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Evans-Aristocrat Industries Inc. v. City of Newark

Decided: March 17, 1976.

EVANS-ARISTOCRAT INDUSTRIES, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANT, V. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, A CORPORATION, THIRD PARTY DEFENDANT-RESPONDENT



Halpern, Crane and Milmed. The opinion of the court was delivered by Crane, J.A.D. Halpern, P.J.A.D. (dissenting).

Crane

Plaintiff brought an action in the Chancery Division seeking essentially to compel the City of Newark to alleviate the conditions of its sewer system which allegedly caused the flooding of plaintiff's industrial property. Plaintiff learned through discovery that lands of the city had been leased to the Port Authority of New York and New Jersey on which the expanded facilities of Newark Airport were constructed, which plaintiff contends changed the drainage patterns of an area known as the Waverly District. It was also learned during discovery that an exchange of correspondence took place between officials of the city and the Port Authority which plaintiff contends constituted an agreement by the Authority to construct a pumping station and to keep certain drainage ditches clear.

Because of the statutory grant to the Port Authority of immunity from suits by private individuals seeking injunctive relief, N.J.S.A. 32:1-161, plaintiff sought the intercession of the Attorney General of New Jersey. The court below denied the Attorney General's motion for leave to intervene on behalf of plaintiff because the Attorney General took no position as to the merits of the controversy, intended to file no pleadings and would take no further action with respect to the conduct of the litigation. The opinion of the Chancery Division is reported at 129 N.J. Super. 437 (Ch. Div. 1974). We granted leave to appeal.

In our view the trial judge took too restrictive a view of the authority of the Attorney General. Under the statute, N.J.S.A. 32:1-161, the Attorney General is authorized

(with exceptions not here relevant) "to bring such suits, actions or proceedings [against the Port Authority] in his discretion on behalf of any person or persons whatsoever who requests him so to do * * *." (Emphasis supplied.) The Attorney General has stated that although he would take no active position with respect to the ultimate merits of the lawsuit, he exercised his discretion in favor of intervention in the interest of making the Port Authority more responsive to the needs of the public and for the purpose of providing a vehicle whereby plaintiff would have its day in court.

We do not find it unusual that the Attorney General has taken such a position. The functions and authority of the Attorney General are derived from the common law of England, subject to enlargement or abridgement by legislative enactment. Alexander v. N.J. Power and Light Co. , 21 N.J. 373, 380 (1956). See also, Kugler v. Romain , 58 N.J. 522, 538-539 (1971); Van Riper v. Jenkins , 140 N.J. Eq. 99, 102 (E. & A. 1946). At common law a private individual having some private or individual interest to subserve in connection with the rights of the sovereign could, as a matter of right, bring an action as a relator through the attorney general to set in motion the machinery of the court. State ex rel. Taylor v. Lord , 28 Or. 498, 43 P. 471, 474 (Sup. Ct. 1896); cf. Attorney General v. Delaware and Bound Brook R. Co. , 27 N.J. Eq. 631 (E. & A. 1876). It has been held in other jurisdictions that the attorney general has the absolute discretion as to whether to bring a suit, People v. Ballard , 134 N.Y. 269, 32 N.E. 54 (Ct. App. 1892), and that he is the sole judge of his right to intervene in litigation. State v. Finch , 128 Kan. 665, 280 P. 910 (Sup. Ct. 1929). See also O'Regan v. Schermerhorn , 25 N.J. Misc. 150, A. 10 (Sup. Ct. 1946).

Among other things, the Attorney General is vested with the duty of interpreting the statutes. N.J.S.A. 52:17A-4(e); Keenan v. Essex Cty. Freeholders Bd. , 105 N.J. Super. 271, 278 (Law Div. 1969). In this matter, the

Attorney General has construed the statute as giving him the authority to set in motion the judicial machinery to enable a private litigant to have his day in court on a matter concerning the responsibility of a public agency. We regard the interpretation of the Attorney General, who has the duty of acting under the statute, as strongly persuasive. United States ex. rel. Louisiana v. Jack , 244 U.S. 397, 406, 37 S. Ct. 605, 61 L. Ed. 1222 (1917); Union Ins. Co. v. Hoge , 62 U.S. 35, 21 How. 35, 16 L. Ed. 61 (1859).

The interpretation of the Attorney General has the effect of limiting the governmental immunity of the Port Authority. His interpretation is consistent with the trend of judicial authority. See Willis v. Dept. of Cons. & Econ. Develop. , 55 N.J. 534, 537-538 (1970); Taylor v. New Jersey Highway Auth. , 22 N.J. 454, 470 (1956); Interstate Wreck Co. v. Palisades Interstate Pk. Comm'n , 57 N.J. 342 (1971).

The trial judge placed emphasis on the fact that the Attorney General would take no further action with respect to the course of conduct of the litigation, and that the conduct of the litigation would be in the hands of a private ...


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