RANSFORD J. ABBOTT, STATE HIGHWAY COMMISSIONER OF THE STATE OF NEW JERSEY v. BETH ISRAEL CEMETERY ASSOCIATION OF WOODBRIDGE, NEW JERSEY, A CORPORATION OF THE STATE OF NEW JERSEY FORMERLY KNOWN AS BETH ISRAEL CEMETERY ASSOCIATION, ET AL.
Supreme Court of New Jersey
Argued September 28, 1953—Decided November 16, 1953.
13 N.J. 528
Mr. Russell E. Watson argued the cause for the respondent (Mr. Theodore D. Parsons, Attorney-General of the State of New Jersey, attorney; Mr. Morris M. Schnitzer, of counsel; Messrs. H. Roemer McPhee and C. John Stroumtsos, on the brief).
The opinion of the court was delivered by
BURLING, J. This is an appeal from an order of the Superior Court, Law Division, dated April 29, 1953, denying the motion of the Beth Israel Cemetery Association of Woodbridge, New Jersey (hereinafter called the defendant), a New Jersey corporation, for dismissal of the complaint of Ransford J. Abbott, State Highway Commissioner of the State of New Jersey (hereinafter called the plaintiff), filed on January 12, 1953, under the Uniform Declaratory Judg
The matters alleged in the complaint begin chronologically in 1947, when the plaintiff‘s predecessor as State Highway Commissioner of the State of New Jersey authorized the acquisition of certain lands of the defendant for the construction of a newly authorized highway, designated as “Route 4 Parkway.” The authority for the construction of this parkway was L. 1947, c. 328 (effective June 20, 1947), which provided that “The State Highway Commissioner shall, as soon as practicable, in accordance with the procedure set forth in article one, chapter seven, Title 27, of the Revised Statutes [
The extent of the lands of the defendant required for the Route 4 Parkway was stated in the complaint to have been “determined to be 28.48 acres, 20.70 acres of which are claimed by the defendant association to be eligible and authorized for cemetery use by virtue of Chapter 227, L. 1941 (
The plaintiff (and his predecessor in office) were unable to acquire the said 20.70 acres of the defendant‘s lands by agreement. The complaint herein further avers that in July 1951 the plaintiff instituted condemnation proceedings (under R. S. 27:7-22 and R. S. 20:1-1 et seq.), that condemnation commissioners were appointed on October 28, 1951 and that the hearings before the commissioners, and the time for the filing of their report, have been postponed from time to time.
The complaint asserted that:
“It is essential that the above outlined controversies as to the constitutionality of Chapter 227, L. 1941, and as to the validity of the defendant Association‘s attempted compliance with the requirements of Chapter 227, L. 1941, be finally determined in advance of the hearing before Condemnation Commissioners so that the
Commissioners may know whether the 20.70 acres in question are to be valued as ordinary lands or as lands authorized and eligible for cemetery use. The Commissioners lack lawful jurisdiction to decide these controversies. The statutory function of the Commissioners, as prescribed in R. S. 20:1-9, is limited to ‘viewing and examining the land or other property and making a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the petitioner for the land or other property and damage aforesaid, as of the date of the filing of the petition and order thereon.’ The Commissioners lack lawful jurisdiction to decide the constitutionality of a statute. The Commissioners equally lack lawful jurisdiction to decide the validity of an attempted compliance with the requirements of a statute. These questions, because they are beyond the lawful authority and jurisdiction of the Commissioners, must therefore be decided independently in a court of law.”
The plaintiff sought judgment declaring that the lands and premises of the defendant association, comprising 20.70 acres and described in paragraph 12 of the complaint, are neither eligible nor authorized for cemetery use, in that:
(A) L. 1941, c. 227, is unconstitutional special legislation null, void and of no effect, contravening the following provisions of the New Jersey and Federal Constitutions:
“(a) The legislature shall not pass private, local or special laws * * * Granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever.
N. J. Const. 1844, Art. IV, Sec. VII, par. 11 ;N. J. Const. 1947, Art. IV, Sec. VII, par. 9, clause 8 .(b) The legislature shall pass no special act conferring corporate powers.
N. J. Const. 1844, Art. IV, Sec. VII, par. 11 ;N. J. Const. 1947, Art. IV, Sec. VII, par. 9 .(c) No general law shall embrace any provision of a private, special or local character.
N. J. Const. 1844, Art. IV, Sec. VII, par. 4 ;N. J. Const. 1947, Art. IV, Sec. VII, par. 7 .(d) No private, special, or local bill shall be passed, unless public notice of the intention to apply therefor, and of the general object thereof, shall have been previously given.
N. J. Const. 1844, Art. IV, Sec. VII, par. 9 ;N. J. Const. 1947, Art. IV, Sec. VII, par. 8 .(e) nor shall any State * * * deny to any person within its jurisdiction the equal protection of the laws.
U. S. Const., Fourteenth Amendment .”
(B) The certificates and descriptive maps filed by the defendant association with the Clerk of the Township of
(C) The certificates and descriptive maps filed by the defendant association with the Clerk of the Township of Woodbridge on or about August 10, 1945 and January 2, 1946, respectively, are null and void and of no effect because all of the lands described and included therein were not, as required by L. 1941, c. 227, acquired by the defendant association at public sale.
(D) The certificates and descriptive maps filed by the defendant association with the Clerk of the Township of Woodbridge on or about August 10, 1945 and January 2, 1946, respectively, are null and void and of no effect because the lands described and included in such certificates and descriptive maps unlawfully exceed the maximum limitation of 125 acres imposed by L. 1941, c. 227.
The defendant on March 2, 1953, having filed no answer, moved for an order of dismissal of the complaint upon the grounds that (1) the trial court lacked jurisdiction over the subject matter, and (2) the plaintiff failed to state a claim upon which relief can be granted. On April 29, 1953 the trial court denied the defendant‘s motion without prejudice to defendant‘s right to renew the motion after trial. The defendant appealed to the Superior Court, Appellate Division, under Rule 4:2-2(a), as amended, supra. Prior to hearing there certification was allowed as hereinabove noted.
The questions involved on this appeal include: (a) Has the Superior Court jurisdiction over the subject matter in this action? (b) Has the plaintiff the status to maintain this action? (c) Is the plaintiff afforded an adequate remedy in the condemnation proceeding instituted in 1951 and therefore barred from seeking relief by way of declaratory judgment? (d) Is the plaintiff estopped by laches from asserting (1) the unconstitutionality of L. 1941, c. 227
I. JURISDICTION OVER THE SUBJECT-MATTER
The defendant‘s preliminary question involved calls for a determination whether the Superior Court, Law Division, has jurisdiction over the subject matter of the plaintiff‘s action. The action as framed in the complaint was filed to obtain a judicial declaration of the status of lands, i. e., whether the specific 20.70 acres purportedly owned by the defendant were acquired or designated as cemetery lands by defendant under a valid statute and, if so, in conformity with the procedure prescribed therein. The purpose of the plaintiff in seeking this declaration is to establish the existence or non-existence of an important factor in relation to the value of these 20.70 acres, which have been taken by the State (for highway purposes) in the exercise of the sovereign power of eminent domain.
Jurisdiction over the subject matter does not depend upon the sufficiency of a complaint in a particular case, nor the technical manner in which the cause is pleaded. Baron v. Peoples National Bank of Secaucus, 9 N. J. 249, 258 (1952). It is the power of the court to hear and determine cases of the class to which the one to be adjudicated is relegated. Petersen v. Falzarano, 6 N. J. 447, 454 (1951).
The sources to be searched in the quest for the answer to the inquiry whether jurisdiction over the subject matter is vested in a given court are the Constitution, the statutes and the common law, and now, where the power has been so placed in New Jersey by
R. S. 2:26-68 on September 15, 1948, the effective date of the Judicial Article of the New Jersey Constitution of 1947, provided that all courts of record in this State “shall, within their respective jurisdictions, have power to declare rights, status and other legal relations, whether or not further relief is or could be claimed.” The source of this statutory provision was L. 1924, c. 140, secs. 1, 5, pp. 312, 313, of which the former Court of Errors and Appeals said, in McCrory Stores Corp. v. S. M. Braunstein, Inc., 102 N. J. L. 590, 592 (E. & A. 1926):
“The Declaratory Judgment Act * * * confers upon our courts of record, within their respective jurisdictions, power to declare rights, status, or other legal relations, although no further relief is or could be claimed * * *”
This declaration of the former Court of Errors and Appeals in the decision in the McCrory case, supra, was based (102 N. J. L., at page 593) upon the philosophy inherent in an 1873 statute declared constitutional in In re Public Utility Board, 83 N. J. L. 303, 304-308 (Sup. Ct. en banc, 1912). The act is a remedial one that “broadens the rationale of remedies long cognizable” in the several courts of record in this State. New Jersey Turnpike Authority v. Parsons, 3 N. J. 235, 239 (1949). The revision of Title 2 of the Revised Statutes effective January 1, 1952, has effected no change in the general purpose or philosophy of the act. R. S. 2:26-68, supra, is now designated as
The matter before us in effect seeks a declaration that the defendant has not lawfully subjected the 20.70 acres of land in question to cemetery use. No judgment setting aside the instruments or voiding the formal acts taken to achieve the result of subjection of these lands to cemetery use is sought. The plaintiff appears not to question defendant‘s title, only the existence of its right to designate these acres as “cemetery” lands. Were the plaintiff a party having the right to prevent such use his action might be for injunctive relief (an equitable remedy) or certiorari to test the authority of the Clerk of the Township of Woodbridge to accept for filing the certificates and maps relative thereto (a remedy formerly pursued by prerogative writ, in the former Supreme Court). These are not the sole causes of action that might have been considered as emanating from the alleged non-compliance by the defendant with L. 1941, c. 227, p. 645 (
II. STATUS OF THE PLAINTIFF
The next question involved is whether the plaintiff, a state administrative officer, has the requisite capacity to maintain this suit.
The pertinent portion of the Uniform Declaratory Judgments Law contained in
“A person * * * whose rights, status or other legal relations are affected by a statute, * * * contract or franchise, may have determined any question of construction or validity arising under the * * * statute * * * contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.”
It is settled that proceedings of this nature are restricted by the general rule of law that requires an action to be prosecuted in the name of a real party in interest. New Jersey Bankers Ass‘n v. Van Riper, 1 N. J. 193, 196 (1948); Borchard, Declaratory Judgments (2nd ed. 1941), Part II, chapter III, pp. 255 et seq. Where a statute is questioned on constitutional grounds and that statute affects a state officer‘s duties or the use of personnel and funds of his department, he is deemed an indispensable defendant to the action. It has been so held with respect to the State Highway Commissioner, the state officer involved in this suit (although the office was then occupied by a person other than the present plaintiff), in New Jersey Turnpike Authority v. Parsons, supra (3 N. J., at page 240). Cf. In re Van Syckle, 118 N. J. L. 578, 580 (E. & A. 1937).
It has been stated that public officers are entitled to have their legal duties determined judicially by action for declaratory judgment. 1 Anderson, Declaratory Judgments (1951), sec. 159, p. 307. And it has stated that the “state itself and its political subdivisions and bureaus are proper parties plaintiff.” Borchard, Declaratory Judgments (1941), pp. 264. Cf. City of Mobile v. Board of Water and Sewer Com‘rs., 258 Ala. 669, 64 So. 2d 824, 825 (Ala. Sup. Ct. 1953); Board of Public Works of Rolla v. Sho-Me Power Corp., 362 Mo. 730, 244 S. W. 2d 55, 61-62 (Mo. Sup. Ct. 1951); State ex rel. Smrha, Director of Insurance v. General American Life Ins. Co., 132 Neb. 520, 272 N. W. 555, 557-558, (Sup. Ct. 1937).
Further, there is precedent for resort by a governmental agency to an action for a declaratory judgment to settle disputed matters in connection with a condemnation proceeding. See Syracuse Grade Crossing Comm. v. Delaware L. & W. R. Co., 197 Misc. 192, 97 N. Y. S. 2d 279 (Sup. Ct. 1941), modified on other grounds, 263 App. Div. 930, 32 N. Y. S. 2d 620 (App. Div. 1942), affirmed per curiam 290 N. Y. 632, 49 N. E. 2d 131 (Ct. App. 1943). Cf. Black River Regulating Dist. v. Adirondack League Club, 282 App. Div. 161, 121 N. Y. S. 2d 893, 898 (App. Div. 1953).
Public officials of the status of the plaintiff “stand in a fiduciary relationship to the people whom they have been elected or appointed to serve.” Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 474 (1952), certiorari denied 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952), rehearing denied 344 U. S. 888, 73 S. Ct. 181, 97 L. Ed. 687 (1952). The plaintiff has the right to protect his cestuis que trust and in doing so his interest in protecting the public from use of its moneys for the benefit of private parties by virtue of an invalid statute seems undeniable. The right to resort to the Uniform Declaratory Judgments Law in an analogous respect has been accorded to fiduciaries generally, Fidelity Union Trust Co. v. Price, 11 N. J. 90 (1952), and
For these reasons we conclude that the plaintiff was clothed with the proper status to maintain an action for a declaratory judgment.
III. AVAILABILITY OF ADEQUATE ALTERNATE REMEDY
The defendant has asserted as another question involved in this appeal that the plaintiff is afforded an adequate remedy in the condemnation proceedings initiated in 1951 and therefore the relief of declaratory judgment is not available to him.
The statute provides that it is “remedial” and “Its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.”
The statute is liberally administered, however, to carry out its purposes and intent. Blackman v. Iles, 4 N. J. 82, 87 (1950). It broadens the rationale of remedies long
These principles call for a determination whether the plaintiff would be afforded an adequate consideration of the matter of the validity of and defendant‘s purported compliance with L. 1941, c. 227 (
The power of eminent domain is a high sovereign power that has been allotted to the legislative branch of the government since the Magna Carta. See Blackstone‘s Commentaries (Browne‘s ed. 1897), pp. 39, 44; Jahr, Eminent Domain (1953), sec. 1, pp. 1-5. Accord: Bergen County Sewer Authority v. Borough of Little Ferry, 5 N. J. 548, 552 (1950); State Highway Comm. v. City of Elizabeth, 102 N. J. Eq. 221, 225 (Ch. 1928), affirmed 103 N. J. Eq. 376 (E. & A. 1928); The Tide-water Company v. Coster, 18 N. J. Eq. 518, 520-522 (E. & A. 1866). It has been held that constitutions do not give, but merely place limitations upon, the power of eminent domain which otherwise would be without limitation. See for example, City of Cincinnati v. Louisville & N. R. Co., 223 U. S. 390, 404-407, 32 S. Ct. 267, 56 L. Ed. 481, 485-486 (1912); Jahr, Eminent Domain, supra, p. 3; 18 Am. Jur., Eminent Domain, secs. 7-10, inclusive, pp. 635-639; cf. Currie v. New York Transit Company and National Docks Railway Company, 66 N. J. Eq. 313, 315 (E. & A. 1904); Sinnickson v. Johnson, 17 N. J. L. 129, 145 (Sup. Ct. 1839). Cf. 2 Lewis, Eminent Domain (3rd ed. 1909), sec. 448, pp. 806-807.
The proof of the above statements may be succinctly demonstrated. Clause 39 of the Magna Carta provided “No freeman shall be * * * disseised * * * unless by the lawful judgment of his peers, or by the law of the land.”
“That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter; * * *”
This clause clearly continued the common law authority of the Legislature to retain and exercise the sovereign power of eminent domain. The rights and privileges expressed in the 1776 charter did not dissipate this ancient legislative prerogative.
“The common law and statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature;”
There was no constitutional restriction placed upon the Legislature‘s status as custodian of the sovereign power of eminent domain.
“All law, statutory and otherwise * * * in force at the time this Constitution or any Article thereof takes effect shall remain
in full force until they expire or are superseded, altered or repealed by this Constitution or otherwise.”
Thus the 1947 charter continued the legislative authority to provide for the exercise of the sovereign power of eminent domain, restricted only by the pertinent clauses of that Constitution. The restrictions (other than such as relate to general rights) are concerned solely with the matter of compensation to persons whose property is taken under an exercise of this legislative power. In both the New Jersey Constitution of 1844 and the New Jersey Constitution of 1947 these references to compensation, coupled with the clear mandate continuing existing common law principles, constitute recognition of the broad common law authority of the Legislature to control resort to the sovereign power of eminent domain.
The right to exercise this sovereign power of eminent domain has been delegated by the Legislature of this State to numerous agencies of the State and its political subdivisions. The scope of the exercise of the power by the persons or courts delegated to exercise it must necessarily be circumscribed by the legislative enactment. Prior to the enactment of L. 1953, c. 20, it was held that the courts did not exercise their general jurisdiction in these matters, but only the statutory jurisdiction. Bergen County Sewer Authority v. Borough of Little Ferry, supra (5 N. J., at page 552). As hereinbefore stated, the specific authority in the plaintiff (and his predecessor in office) to acquire the lands of the defendant in question by condemnation stems from L. 1947, c. 328 (which authorized Route 4 Parkway), L. 1945, c. 83 (under which, in L. 1947, c. 328, supra, the Legislature designated Route 4 as a “parkway“), R. S. 27:7-1 et seq. (the general authority of the State Highway Commissioner over highways—section 22 of which, R. S. 27:7-22, provided that his exercise of the power of eminent domain should be “in the manner provided” in R. S. 20:1-1 et seq.), and the general statutes on eminent domain, R. S. 20:1-1 et seq. Therefore the solution to the question involved on this aspect of the case rests in the terms of the latter statutory provisions.
Upon appointment and qualification the condemnation commissioners’ authority was to “proceed to view and examine the land or other property and make a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the petitioner for the land or other property * * * as of the date of the filing of the petition and order thereon.” R. S. 20:1-9. Scrutiny of these provisions discloses no authority in the condemnation commissioners to declare a statute unconstitutional nor to refuse to recognize it on the premise that it is unconstitutional, without the mandate of an adjudication of a competent judicial tribunal to that end. In Schwartz v. Essex County Board of Taxation, 129 N. J. L. 129, 132 (Sup. Ct. 1942), affirmed 130 N. J. L. 177 (E. & A. 1943), it was held that: “It is indisputable that the determination of the constitutionality of an act of the legislature rests with a judicial body; not with a quasi-judicial body * * *” and administrative tribunals must “accept a legislative act as constitutional until such time as it has been declared to be unconstitutional by a qualified judicial body.” That philosophy is
The remaining facet of this question involved is whether the statutory appeal for review of the condemnation commissioners’ report afforded an adequate medium for the disposition of the controversy between the plaintiff and defendant concerning the validity and application of L. 1941, c. 227 (
The query is invited by the defendant‘s brief whether the plaintiff was afforded an adequate remedy by way of an action in lieu of certiorari, the relief in which would appear to be a judgment setting aside the instruments and official actions whereby the defendant acquired the large tract of land including the 20.70 acres involved herein if the plaintiff were to prevail on either the premise of unconstitutionality or the premise of non-compliance with the statute. See Packard v. Bergen Neck Ry Co., supra. We find it unnecessary to determine whether the plaintiff is clothed with sufficient authority to initiate such a direct proceeding. His authority, however, is not concurrent with the authority of the Attorney-General. The present application by the plaintiff relates only to the specific 20.70 acres and his sole interest is protection of the public, not in relation to burials, but in
Upon consideration of the limited relief sought and the nature of the proceedings in eminent domain instituted in this case, we are of the opinion that the retention of jurisdiction by the Superior Court, Law Division, was not an abuse of discretion. No other completely adequate proceeding was available to the plaintiff for the relief sought.
IV. ESTOPPEL
The defendant, among the questions involved in this case, asserts that the plaintiff was estopped by laches to seek the relief requested in his complaint in this cause. We find no merit in this contention. We discern no prejudice to the defendant occasioned by the plaintiff‘s delay, and doctrines of laches and estoppel are not applied against the State to the same extent as against private parties. City of Bayonne v. Murphy & Perrett Co., 7 N. J. 298, 311 (1951).
V. ATTORNEY-GENERAL AS A PARTY
Among the questions involved is the question whether the complaint for declaratory judgment should have been dismissed for failure to join the Attorney-General of New Jersey, eo nomine, as a party. This question was raised at oral argument. R. S. 2:26-72, inter alia, required the Attorney-General to be served, but this provision was not reenacted in
VI. POWER TO ENTER POSSESSION IN CONDEMNATION BEFORE MAKING COMPENSATION
At oral argument of this cause the question was raised whether constitutionally possession could be taken by the party exercising the power of eminent domain prior to award and payment of the value of the lands in question.
The general rule in most jurisdictions elsewhere is that constitutionally the State may enter into possession prior to payment for the lands taken. See Jahr, Eminent Domain (1953), sec. 40, p. 60, and authorities there cited. In the absence of a specific constitutional prohibition, there is nothing that requires the Legislature to condition the exercise of the power of eminent domain upon a prior payment of compensation. Williams v. Parker, 188 U. S. 491, 23 S. Ct. 440, 47 L. Ed. 559 (1903); McGehee, Due Process of Law (1906), p. 291. In Williams v. Parker, supra, Mr. Justice Brewer stated:
“So far as the Federal Constitution is concerned, it is settled by repeated decisions that a state may authorize the taking of posses-
sion prior to any payment, or even final determination of the amount of compensation.” (188 U. S. at page 502, 23 S. Ct. at page 442, 47 L. Ed., at page 562.)
“Private property shall not be taken for public use without just compensation. Individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners.”
It appears that the members of the Committee on Rights, Privileges, etc., of the 1947 Constitutional Convention were of the opinion that the State (or agencies or political subdivisions) could take property before payment under the New Jersey Constitution of 1844 (but individuals or private corporations could not). III Proceedings, N. J. Constitutional Convention of 1947, pp. 10-11, p. 174.
This conclusion is buttressed by comparison of
In the 1844 Convention the question of time of compensation was thoroughly debated and a motion to insert the word “first” in the clause that later was adopted as
Insofar as statutory authority of the State Highway Commissioner is concerned, at the time the present plaintiff or his predecessor in office took possession of the 20.70 acres of land involved in this action, R. S. 27:7-22, supra, authorized him to “enter upon and take property in advance of making compensation therefor.” R. S. 20:1-29 confirmed this authority.
CONCLUSION
For the reasons expressed in this opinion the order of the Superior Court, Law Division, appealed from is affirmed. The cause will be remanded to that court for further proceedings consistent with the practice and procedure applicable thereto.
HEHER, J. (dissenting). I find no substantial ground for deviating from the procedure laid down in R. S. 20:1-1, et seq. to determine the compensation payable for the lands taken in the exercise of the sovereign power of eminent domain; quite the contrary. This is, after all, but a proceeding to settle the elements of value entering into the appraisement of the land taken; and if this course be affirmed as a justifiable exercise of judicial power, then the Declaratory Judgments Act may be invoked whenever there is controversy as to the constituents of land value, in advance of and in derogation of the statutory assessment function. This, I submit, is not the office of the declaratory judgment.
The assessment procedure provided by the Eminent Domain Act affords the mechanism for determining the value of the land, in keeping with the essentials of due process. Three disinterested freeholders are appointed commissioners “to examine and appraise the land or property and to assess the damages,” on notice to the persons interested. R. S. 20:1-6. Ryan v. Housing Authority of Newark, 125 N. J. L. 336 (Sup. Ct. 1940). In the event of an appeal from the report
The statutory declaratory judgment was not designed to aid in the fulfillment of the assessment function, as is here proposed. The Eminent Domain Act is in this regard a self-contained measure for the fixing of compensation by a jury trial in a court of plenary jurisdiction; such is the absolute right of the parties in interest.
The adjudicatory declaration sought here, it is stated in the opinion of my brothers, is “that the defendant has not lawfully subjected the 20.70 acres of land in question to cemetery use,” such as will “terminate the ‘uncertainty or controversy’ that gave rise” to this action, using the language of
But the judgment cannot settle the question as to whether the lands may fairly be deemed available for cemetery uses, for in determining compensation it is proper to consider the use to which the land is naturally adapted. The inquiry is the market value, according to circumstances and conditions then existing or reasonably to be anticipated in the near future. Ringwood Co. v. North Jersey District Water Supply Commission, 105 N. J. L. 165 (E. & A. 1928). The reasonable use potential is an element to be taken into account. The wants of the community and the advantages of the land for a particular use are factors entering into the
The right presently to devote the lands to cemetery uses is not necessarily the determinative inquiry; even though there be no immediate right, their peculiar suitability to such use is ex necessitate a circumstance bearing upon value. The whole is a question for the jury, controlled by the pertinent legal principles. Divided judicial inquiries have their disadvantages. Compare Sisters of Charity v. Morris Railroad Co., 84 N. J. L. 310 (E. & A. 1913). But here the assessing jurisdiction has a statutory genesis, and the procedure provided by the Legislature should be followed, involving as it does the granted right of trial by jury. The appraisement of the lands in the particular circumstances is peculiarly within the province of the jury, subject, of course, to the guidance of the court in matters of law.
It is in the nature of the discretionary declaratory jurisdiction that it may not be invoked where there is actually pending between the same parties an action in which all the issues are determinable. Woollard v. Schaffer Stores Co., 272 N. Y. 304, 5 N. E. 2d 829 (Ct. App. 1936); 109 A. L. R. 1262. See, also, Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N. W. 618 (Sup. Ct. 1930), 68 A. L. R. 105. See, also, 12 A. L. R. 76; 50 A. L. R. 48; 68 A. L. R. 120; 87 A. L. R. 1219, 1237.
I would reverse the order and dismiss the complaint.
For affirmance—Chief Justice VANDERBILT, and Justices OLIPHANT, WACHENFELD, BURLING, JACOBS and BRENNAN—6.
For reversal—Justice HEHER—1.