8 N.J. 121 | N.J. | 1951
The opinion of the court was delivered by
The appeal in this civil action presents one primary question: whether the State of New Jersey may be sued for money due under a contract entered into between a-contractor and the Administrator of the Public Housing and Development Authority of the State of New Jersey (hereinafter called the Administrator) under L. 1946, c. 323 (N. J. 8. A. 55 :14(?-1 et seq).
Procedure
The proceedings have a complicated appearance and it is necessary to dissect them in order to cut through to clarity. One proceeding was initially instituted in the Law Division and the other in the Chancery Division of the Superior Court. These actions were consolidated bn December 19, 1950, and thenceforth the consolidated action was continued as one suit within the Chancery Division. After consolidation, the defendants-appellants moved for judgment of dismissal of the complaint of National Surety Corporation, the plaintiff in the Chancery action (hereinafter called the plaintiff). This motion was denied by order of the Chancery Division on March 30, 1951, and the defendants-appellants addressed this appeal from that interlocutory order to the Appellate Division of the Superior Court. Prior to hearing there, certification was granted by us upon our own motion.
One Arthur E. Barth (hereinafter called Barth), a building contractor, in 1947 and 1948 entered into two contracts with the Administrator for alteration, rehabilitation and repair of certain public housing accommodations in the City of Jersey City. In connection therewith, and under the requirements of said contracts, Barth as principal and the
On February 3, 1950, the Division of Employment Security had filed a certificate of debt with the Clerk of the Superior Court showing Barth’s liability accrued under the unemployment compensation law for the period of February 17, 1946, to May 1, 1947 (contributions, interest to January 30, 1950, and penalties). This certificate was docketed in the judgment record in the Superior Court pursuant to the provisions of R. S. 43:31-14(e) as amended by L. 1938, c. 59; L. 1939, c. 309; L. 1940, c. 97; L. 1944, c. 80; L. 1945, c. 307 and L. 1948, c. 79. Similar certificates were docketed as judgments against Barth on June 6, 1950, and June 8, 1950.
The order to show cause directed to the Administrator as garnishee in the law action was dismissed by order of the Law Division of the Superior Court, for the reason that the Administrator as garnishee did not admit the debt, R. 8. 3:36-180, and on December 19, 1950, the Law Division of the Superior Court entered an order in the law action correcting the record 'in those proceedings to show Barth’s debt to the State (the Division of Employment Security) and permitting the Division of Employment Security to intervene. On the same date an order was entered permitting the plaintiff to intervene in the law action, transferring the law action to the Chancery Division, consolidating that action with the Chancery action and requiring the Division of Employment Security to answer, or move to dismiss, the plaintiff’s complaint.
Substantive Questions
The question to be determined here is whether the State may be sued for contractual balances under a contract entered into under L. 1946, c. 323.
The State Agencies contend and the plaintiff agrees that the State may not be sued without its consent. However, the plaintiff contends that the State has consented to suit on contracts entered into by the Administrator under L. 1946, c. 323 {N. J. 8. A. 55:14(7-1, etc.), supra, because that act
“Within the department there shall be a ‘public housing and development authority,’ a body politic and corporate, with power to sue and be sued, to have a seal, and to have corporate succession, hereinafter referred to as ‘the authority.’ The powers and duties of this authority shall be vested in and may be exercised by the commissioner.” L. 1944, o. 85, Art. 3, p. 175, sec. 22. (W..J. S. A. 52:270-22.)
L. 1946, c. 323 (N. J. 8. A. 55:14(?-1 et seq.) was emergency legislation, designed to ameliorate the acute public emergency that existed at the time of its enactment in the serious shortage of dwelling accommodations for veterans of World War II and other people of this State (sec. 1; N. J. S. A. 55:14(7-1). The power to effectuate this emergency legislation was specifically lodged in the “public housing and development authority in the Department of Economic Development” (sec. 3; N. J. S. A. 55:14(7-3). The statute defines the term “administrator” as used throughout its provisions to be “the administrator of the public housing and development authority who is the Commissioner of the Department of Economic Development” (sec. 2 as amended by L. 1947, c. 52, sec. 1; N. J. 8. A. 55:14(7-2). The Administrator was given broad powers, including the right of eminent domain (sec. 8; N. J. 8.. A. 55:14(7—8). Title to all property acquired (sec. 7; N. J. S. A. 55 :14=(17—T) and materials and equipment incorporated in projects under this act (sec. 14; N. J. 8. A. 55:14(7-14) vested in the State.
The State Agencies contend that the consent to suit set forth in see. 22 of the 1944 act (supra) is not applicable to acts performed by the Administrator under the 1946 legisla
“The sum of six million dollars ($6,000,000.00) is hereby appropriated out of the Post-War Reserve Account in the General State Fund established by ‘An Act to create a post-war reserve account in the General State Fund’ (P. L. 1944, r. 218), together with moneys derived from the sale of bonds pursuant to a bill now pending in the Legislature creating a debt of the State in the sum of thirty-five millions dollars ($35,000,000.00) to provide housing for veterans of World War IX and other people of the State, if the same becomes a law by sanction of the people, to establish and provide an emergency housing fund. The moneys in such fund shall be available for the payment of the cost of acquisition of real and personal property; any rents under lease; construction, reconstruction, alteration, repair or improvement, razing, salvage or transportation; maintenance, operations and management; equipment, furniture and furnishing, vehicles; services and expenses; all costs in connection with and for work appurtenant thereto, including incidental expenses in accomplishing the purposes of this act, and to defray the administrative expenses of the Authority required by the provisions of this act. No money shall be paid out of such fund except on warrant of the State Oommissioner of Taxation and Finance on vouchers certified or approved by the Administrator.”
The State Agencies-’ contention in this respect must be resolved against them. The construction of the 1946 act so sought by the State would constitute a limitation on the power of the Administrator (to sue and be sued), in contravention of the express provision of sec. 25 of the act (N. J. 8. A. 55:14(7-25). The clear intendment of the 1946 act is to enlarge and not to limit the scope of the powers given the Administrator under the 1944 act. These acts are in pari materia and therefore must be construed together. A third statute, in pari materia, should also be considered. This statute was L. 1946, c. 324, pp. 1363-1372 adopted by the people of this State at the general election on November 5, 1946. It was therein provided that “Bonds of the State of
The State Agencies’ argument that the court may not order the Director to perform his duty under this statute is not germane to the question of consent to suit. Logic should not permit a holding that where the State has consented to submit a matter for judicial determination, the court is duty bound to refuse to grant relief because in the ordinary course of events such matter was one for submission to administrative determination. Where a state has consented to suit, under statutes such as here involved, it may not defeat its consent merely by asserting that one of its officers has the sole power to make the determination involved in the suit to which it has thus consented. The claimant as an element of its case, however, is bound by the ordinary requirement that it prove the amount due under the contract and .that the certificate of performance has been issued (in this case such would include the warrant of the Director on vouchers certified or approved by the Administrator) or that it is arbitrarily withheld from it. Grobarchik v. Nasa Mortgage and Investment Co., 117 N. J. L. 33, 34 (Sup. Ct. 1936); Williams v. Hirshorn, 91 N. J. L. 419, 420 (Sup. Ct. 1918); 54 A. L. R. 1256.
The remaining questions raised by the State Agencies on this appeal relate to matters considered by the trial
For the reasons above stated the order of the Chancery Division of the Superior Court denying defendants-appellants’ motion for judgment of dismissal is hereby affirmed and the record is remanded to that court for further proceedings in ordinary course in the cause.
For affirmance—Chief Justice Vanderbilt, and Justices Case, Oliphant, Waci-ieneeld, Burling and Ackerson—6.
For reversal—None.