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New Jersey Sports & Exposition Authority v. McCrane

Decided: May 12, 1972.

NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFF-RESPONDENT,
v.
JOSEPH M. MCCRANE, JR., ETC., LOUIS MONTENEGRO, ET AL., DEFENDANTS-APPELLANTS. HENRY CHEVAL, ET AL., PLAINTIFFS-APPELLANTS, V. STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS. MONMOUTH PARK JOCKEY CLUB, PLAINTIFF-APPELLANT, V. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, DEFENDANT-RESPONDENT. JAMES L. PLOSIA, ET AL., PLAINTIFFS-APPELLANTS, V. NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DEFENDANT-RESPONDENT



For affirmance: Justices Jacobs, Francis, Schettino and Mountain. For modification: Chief Justice Weintraub and Justices Proctor and Hall. The opinion of the Court was delivered by Francis, J. Weintraub, C.J. (concurring in part and dissenting in part). Proctor, J., joins in this opinion. Hall, J. (concurring in part and dissenting in part).

Francis

[61 NJ Page 7] These actions sought a judicial declaration as to the constitutionality of the New Jersey Sports & Exposition Authority Law. L. 1971, c. 137, N.J.S.A. 5:10-1 et seq. After a comprehensive review of the various claims of invalidity, Judge Pashman of the Superior Court, Law Division, found no trespass on the Constitution, and entered summary judgment so holding. We certified the ensuing appeal prior to argument in the Appellate Division, and now, being substantially in agreement with the legal principles applied by Judge Pashman, affirm the judgment entered by him. New Jersey Sports & Exposition Authority v. McCrane, 119 N.J. Super. 457 (Law Div. 1971). However, variations and enlargements of the arguments made below call for some further discussion here.

One of the most delicate tasks a court has to perform is to adjudicate the constitutionality of a statute. In our tripartite form of government that high prerogative has always been exercised with extreme self restraint, and with a deep awareness that the challenged enactment represents the considered action of a body composed of popularly elected representatives. As a result, judicial decisions from the time of Chief Justice Marshall reveal an unswerving acceptance of the principle that every possible presumption favors the validity of an act of the Legislature. As we noted in Roe v. Kervick, 42 N.J. 191, 229 (1964), all the relevant New Jersey cases display faithful judicial deference to the will of the lawmakers whenever reasonable men might differ as to whether the means devised by the Legislature to serve a public purpose conform to the Constitution. And these cases project into the forefront of any judicial study of an attack upon a duly enacted statute both the strong presumption of validity and our solemn duty to resolve reasonably conflicting doubts in favor of conformity to our organic charter. Moreover, the conclusions reached in such cases demonstrate that in effectuating this salutary policy, judges will read the questioned statute as implying matters requisite to its constitutional viability if it contains terms which do not exclude such requirements.

The judicial branch of the government does not and cannot concern itself with the wisdom or policy of a statute. Such matters are the exclusive concern of the legislative branch, and the doctrine is firmly settled that its enactment may not be stricken because a court thinks it unwise. Holster v. Board of Trustees of Passaic County College, 59 N.J. 60, 66 (1971); New Jersey Mortgage Finance Agency v. McCrane, 56 N.J. 414, 422 (1970); Clayton v. Kervick, 52 N.J. 138 (1968); Roe v. Kervick, supra, 42 N.J. at 229; Fried v. Kervick, 34 N.J. 68, 74 (1961); Am. Budget Corp. v. Furman, 67 N.J. Super. 134 (Ch. Div.), aff'd o.b. 36 N.J. 129 (1961); 16 Am. Jur. 2d,

Constitutional Law, § 109, pp. 294-295 (1964). In emphasizing the common sense of these controlling general principles, in his dissent in McCutcheon v. State Building Authority, 13 N.J. 46, 79 (1953),*fn1 Justice Jacobs quoted the striking language of Justice Holmes in Missouri, Kan. & Tex. Ry. Co. of Tex. v. May, 194 U.S. 267, 270, 24 S. Ct. 638, 48 L. Ed. 971, 973 (1904):

Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.

The statute challenged here, the New Jersey Sports & Exposition Authority Law, was adopted to bring about the construction, operation and maintenance of a sports complex on a site not to exceed 750 acres in the Hackensack meadowlands. The Legislature envisioned and authorized the development and operation on the site selected a project consisting of "one or more stadiums, coliseums, arenas, pavilions, stands, field houses, playing fields, recreation centers, courts, gymnasiums, club houses, a race track' and other structures and facilities suitable for the holding of sporting events, trade shows, other expositions or public meetings. Provisions were made also for roads, approaches, driveways, parking areas, transportation structures, systems and facilities, and all other appurtenances necessary or complementary to operation of the project. L. 1971, c. 137, § 6, subd. a.

To create and administer the complex, the Act established in the Department of Community Affairs the New Jersey Sports & Exposition Authority to consist of the State Treasurer, the Attorney General, a member of the Hackensack Meadowlands Development Commission, and four public members to be appointed by the Governor with the advice

and consent of the Senate. The Authority was "constituted as an instrumentality of the State exercising public and essential governmental functions;' its exercise of the powers conferred by the Act was declared to be an essential function of the State and by express mandate, application of "the revenue derived from the project to the purposes provided in this act [was to] be deemed and held to be applied in support of government.' L. 1971, c. 137 § 4, subds. a, b.

As constituted the Authority is a financially self-sustaining governmental instrumentality. It is empowered to issue bonds or notes to finance costs of construction of the project. Interest and principal of the bonds or notes are to be met out of the fees, rents and other charges for admission to or use of the facilities and from the grant of any concessions therein. L. 1971, c. 137, §§ 10, 11. The immediate financial key to the Authority's initial as well as long term operation is establishment of a horse race track with pari-mutuel wagering. Revenues from such wagering (as well as from the total complex upon construction) will be used for expenses of operation and maintenance of the track, the entire complex, payment of interest and principal of the bonds or notes, and certain payments to municipalities whose land is acquired for the complex. Any balance remaining must be deposited in the General State Fund, 40% of which is appropriated to the Meadowlands Commission for any of its purposes as authorized by Chapter 404, Laws of 1968, N.J.S.A. 13:17-1 et seq. Since the revenues from the pari-mutuel wagering, except for the mandated allocations, will be used for the construction of the various facilities of the total complex and their subsequent maintenance, the Attorney General stipulated that there will be no balance thereof remaining for deposit in the General State Fund under Section 6, subd. b(6) of the Act.*fn2

It may be noted here also that Section 7f provides that distribution of sums deposited in pari-mutuel pools to winners thereof and payments from the remaining balances in such pools for stakes, purses or rewards and special trust accounts for breeding and development of horses, shall be in accordance with L. 1940, c. 17, N.J.S.A. 5:5-22 et seq., the Racing Commission Act. In addition, as an initial payment to the State, an amount equal to 1/2 of 1% of all pari-mutuel pools must be deposited annually in the General State Fund. All amounts remaining in pari-mutuel pools after such distribution become revenue of the Authority.

Bonds or notes issued by the Authority are negotiable and are general obligations payable out of any of its revenues or funds, subject only to any agreement with the holders of the particular bonds or notes pledging any particular revenues or funds. L. 1971, c. 137, § 10, subds. b, c. They may be sold at public or private sale and must mature and be paid not later than 40 years from their inception date. Their issuance by the Authority is not subject to the consent of any department, division, or agency of the State, nor to any other proceedings or conditions except those specified in this Act. L. 1971, c. 137, § 10, subds. e, f. For purposes of the present case, a major provision respecting the nature of the bonds or notes is that they shall be debts of the Authority only and under no circumstances debts of the State or any of its political subdivisions. On the face of each note there shall be a statement that:

[T]he authority is obligated to pay the principal thereof or the interest thereon only from revenues or funds of the authority and that neither the State nor any political subdivision thereof is obligated to pay such principal or interest and that neither the faith and credit nor the taxing power of the State or any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds or notes.

L. 1971, c. 137, § 10, subd. g (Emphasis added).

In order to secure payment of any bonds or notes any resolution of the Authority authorizing them may include provisions

therein which shall constitute covenants by the Authority and contracts with the holders of the bonds. For example, such provisions may pledge all or any part of the Authority's revenues or funds, may agree to mortgage all or any part of the property, may covenant as to the establishment and levying of rates and other charges, the amount to be raised each year or other period of time by tolls or other revenues and as to the use and disposition thereof. They may limit the powers of the Authority to construct, acquire or operate any facilities or properties which may compete or tend to compete with the project. L. 1971, c. 137, § 11. It is important to note, however, that by Section 15 the State pledges and agrees with the bond or note holders that it will not in any way that would jeopardize the interest of such holders, limit or alter the rights or powers vested in the Authority to acquire, construct and maintain the project or to perform the terms of any agreement made with them, or to establish, charge and collect such rents, fees and other charges as may be convenient or necessary to product sufficient revenues to meet all expenses of the Authority and fulfill the terms of any agreement made with such holders, until the bonds, together with interest thereon "are fully met and discharged or provided for.' The Authority may be dissolved by the Legislature but only on condition that there are no debts or obligations outstanding or that provision has been made for their payment or retirement. Upon any such dissolution all property and assets become vested in the State. L. 1971, c. 137, § 4, subd. h.

The above outline brings the substance of the statute into sufficient focus for consideration of the contentions of constitutional invalidity which particularly engaged our attention at the argument and reargument before us.

The claim of unconstitutionality emerges in a composite form, that is, it is based upon the alleged controlling applicability of three clauses of the Constitution. They are (1) Article 8, § II, para. 3, the debt limitation clause of the 1947 Constitution, (2) the 1939 amendment to the 1844 Constitution,

Article IV, § VII, para. 2 (which is applicable here by Article 4, § VII, para. 2 of the 1947 Constitution) which, following adoption by referendum of the people, legalized horse racing with pari-mutuel gambling in New Jersey "from which the State shall derive a reasonable revenue for the support of government,' and (3) Article 8, § II, para. 2, the annual appropriations clause of the 1947 Constitution.

Article 8, § II, para. 3 prohibits the Legislature from creating in any manner a debt or liability of the State which together with existing debts or liabilities "shall exceed at any time one per centum of the total amount appropriated by the general appropriation law for that fiscal year, unless the same shall be authorized by a law for some single object or work distinctly specified therein.' It specifies further conditions to validity of such a law to make it exempt from the debt limitation: (1) it must provide the "ways and means, exclusive of loans, to pay the interest of such debt or liability as it falls due, and also to pay and discharge the principal thereof;' (2) there must be a provision that "the law shall not be repealed until such debt * * * and the interest thereon are fully paid and discharged;' (3) the law must be approved by the people at a general election; and (4) "all money to be raised by the authority of such law shall be applied only to the specific object stated therein, and to the payment of the debt thereby created.'

The historical basis for inclusion of this clause in the 1844 Constitution has been discussed extensively in the dissent in McCutcheon v. State Bldg. Authority, supra, 13 N.J. at 66, and in several other opinions of this Court; Holster v. Board of Trustees of Passaic County College, 59 N.J. 60 (1971); New Jersey Mortgage Finance Agency v. McCrane, 56 N.J. 414 (1970); Clayton v. Kervick, 52 N.J. 138 (1968); Roe v. Kervick, 42 N.J. 191 (1964), and New Jersey Turnpike Authority v. Parsons, 3 N.J. 235 (1949), as well as in the opinion below, and need not be repeated here. Basically the intention was to prevent one Legislature from incurring debts which subsequent Legislatures

would be obliged to pay, without prior approval by public referendum, and unless the means of payment thereof was provided, and preserved from repeal, until the debt was satisfied, and unless the funds derived from the specified means were devoted only to payment of the debt until it was discharged. It follows, of course, that if any debts that come into existence through the operation of a statute are not and cannot become debts of the State, and if the faith and credit of the State are not pledged to guarantee their payment, and future Legislatures are under no obligation to appropriate money to satisfy them in case of default, then there has been no trespass upon Article 8, § II, para. 3 of the Constitution. An indebtedness cannot arise unless there is a legal obligation to pay a sum of money to another who occupies the position of a creditor, and who has the right to call upon the debtor for payment. It is equally obvious that the debt clause applies only to obligations which are legally enforceable against the State.

The doctrine has long been settled that a State does not have to serve or perform personally all its governmental functions or public purposes. Performance of a particular public purpose or project may be entrusted under proper guidelines to an independent autonomous authority or agency. Like acceptance has been achieved for the view that when such an agency is created by act of the Legislature it may be authorized to incur financial obligations in the execution of its delegated governmental tasks, and to raise the funds to meet them by issuing its bonds or notes. In such case, the prevailing rule in this State and elsewhere is that if under the enabling statute there is an express declaration that the bonds or notes are obligations of the authority alone, that the State assumes no liability for their payment, that the faith and credit of the State are not pledged for their satisfaction, and that the holders must look solely to the authority for payment, then the debt limitation clause is satisfied. Holster v. Board of Trustees of Passaic County College; New Jersey Mortgage Finance Agency v. McCrane; Clayton v. Kervick;

Roe v. Kervick, all supra; Behnke v. New Jersey Highway Authority, 25 N.J. Super. 149 (Ch. Div.), aff'd 13 N.J. 14 (1953); McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428 (1955); Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595 (1949); City of Oxnard v. Dale, 45 Cal. 2d 729, 290 P. 2d 859 (1955); Ginsberg v. City & County of Denver, 164 Colo. 572, 436 P. 2d 685 (1968); Book v. State Office Bldg. Comm'n, 238 Ind. 120, 149 N.E. 2d 273 (1958); McKinney v. City of Owensboro, 305 Ky. 254, 203 S.W. 2d 24 (1947); Willett v. State Bd. of Examiners, 112 Mont. 317, 115 P. 2d 287 (1941); State ex rel Capitol Add'n Bldg. Comm'n v. Connelley, 39 N.M. 312, 46 P. 2d 1097 (1933); Moses v. Meier, 148 Ore. 185, 35 P. 2d 981 (1934); State v. Martin, 62 Wash. 2d 645, 384 P. 2d 833 (1963); State ex rel Bd. of Governors of W. Va. Univ. v. O'Brien, 142 West Va. 88, 94 S.E. 2d 446 (1956). See generally Chermak, The Law of Revenue Bonds, 85-95 (1954); Heins, Constitutional Restrictions against State Debt, 13-18, 123-132 (1963). Comment, The Judicial Demise of State Constitutional Debt Limitations, 56 Iowa L. Rev. 646 (1971).

Tested by the recited principles, the first stages of the attack on the statute present no serious problem. As already noted the Authority is established as an instrumentality of the State exercising public and essential governmental functions. The Legislature ordained that exercise of conferred powers "shall be deemed and held to be an essential governmental function of the State.' From the judicial standpoint the legal actuality of that declaration depends upon whether construction, operation and maintenance of the sports complex and its varying activities by and under the administration of the Authority constitute a public purpose within the ambit of state government. We are all in agreement with the trial court and the numerous authorities cited by it, that it was well within the discretion of the Legislature to find that the sports and exposition complex as described and authorized in the statute

is a public project and serves a public purpose. In these days, a sports stadium, a horse race track with pari-mutuel wagering (which was approved by state-wide referendum prior to adoption of the 1939 Amendment to the Constitution), and an exposition and trade center supply recreation for the people -- and thus serve a public purpose. We agree with the trial court that under our democratic form of government public projects are not confined to providing just the bare bones of political life; that in such a government, generally speaking, anything calculated to promote the education or recreation of the people is a proper public purpose. See generally Chermak, The Law of Revenue Bonds, supra, at 100-124.

Consideration of the first aspect of the argument respecting the debt clause requires reference to the specific language of the statute regulating and controlling the acquisition of funds by the Authority for construction and operating costs of the complex, and the liability for their repayment. The Legislature's intention in that regard was clearly expressed. Any bonds or notes issued are payable only out of Authority revenues and funds. Section 10, subd. g expressly says they "shall not be in any way a debt or liability of the State" but only of the Authority; they "shall not create or constitute any indebtedness, liability or obligation of the State * * * or constitute a pledge of the faith and credit of the State * * * [but] shall be payable solely from [Authority] revenues or funds pledged or available for their payment.' A statement to that effect and specifying further that the taxing power of the State is not pledged for their payment is required to appear on the face of each bond or note. As Justice Jacobs said in his dissent in McCutcheon v. State Bldg. Authority, supra, purchasers of bonds or notes "can be under no misapprehension whatever; they rely upon the obligation of the Authority, as distinguished from the State, and upon that obligation alone.' 13 N.J. at 73. See, also, New Jersey Turnpike Authority v.

Parsons, supra, 3 N.J. at 242; Ginsberg v. City & County of Denver, supra, 436 P. 2d at 689. Moses v. Meier, supra, 35 P. 2d at 982.

But appellants say there are further factors present which bring the bond obligation within the debt limitation clause. They point out that the 1939 Amendment to the 1844 Constitution authorized horse racing with pari-mutuel wagering "from which the State shall derive a reasonable revenue for the support of government.' It is then argued that the Constitution requires the approved type of horse racing to produce a revenue that is (1) reasonable, and (2) must go to the State qua State as general revenue to be deposited in the general state treasury and disbursed only in accordance with the annual appropriations clause of the 1947 Constitution, Article 8, § II, para. 2, and (3), regardless of (2), that in creating the Authority, empowering it to carry on horse racing with pari-mutuel wagering and to devote the revenue therefrom to operation of the sports complex and to pay off its bonds in the binding manner described in the statute, the Legislature violated the debt limitation clause. Article 8, § II, para. 3. More specifically, appellants refer to the pledge and agreement of the State with the bondholders pursuant to section 15 of the Act that until bonds issued by the Authority are paid off the State will not limit or alter the Authority's power to acquire, construct, maintain and operate the project in any way that would jeopardize their rights. They contend that since the revenue contemplated by the 1939 Constitutional Amendment is general revenue for use in the overall operation of the State, a binding agreement with the bondholders to allocate that revenue to the Authority for 40 years, or until the bonds are paid off constitutes, without approval by public referendum, a guaranty of their payment, or the assumption of a liability therefor, contrary to the debt clause.

The appropriations clause prohibits the drawing of money from the State Treasury except by annual appropriations approved by the current Legislature. Obviously

the restriction relates to funds in or required to be placed in the State Treasury. Van Riper v. Board of Chosen Freeholders, 137 N.J.L. 714, 716 (E. & A. 1948). It follows that if there is no such mandate with respect to particular revenues, the clause is not binding. There is no general mandate that all revenues generated by operation of every department or agency or authority of State government be deposited in the general treasury. In fact, history negates such a view. The proposed 1944 Constitution included a clause requiring all such revenues "from whatever source derived' to be paid into the general treasury. It was rejected at the 1947 Constitutional Convention, quite apparently because it would prevent any dedication of funds. 1 Proceedings, 1947 Constitutional Convention, 151. In this circumstance, and in the absence of any provision in the Constitution as finally adopted stating that all public money must be paid into the State Treasury, a court should not imply it. On the contrary, the omission to write such a mandate into our 1947 charter seems to have been a studied one, and indicative of a purpose to permit the Legislature to decide what revenues should go into the general fund. See Gipson v. Ingram, supra, 223 S.W. 2d 595, and compare, Petition of Bd. of Pub. Bldgs., 363 S.W. 2d 598, 606-608 (Mo. Sup. Ct. 1963), where it was deemed controlling that the Missouri Constitution, Art. 3, § 36, V.A.M.S., provided that "all revenue collected and money received by the state shall go into the treasury.' The Legislature has the power to take any action or course reasonably necessary or incidental to the operation of government that is not prohibited by the Constitution expressly or by clear implication. When it has acted within that perimeter, the function of judicial review does not include supervision of the legislative judgment. Reingold v. Harper, 6 N.J. 182 (1951).

Indications that the Legislature was aware of its prerogative to direct the course of its revenues are to be found. For example, the 1967 amendment to the Racing Commission Act specifically provides that:

All moneys received by said commission under the provisions of this act shall be paid into the State treasury and except as to moneys deposited in the New Jersey Horse Breeding and Development Account, shall be part of the free treasury funds. L. 1967, c. 40, § 6; N.J.S.A. 5:5-68 (Amendment emphasized).

Similar recognition appears in N.J.S.A. 52:18A-8:

All State revenue collected by any department, institution, commission, board, committee or official of this State shall, except as otherwise provided by law, be deposited, in the method prescribed by the director * * * to the credit of this State of New Jersey in such depositories as the State Treasurer shall designate. (Emphasis added).

This awareness is clearly evidenced also by section 7 of the Act under review. There the Legislature directed that revenue equal to 1/2 of 1% of all pari-mutuel pools be paid to the General State Fund, and that all other revenues remaining from the track operation after deduction of expenses were designated revenues of the Authority.

In the State of New York where horse racing with pari-mutuel wagering was also adopted by constitutional amendment in 1939, the same language respecting the production of "reasonable revenue for the support of government' was included. Art. 1, § 9, subd 1. However, the New York Legislature authorized the management of the track by private businesses, with the State to receive certain percentages of the revenues. Incidental to the operation, the Legislature created a public benefit corporation, the Agriculture & New York State Horse Breeding Development Fund, within the State Racing Commission, to aid in the growth and development of the industry. Its funds were to be derived from the private racing associations which were required to pay it 20% of the "breaks.' The Fund was authorized to deposit the money, not in the State Treasury, but in several segregated accounts and to disburse it for various programs designed to foster the growth and prosperity of the industry. Any obligations of the Fund could not become the debts of

the State; in fact, the expenditures were limited to the allotted income. L. 1965, c. 567. N.Y. Unconsol. Laws, § 8041 et seq. (McKinney 1971 Supp.)

The statute was attacked as unconstitutional on the ground that the portion of the racing revenues when used for the purposes for which the Fund was created did not constitute "revenue for the support of government,' and moreover that track revenues could not be diverted from the state treasury where they were subject to the two year appropriation clause of the Constitution. In Saratoga H.R.A. v. Agric. & N.Y.S.H.B.D.F., 22 N.Y. 2d 119, 291 N.Y.S. 2d 335, 238 N.E. 2d 730 (1968), the Court of Appeals rejected the contentions saying there was nothing in the constitutional "amendment which requires that all revenue in excess of expenses be devoted to the direct support of government.' 22 N.Y. 2d at 122, 238 N.E. 2d at 732, 291 N.Y.S. 2d at 337. The court declared that the Fund is not a fund under the management of the State as that term is employed in the Constitution, and that, as pointed out in the past, not every fund made up of public moneys raised by taxation or otherwise, came within the appropriations clause. In this instance the Fund was said to be the instrument through which the Legislature chose to effectuate the described legitimate purpose. And the court saw nothing in either constitutional clause which prevented the legislative action.

In upholding New York's off-track betting law by which 80% of up to 20 million dollars in racing revenues could go to the participating municipality and only 20% to the State, L. 1970, ch. 143, 144, N.Y. Unconsol. Laws, § 8061 et seq. (McKinney, 1971 Supp.), the Court of Appeals again interpreted the reasonable revenue for the support of government provision in the State Constitution. Finger Lakes R.A. v. New York State Off-Track Pari-Mutuel Betting Comm'n, 30 N.Y. 2d 207, 331 N.Y.S. 2d 625, 282 N.E. 2d 592 (1972), aff'g 65 Misc. 2d 946, 320 N.Y.S. 2d 801 (Sup. Ct. 1971). The court said that the horse racing amendment

did not require that only the State as such derive revenue from pari-mutuel betting. The portion of the pari-mutuel revenue allocated to participating municipalities through a State agency must be regarded as use of the revenue for the support of government. Rejecting the argument that the State "itself' must be the exclusive beneficiary of pari-mutuel revenues, the court said that under the Constitutional authorization what constitutes "reasonable revenue for the support of government' is a question of judgment and value and normally within the legislative province. That view is at least as applicable in the base before us, where a substantial portion of the horse racing revenues are allocated to an instrumentality of State government for the creation and maintenance of a public project like the sports complex.

It should be noted also that the Legislature created an autonomous public agency, the New York City Off-Track Betting Corporation, to conduct the pari-mutuel wagering operation. The agency was given power to finance the project through bonds which were to be paid solely from the wagering revenues. The statute expressly provided that the bonds were to be the obligation of the corporation alone, and not directly or contingently the obligation of the State. Moreover, the statute contains the same pledge as in Section 15 of the New Jersey Act., i.e., the State agreed with the bondholders that, until the bonds were paid, it would not in any way limit or alter the agency's agreement with them, limit or impair the rights of such holders, or authorize any public or private competition in off-track betting, L. 1970, c. 144, §§ 81, 83, 84. N.Y. Unconsol. Laws, §§ 8092, 8094, 8095 (McKinney 1971 Supp.).

From all of the above we are satisfied that where the Legislature has created a corporate agency, as an instrumentality of the government to perform a public purpose, whose debts are not liabilities of the State, and which is not dependent upon the Legislature for annual appropriations, Article 8, § II, para. 2 is not applicable. It is common

practice for such agencies by legislative prescription to run their own independent operation, manage their own income therefrom and pay off their bonds solely from such funds, without regard to or control by or being subject to the appropriations clause. See, e.g., Clayton v. Kervick, supra; New Jersey Mortgage Finance Agency v. McCrane, supra; Roe v. Kervick, supra; Behnke v. New Jersey Highway Authority, supra, 13 N.J. at 30-31 (1953); Parsons v. New Jersey Turnpike Authority, supra; McArthur v. Smallwood, supra, 281 S.W. 2d 328; City of Oxnard v. Dale, supra, 290 P. 2d 859; Antle v. Tuchbreiter, 414 Ill. 571, 111 N.E. 2d 836 (1953); Book v. State Office Bldg. Comm'n, supra, 149 N.E. 2d 273; State v. Board of Regents, 167 Kan. 587, 207 P. 2d 373 (1949); State v. Board of Examiners, 121 Mont. 402, 194 P. 2d 633 (1948). See generally Shestack, The Public Authority, 105 U. Pa. L. Rev. 553, 557-562 (1957); Comment, Obligations of a State Created Authority: Do They Constitute Debts of the State ?, 53 Mich. L. Rev. 439 (1955). We do not find persuasive the arguably contrary view expressed in Nebraska in State v. Steen, 183 Neb. 297, 160 N.W. 2d 164 (1968). Obviously the agencies' functional efficiency as a means of accomplishing pressing public projects would be virtually nil if the revenue produced by their financially self-sustaining operation had to be channeled into the State Treasury and disbursed in accordance with the annual appropriations clause.

But appellants maintain that the situation in this case is different from those cited because the 1939 Constitutional amendment approved horse racing with pari-mutuel wagering "from which the State shall derive a reasonable revenue for the support of government.' This language, they say, means that the revenue so derived must be considered general State revenue to be deposited in the general treasury to be used only for general State operation and cannot be diverted as a special fund to maintain and support

an autonomous agency of the State created to accomplish a public purpose. In our judgment such a narrow interpretation is unreasonable.

"Government' is a comprehensive term. It connotes the machinery by which the sovereign power in a State expresses its will and exercises its functions; it is the framework of political institutions by which the executive, judicial, legislative and administrative business of the State is carried on; it is the aggregate of authorities which rule our society and meet its public needs. Stokes v. United States, 264 F. 18, 22 (8 Cir. 1922).

As we have agreed, the sports and exposition complex serves a public purpose. By virtue of the statute the Authority is simply the instrument by which the State accomplishes that purpose; its function is a governmental one. Thus, it is entirely reasonable to conclude that in the context of the 1939 Constitutional Amendment the word "State' includes the legislatively created autonomous corporate agencies or instrumentalities which carry on various aspects of its governmental activities. The Authority being such an instrumentality it seems only sensible to say that the revenues received by it in effectuating and carrying on the delegated governmental purpose, including the revenue from horse racing, are revenues received for the support of government.

It cannot be maintained successfully that on the face of the statute the revenue to be produced by horse racing with pari-mutuel wagering is not "reasonable revenue for the support of government.' What would constitute such revenue is basically and primarily a matter for the exercise of legislative discretion, and manifestly a court should not interfere unless the sum fixed or the measure established therefor is so palpably unreasonable as to constitute unconstitutionally arbitrary action. Finger Lakes R.A. v. N.Y. State Off-Track Pari-Mutuel Betting Comm'n, supra. The matter must be appraised by viewing the State conceptually as a unique organism. The totality of its performance

is government but that ultimate result may be achieved constitutionally by the operation of independent arms which perform some of the public work and which are not dependent upon the "State' for financial support.

In its capacity of State qua State, it is to receive 1/2 of 1% of the pari-mutuel pools to be paid into the General State Fund for the direct support of government. One informed party to this action estimates that such allocation is capable of producing $1,700,000 annually. Included also for ultimate deposit in the General State Fund is any balance of the total revenues of the complex project remaining in the hands of the Authority after payment of its operating expenses, and the required amortization of its bonds. Whether in long range view this will be productive is contra-indicated presently (as the result of the stipulation of the Authority). In the "State's' other capacity, represented by the broad connotation of which the 1939 constitutional amendment is reasonably susceptible (i.e., revenue for the support of government can signify revenue generated by the operation of financially self-sustaining corporate instrumentalities of government, which is used in performing their part of state government), the Authority is to receive the balance of the track revenues remaining after specified operating expenses. It is plain from the record that that balance probably will be very substantial. Since, for the reasons expressed, both portions of the revenue will be supporting the government of the State, th trial court was correct in finding no violation of the 1939 constitutional amendment.

The final portion of the claim of unconstitutionality brings us back to the debt clause. The argument is that since the revenues generated by the race track operation are State revenues (within the restricted compass asserted by appellants) and must continue to be such by virtue of the 1939 constitutional amendment as long as horse racing with pari-mutuel wagering exists, Article 8, § II, para. 3 is violated by the State's pledge in Section 15 of those revenues

until the Authority bonds are paid, their maturity date being many years hence. As has been noted, under this section the State pledged and agreed with the bond or note holders that until such obligations are paid, it will not, to their prejudice, limit or alter the rights of the Authority to construct and operate the sports complex. Such pledge or agreement, it is contended, amounts to a pledge or guaranty or assumption of a liability by the State intended to be binding on successor legislatures, which cannot be made without approval of the people at a general election.

As the cases and secondary sources cited earlier have made clear, whenever the state government wishes to enter upon a public project requiring immediate substantial expenditure of money for its execution, it is faced with the bar of the debt clause. The modern science of government has found a method of avoiding that clause,*fn3 and the courts have approved it. It is to create an autonomous public corporate entity to undertake the task and to borrow money for the purpose on its own bonds. These bonds are expressly made the entity's own debt to be paid by it alone, and both the enabling legislation and the bonds themselves expressly stipulate that the State shall not under any circumstance have any liability thereon. Funds to meet interest and principal of the bonds are derived solely from revenues generated by the agency's operation, which remain a special fund for that purpose until the bonds are fully paid. As was said in Clayton v. Kervick, supra, 52 N.J. at 152: "It is never an illegal evasion of a constitutional provision or prohibition to accomplish a desired result, which is lawful in itself, by discovering or following a legal way to do it." Citing Book v. State Office Bldg. Comm'n, supra, 149 N.E. 2d at 288.

We have already expressed the view that devotion of the revenues from pari-mutuel horse racing wagering to Authority

purposes, and particularly for the payment of the bonds, constitutes use of the revenue by an instrumentality of the State for the support of government. The character of that use will remain constant until the bonds are paid. The requirement of the 1939 constitutional amendment being satisfied, the situation is no different from that involved in Clayton v. Kervick and New Jersey Mortgage Finance Agency v. McCrane, supra. In the enabling statutes in both of those cases the State made the same pledge in almost identical language, as appears in the act now before us, i.e., not to limit, restrict or impair the rights of the bondholders under the agreement made with the public agency until the bonds were fully paid. N.J.S.A. 18A:72A-10, 19 (bond terms up to 50 years); N.J.S.A. 17:1B-10(g), 17 (bond terms up to 30 years).

In neither of the two cases cited, nor in the many out-of-state decisions mentioned earlier was there any express or implied declaration that the covenant of the State with the bondholders not to impair the various authorities' right to use the governmental revenues generated by their operation was violative of the debt clause of the Constitution, even though succeeding legislatures were bound thereby. We see no reasonable ground for such a holding here. There can be no misunderstanding by the bondholders as to their relationship with the State. Both the statute and the face of the bonds, in the plainest of terms, tell them that they must look ...


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