New Jersey Turnpike Authority v. Parsons

Heheb, J.

(dissenting in part). I perceive no constitutional infirmity in the Turnpike Authority Act. I do not share the view that section 17 contravenes Article VIII, section II, paragraph 2 of the Constitution of 1947, providing that “no money shall be drawn from the State Treasury but for appropriations made by law.”

This section is concerned only with the “preliminary expenses” attending the inauguration of the turnpike projects found needed in the common interest. The act contains a legislative finding that “modern express highways embodying every known safety device,” enumerated in part, are essential “to remove the present handicaps and hazards on the congested highways in the State.” The cited section merely provides for the discretionary use of moneys already appropriated to the State Highway Department for highway purposes and the Department’s engineering and traffic skills “for the study” of turnpike projects, and the reimbursement of “the funds so expended” from the proceeds of the sale of revenue bonds to finance the particular turnpike project. Such expenditures may be made, in the Department’s discretion, only out of funds “available for the purpose;” and “obligations” and “expenses” incurred by the Department with the Authority’s approval “for traffic surveys, borings, preparation of plans and specifications, and other engineering services in connection with the construction of a project” are deemed a part of the cost of the project for which reimbursement shall be made “out of the proceeds of bonds” therein authorized.

Such disbursements would not constitute an interdepartmental use of appropriated funds without legislative authority, but rather the use of the moneys by specific legislative direction in the performance of the Department’s normal function of making such preparatory study of highway proj

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ects to meet a public need. It cannot matter that in the particular instance the project may eventually be undertaken and consummated by the Authority. The Legislature is invested with authority to appropriate moneys for a public purpose; and the use of the Highway Department’s technical and other facilities to, make this preliminary contribution to projects committed to the Authority does not serve to render the State liable for the Authority’s bonded or other indebtedness within the intendment of Article VIII, section II, paragraph 3 of the Constitution, or to alter its essential character. The statute does not empower the Highway Commissioner, "year by year,” to "turn over all of his funds” to the Authority; as we have seen, the "study” of the turnpike projects is to be made by the Highway Department and its engineering staff; and the cost is to be defrayed, pending reimbursement, "out of any funds available for the purpose.” This is a definite and precise limitation of such expenditures to the Department’s fund available for surveys of that character. Such authority resides in the Commissioner with respect to highway construction within his province.

Provision for the study of turnpike projects out of “available” departmental funds is not within the interdiction of Article VIII, section II, paragraph 3 of the Constitution. In this, there is not a diversion of the moneys to private or other purposes beyond the province of the Legislature. A different principle is not applicable merely because the preliminary study involves a project entrusted to the Authority. It is nevertheless a public purpose clearly within the competency of the Highway Department’s engineering staff. And it is equally evident that there is in these circumstances no "loan” of the State’s credit within the purview of Article VIII, section II, paragraph 1 of the Constitution. Constitutional limitations must be expressed in certain and definite terms.

The Turnpike Authority is not thereby brought within the principle of

Wilson v. State Water Supply

Commission, 84

N. J. Eq.

150

(E. & A.

1915). As respects Article VIII, section II, paragraph 3 of the Constitution, the distinguishing

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characteristics are fundamental. The essential differences in this behalf are well stated by the Chief Justice; the provision under consideration has no bearing upon that question.

And section 27 :23—5 (j) of the cited statute contains what I conceive to be a clear and unambiguous grant to the Authority of the right to take state property by condemnation. The Authority is empowered, in absolute and unqualified terms, to acquire “public lands” by the exercise of the power of eminent domain. Section 27:23-14 authorizes the several public departments, agencies and commissions of the State to lease, lend, grant or convey to the Authority “any real property which may be necessary or convenient to the effectuation of the authorized purposes of the Authority, including public roads and other real property already devoted to public use.” The right of condemnation complements the power to acquire such property by agreement, and is indispensable to the exercise of the functions assigned to the Authority. The statute was designed to be self contained. The question in the final analysis is one of intention; and the power may arise by clear implication from the nature of the work and the impracticability of its construction without encroaching on land already in public use. This proposition has general acceptance, as is shown by the text writer cited in the majority opinion. The right of eminent domain is to be reasonably exercised to serve the statutory policy.

I concur in the reasoning and result .of the opinion of the Chief Justice in all other particulars.

I would affirm the judgment.

Mr. Justice Burling joins in this dissent.

For

modification—Chief Justice Vanderbilt, and Justices Case, Olipi-iant, Wacheneeld and Aokerson—5.

For

affirmance■—Justices Heher and Burling—2.