain powers, plaintiff claims to be the alter ego of the State; (5) as a result of its position (i.e., as alter ego of the State) plaintiff contends that defendant's plea of N.J.S.A. 27:7-36 is a bar to its condemning county park commission lands is of no effect and, in fact, that N.J.S.A. 27:7-36 is unconstitutional because it attempts to limit or restrict the State of New Jersey from exercising its sovereign power of eminent domain.
In response to plaintiff's first contention, as enumerated above, defendant contends that both the Union County Park Commission and the State Highway Department (i.e., Commissioner) are creatures of the legislative will and that the powers held or withheld by the Legislature are determinative of their respective rights inter se. In support of this contention defendant asserts that plaintiff's claim of being the alter ego of the State is not true and its contention as to the unconstitutionality of N.J.S.A. 27:7-36 incorrect. The rationale for this last assertion is that N.J.S.A. 27:7-36 does not involve a surrender of sovereign power because the Legislature, in adoption of this statute, did not purport to divest itself of the sovereign power to take public park property now or in the future; that the statute merely prevents the Highway Department from taking park property by condemnation; that it is a limitation of the Highway Department's discretion and not a surrender of sovereign power, because one cannot "surrender" what one does not have.
Article III, par. 1 of the 1947 New Jersey Constitution provides that "The powers of government shall be divided among three distinct branches, the legislative, executive and judicial." This is in accordance with our system of checks and balances.
It should be noted at this point that the right of eminent domain is of very ancient origin and is inherent in all governments and requires no constitutional provision to give it force. It is an inherent and a necessary right of the sovereignty of the state. Eminent domain is the rightful authority which exists in every sovereignty to control rights of a public nature which pertain to its citizens in common, and to appropriate and control property for public benefit as the public safety, necessity, convenience or welfare may demand; and under New Jersey law the power of eminent domain lies dormant until called into play by the Legislature. Valentine v. Lamont, 13 N.J. 569, 575, 576 (1953); N.J.S.A. 20:1-1 et seq.
The power of eminent domain is a high sovereign power that has been allotted to the legislative branch of the government since Magna Carta. It has been held that constitutions do not give but merely place limitations upon the power ...