# Clayton v. Kervick > Supreme Court of New Jersey · June 28, 1968 · 52 N.J. 138 URL: https://www.frixlaw.com/law-library/cases/9755811 ## Case - **Full name:** Joseph E. Clayton, Acting Commissioner of the New Jersey Dept. of Education and the New Jersey Educational Facilities Authority, a Public Corporation and Government Instrumentality in the Department of Education, Plaintiffs-Respondents, and Association of Independent Colleges and Universities in New Jersey, Plaintiff - Intervenor - Respondent, v. John A. Kervick, State Treasurer of New Jersey, Defendant-Appellant, and Howard Levine, Jacqueline Levine, Joseph Marzell and Belle Marzell, Defendants-Intervenors - **Court:** Supreme Court of New Jersey - **Decided:** June 28, 1968 - **Citations:** 52 N.J. 138; 244 A.2d 281; 1968 N.J. LEXIS 230 - **Precedential status:** Published - **Opinion:** Concurring in part by Hall - **Judges:** Jacobs, Hall - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755811 ## How later opinions describe it (automated extraction) - holding that the Educational Facilities Act did not violate the debt limitation clause because repayment of the debt was intended to come mainly from sources unrelated to legislative appropriations and that its operations, therefore, “may be compared favorably to the many self… - holding that statute authorizing the issuance of bonds by the EFA to construct facilities for participating higher educational institutions which were then leased by the authority to the institutions to pay the cost of the project, including the principal and interest on the b… - noting that annual rental payments on leases of facilities to educational institutions by Educational Facilities Authority, to be applied to bond amortization payments, "were intended to come mainly from sources unrelated to legislative appropriations" - discussing historical context of Debt Limitation Clause’s adoption - discussing independent revenue source and lease payments ## Opinion text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755811. Public record. Not legal advice.