For dismissal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Haneman, J.
The State of New Jersey, by the State Highway Commissioner (the State Highway Commissioner) filed a complaint seeking to condemn for highway purposes lands owned by The Union County Park Commission (Union Park Commission). Union Park Commission filed an answer denying that the State Highway Commissioner had legal authority to condemn its lands and moved to dismiss the complaint for the reason that it did not set forth a cause of action. The State Highway Commissioner in turn moved to dismiss Union Park Commission's answer and separate defense. Union Park Commission's motion was denied. The State Highway Commissioner's motion was granted and judgment entered in his behalf. 89 N.J. Super. 202 (Law Div. 1965). Appeal was taken by Union Park Commission to the Appellate Division. While the appeal was there pending unheard, this Court granted Union Park Commission's motion for certification. (R.R. 1:10-1A).
Subsequent to the granting of the State Highway Commissioner's motion, Union Park Commission entered into an agreement with the State of New Jersey for the conveyance of the lands in question. The State Highway Commissioner has not sought dismissal of this appeal for mootness. To the contrary he seeks a final determination of the questions here involved because of their likely recurrence. In view of the public nature of the controverted legal questions
and the likelihood of their recurrence we shall make such a determination. State v. Perricone, 37 N.J. 463 (1962), cert. denied 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2 d 124 (1962); State by State Highway Com'r v. Bd. of Chosen Freeholders of Bergen County, 38 N.J. 33 (1962).
The facts and allegations as disclosed by the pleadings and affidavits are as follows:
The State Highway Commissioner sought to condemn certain lands owned by Union Park Commission and used for park purposes, for the construction of a portion of a state highway which is part of Federal Interstate and Defense Highway Route 78. He alleged that he was authorized by R.S. 27:1-1 et seq., to acquire lands for this purpose by gift, devise, purchase, or by condemnation in the manner provided by R.S. 20:1-1 et seq. He further alleged that he was unable to reach an agreement with the Union Park Commission for the conveyance of said lands and consequently had the authority to proceed by way of condemnation. R.S. 20:1-1.
Union Park Commission, which was organized under R.S. 40:37-96 et seq., admitted the general allegations but asserted that under R.S. 27:7-36 the State Highway Commissioner was barred from acquiring such lands by condemnation without its consent.
In answer to the construction of the statute suggested by Union Park Commission, which would severely restrict the State Highway Commissioner's power to condemn county park lands, the State Highway Commissioner argues that (1) R.S. 27:7-36 in no way limits his power of condemnation and (2) in any event R.S. 27:7-36 was repealed by Laws of 1965, Chapter 79 (N.J.S.A. 27:7-22).
The pivotal question therefore is whether R.S. 27:7-36 in any way serves to limit the State Highway Commissioner in his power to condemn lands owned by a park commission organized under R.S. 40:37-96 et seq. We are therefore first concerned with the meaning and intent of R.S. 27:7-36.
"In the location of state highway routes the commissioner shall not locate, lay out, construct, use or improve any route in, over, under, through or across a park, reservation or parkway owned by or under the control and jurisdiction of any park commission organized under the provisions of sections 40:37-96 to 40:37-174 of ...