This is a declaratory judgment suit instituted by Rutgers, the State University (hereinafter Rutgers) against the Attorney General of New Jersey seeking a determination that it is not bound by (a) the provisions of N.J.S.A. 52:32-2, which requires the letting of multiple contracts in connection with the construction of public buildings; (b) the provisions of N.J.S.A. 52:35-1 et seq. , which requires the prequalification of bidders on such construction projects, and (c) the provisions of N.J.S.A. 52:34-6 et seq. , which requires public bidding.
The Attorney General contends that each of these statutes applies to Rutgers and seeks a judgment that the University comply with them.
The case is now before the court on cross-motions for summary judgment.
In order to thoroughly understand the present problem and to aid the court in determining the applicability of these statutes a review of the history of Rutgers and the events leading up to the adoption of the Rutgers, the State University Law, L. 1956, c. 61, N.J.S.A. 18A:65-1 et seq. , is necessary. Such a history, up to 1956, is fully incorporated in the opinion of Judge (now Justice) Schettino in Trustees of Rutgers College in N.J. v. Richman ,
41 N.J. Super. 259 (Ch. Div. 1956), and need not be repeated here. Shortly after that opinion was rendered the Rutgers Trustees voted to reorganize under the above act. This then brought about the following important changes in the relationship between Rutgers and the State:
(a) The theretofore private governing board, the Board of Trustees, yielded virtually all management, control, administration and policy-making functions to a newly created and publicly controlled Board of Governors, 6 of whose 11 voting members (majority control) are now appointed by the Governor of the State of New Jersey, with the advice and consent of the Senate. N.J.S.A. 18A:65-12, 14 (emphasis added);
(b) Rutgers' facilities and assets remained impressed with a public trust, their beneficial use being reserved for the higher education of New Jersey residents, and as the instrumentality of the State for the purpose of operating the State University. The corporation retains the legal title N.J.S.A. 18A:65-2;
(c) the private board of Trustees gave up most of its powers, retaining only:
(1) the power to manage and invest private assets or private gifts, with income therefrom channeled to the Board of Governors;
(2) the power to appoint 5 of the 11 voting members of the Board of Governors, and
(3) an "advisory capacity" status (N.J.S.A. 18A:65-13, 15, 26), coupled with a right to withdraw the private assets should they be improperly applied by the Board of Governors or should insufficient state appropriations be forthcoming (N.J.S.A. 18A:65-27).
Contemporaneous with assumption by the State of New Jersey of effective control or hegemony over the University (after the Trustees' acceptance of the reorganization plan, N.J.S.A. 18A:65-37), the State undertook a massive annual funding program subsidizing in great part the school's operating budget and providing the bulk of its construction
costs. This financial lifeline has grown: 1956: $10,356,303 appropriation for operating costs and $800,000 appropriation for capital construction; 1965: $24,537,924 appropriation for operating costs and $1,250,000 appropriation for capital construction; 1966: $28,816,161 appropriation for operating costs and $3,705,000 appropriation for capital construction; 1967: $33,696,587 appropriation for operating costs and $9,189,000 appropriation for capital construction; 1969: $39,292,265 appropriation for operating costs and $8,650,000 appropriation for capital construction; 1970: $47,319,840 appropriation for operating costs and $27,278,000 appropriation for capital construction.
From 1956 to June 30, 1969 Rutgers had an authorized building program in the total amount of $363,441,622. Of that sum, $191,409,841 has come from the State, as noted above. Rutgers has or will supply $85,422,953 from its own money or through borrowing, and the balance of $86,608,828 has or will come from other sources, including the Federal Government and private gifts.
Since 1956 eight buildings having a total cost of $31,145,898, were or are being built entirely without state funds, and only three new construction projects, with a cost of $1,758,449, have been entirely with state funds. During that same period there have been only six instances involving the renovation of or addition to buildings that have been financed solely with state monies, at a cost of $2,215,863. There have also been four landscaping projects with a total cost of $730,565, paid for entirely out of state funds.
The State of New Jersey, then, through the Board of Governors, controls, operates and administers Rutgers. To the extent the private Board of Trustees, because of reserved powers, acts in concert or in partnership with the State in this endeavor, it is a very limited partner with very limited inconsequential leverage. In short, Rutgers' merger into the State and its assumption of state agency or state alter ego status is undisturbed thereby. That the Board of Trustees retains a partial private character is not denied.
The limited supervisory powers of the State Board of Education (now the Board of Higher Education) were continued (N.J.S.A. ...