Clayton v. Kervick

Hall, J.

(concurring in part and dissenting in part): In Roe v. Kervick, 42 N. J. 191, 234 (1964) (concurring opinion), I expressed the view that approval of the legislation there involved, providing for the financing by state moneys of private projects in aid of a public purpose, carried non-applicability of the constitutional public aid limitations (Art. VIII, sec. II, par. 1 and Art. VIII, sec. Ill, par. 3) about as far as can be without completely writing them off. Here the statutory provisions as related to private colleges are extremely broad, authorizing the Authority to loan money to *158 such institutions (N. J. S. 18A :72A-31) and to acquire, construct and lease “educational facilities” for them (N. J. S. 184 ;724-30). Such “facilities” may include practically anything conceivable for a modern college campus, right down to parking lots, N. J. S. 18A ;724-3.

The difficulty I find is that there is nothing express or implied in the act requiring any private college, as a condition of such assistance, to expand its enrollment by even one student, let alone one residing in Mew Jersey. Such an institution could legitimately utilize the benefits of the law simply to modernize its buildings and facilities and maintain the present size of its student body. The whole tenor of the act’s preamble (N. J. S. 184 ;724-1) is the state’s crying need for additional college facilities to educate more Mew Jersey people, who now have to be exported to other states to secure higher education. There is therefore no assurance that this basic purpose will be effectuated in the case of private colleges. So, I am of the view that the scheme, as to such institutions, goes beyond the line of constitutionally permissible public aid projects and the provisions of the act providing benefits to private colleges are invalid in their present form.

I agree with the majority that the constitutional debt limitation provision (Art. VIII, sec. II, par 3) is not violated by the act, because it is clear enough that no state appropriations or moneys will be required or can be compelled to be provided to enable the Authority to pay its obligations. 'Even in the case of benefits extended to public colleges, the cost of or rent for facilities it will construct or otherwise make available will be deferred from revenue paid by third persons for the use thereof. While the majority does not expressly overrule McCutcheon v. State Building Authority, 13 N. J. 46 (1953), it does whittle it down so that substantially nothing is left. I believe the case still ought to remain as sound law to the extent of its general holding that the debt limitation provision is violated (assuming the amount involved is sufficient) where the revenue to pay for state governmental (or for that matter, educational) buildings furnished through an authority, *159 and thus to satisfy that authority’s obligations, must and will come, in reality, only from state appropriations. The interposition of a so-called autonomous agency between the Legislature and the state agency or department benefited in such a situation is to me, realistically, only doing indirectly by means of a conduit what may not validly be done directly, absent referendum approval.

If it is felt we can no longer live with the debt limitation and public aid project provisions of the 1947 Constitution, they ought to be amended by the prescribed method rather than through legislative nullification or evasion and judicial sanction thereof.

I would consequently affirm the judgment below with respect to the public college provisions of the act and reverse it as to those benefiting private colleges.

For affirmance — Chief Justice Weinteatjb and Justices Jacobs, Peancis, Peoctoe, Schettino and Haneman — 6.

For affirmance in. part and reversal in part — Justice Uat.t. —1.