THE PORT OF NEW YORK AUTHORITY, PLAINTIFF-RESPONDENT, v. MARYVONNE E. HEMING, JR., ET AL., DEFENDANTS, AND ELIZABETH M. CERVIERI AND JOHN A. CERVIERI, DEFENDANTS-APPELLANTS.
Supreme Court of New Jersey
Argued November 9, 1960—Decided January 23, 1961.
33 N.J. 144
The judgment below is reversed and the case is remanded because (1) the trial court erroneously refused to allow the plaintiff‘s expert to testify to the standard of care accepted by dentists administering anesthesia, and (2) even in the absence of expert testimony as to standard of care, the plaintiff submitted sufficient proof to avoid a dismissal at the end of his case.
For reversal—Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL and HANEMAN—6.
For affirmance—None.
Mr. Nelson G. Gross argued the cause for defendants-appellants, Elizabeth M. Cervieri and John A. Cervieri (Messrs. Gross and Gross, attorneys).
The opinion of the court was delivered by
FRANCIS, J. These proceedings were instituted by plaintiff, The Port of New York Authority, under
The action to condemn defendants’ property for the purpose indicated was instituted on July 28, 1958. The complaint recited that the Authority elected “pursuant to the option accorded to it” by
Some time prior to the hearing to fix the damages these defendants served and filed a notice that they would apply at the hearing for a trial by jury. The motion was made and denied because the Authority had elected to condemn in accordance with the procedure prescribed by the airport
The Authority has moved to dismiss the appeal, contending that the demand for jury trial and the attack upon the constitutionality of the election bestowed upon it with respect thereto should have been made immediately after the service of the complaint and order to show cause upon the defendants. The claim is that since title and possession had vested in it within six weeks after defendants were served, their jury demand about a year and a half later came too late. But defendants disclaim any effort or intention to interfere with the transfer of title or possession. The request for a jury was pertinent only to the issue of damages and was made only as to that aspect of the case. Furthermore, reversal of the judgment would not divest the title.
Study of the merits of the appeal requires reference to various clauses of the Constitutions and to a number of informative statutes.
Acquisition of property for public use by the state, county, municipality, or a public agency is generally controlled by the eminent domain act,
The Port of New York Authority is a public corporate entity, an arm of the States of New York and New Jersey, created in 1921 by compact between them for the purpose of coordination and development of the terminal, transportation and other facilities of commerce in, about and through the port of New York.
In 1947 the Authority was empowered to acquire property by condemnation for air terminal purposes.
“The commissioners shall proceed under such directions and rules as shall from time to time be fixed by the said judge to view the lands, to hear such evidence as they may desire, and to fix such sum, if any, that in their judgment will represent the fair value of the lands so taken. * * *.”
N. J. S. A. 32:1-35.17a .
The judge is not bound by the commissioners’ findings. He may review them and alter or reject them in such manner as will fairly protect the interests of the parties, and his “review may be made either with or without further hearing.” Ibid. After the judge has ascertained the compensation to be paid, judgment in that amount is to be entered. Any party aggrieved by the judgment “may appeal.” Sections 15f-l, as amended
Section 15 of the 1931 act,
As the result of the 1956 amendment, therefore, the Legislature, presumably having in mind the provision of Section 1 of the eminent domain act,
The first question to engage our attention arises from defendants’ contention that the option clause of the 1956 amendment of Section 15 transgresses
The crucial issue is projected by defendants’ assertion that the option clause of the 1956 amendment deprives them of equal protection of the law in violation of the
In the absence of any constitutional mandate to the contrary, establishment and regulation of the manner and method of exercising the power of eminent domain has long been recognized as a prerogative of the Legislature, subject only to the due process clauses of the federal and local constitutions. Crane v. Hahlo, 258 U. S. 142, 42 S. Ct. 214, 66 L. Ed. 514 (1922); A. Backus, Jr. & Sons v. Fort Street Union Depot Co., 169 U. S. 557, 18 S. Ct. 445, 42 L. Ed. 853 (1898); United States v. Jones, 109 U. S. 513, 3 S. Ct. 346, 27 L. Ed. 1015 (1883); Morris May Realty Corp. v. Board, etc., County of Monmouth, 18 N. J. 269, 275 (1955); Marin Municipal Water Dist. v. Marin Water & Power Co., 178 Cal. 308, 173 P. 469 (Sup. Ct. 1918); Jahr, op. cit. supra, § 185; 18 Am. Jur., Eminent Domain, § 308. The legislative discretion as to the procedure to be followed within that framework is very broad. Secombe v. Milwaukee & St. Paul Ry., 23 Wall. 108, 90 U. S. 108, 23 L. Ed. 67 (1874). No particular form or mode of action is required. All that is essential is that in some appropriate way, before
Methods of determining the damages to be paid are numerous throughout the country. General, special and alternate procedures abound in the various states. Jahr, op. cit. supra, § 186; 6 Nichols, op. cit. supra, § 24.1; 29 C. J. S. Eminent Domain § 214d. As Orgel said: “The mode of procedure in condemnation cases in the United States is wholly a creature of statute and the legislatures have not been sparing of their progeny.” 1 Orgel, op. cit. supra, § 8. On the national scene, until the adoption of Rule 71A of the Rules of Civil Procedure in 1951, the federal courts were required to conform to state practice in eminent domain actions. 7 Moore‘s Federal Practice, § 71a.03 (2d ed. 1955). Divergent practices among the states and within the same state led the Federal Advisory Committee on rules to the belief that uniform procedure in the federal system was desirable. In the general statement accompanying the 1948 draft of Rule 71A it was suggested that as far back as 1931 in the various states there were 269 different methods of judicial procedure in various classes of condemnation cases and 56 methods of nonjudicial or administrative procedure. 7 Moore, op. cit. supra, at p. 2730. In Union School District of City of Jackson v. Starr Commonwealth for Boys, 322 Mich. 165, 33 N. W. 2d 807, 809 (Sup. Ct. 1948), the Supreme Court of Michigan, speaking on the subject of multiple and optional procedures, said:
“In the report of the Judicial Council of Michigan, January 1931, a careful study was made of seventeen different methods provided for by which various State agencies could exercise the right of eminent domain. Some of the methods apply only to certain agencies, while others apply to many agencies. Criticism has frequently been
leveled at this system because of the confusion which it causes, but the recommendation of the Judicial Council of a single method was never submitted as a Constitutional amendment. Alternative methods are still left [open] to certain public agencies. That pursued by plaintiff is proper and is not in any way affected by the fact that plaintiff might have pursued a different method.”
Out of the Federal Committee study came Rule 71A. Although substantial uniformity for condemnation actions was achieved thereby, certain qualifications were added. In short, under Rule 71A(h) if Congress has created or creates any special tribunal to hear certain cases arising out of the exercise of the federal power of eminent domain, that procedure must be followed. Otherwise any party may have a jury trial on demand, unless the trial court in its discretion orders that “because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it.” Federal Rules of Civil Procedure, rule 71A. Nichols notes that Congress has specially constituted a tribunal for trial of such cases in instances of expropriation by the Tennessee Valley Authority Act and in the District of Columbia. 6 Nichols, op. cit. supra, p. 334.
The Tennessee Valley Authority Act does not grant trial by jury.
When alternative methods of condemnation are prescribed by the Legislature, in one of which either party at some stage of the action may obtain a jury trial, and in the other neither has such trial, and the “option” to select the course to be followed is expressly given to the public agency, the instinctive first reaction is that the unilateral choice is unfair. But we must be mindful that the State or an arm thereof has the authority to condemn property for public use. It alone institutes the proceedings (except perhaps in those rare instances when the citizen employs mandamus to compel their institution, if that can be said to constitute institution of the action). If alternative procedures existed the agency would make the choice as to which to pursue, even if the words “at the option of” were not present.
Thus, since there is no constitutional right to trial by jury, the test of validity is not whether alternative procedures are established to be used at the election of the public entity but (1) whether the objective of each one is to achieve just compensation for the taking and whether each one, in and of itself, satisfies the demands of due process, i. e., notice and fair hearing before an impartial tribunal competent to reach a just result, and (2) whether the public agency may be classified so as to warrant the separate legislative treatment.
It is obvious in this instance that the proceeding prescribed for arriving at just compensation under the eminent domain act or under the airport terminal act is sufficient unto itself as a due process mechanism. Each one is designed to produce and is capable of producing a just result. No one suggests to the contrary. If there were inequality within the framework of either procedure, for example, if
“There is no reason why three indifferent men, selected by the chief justice from the body of the state, for their probity and independence, should not, in a mere matter of valuation, exercise as just a judgment, and be in all things as discreet and impartial, as a jury of the vicinage.”
In the ultimate the conclusion to be drawn from the cases and texts is that establishment of various as well as alternate methods of procedure for the valuation of property being expropriated is a matter of legislative discretion. Where election of one of two modes is given to a public condemnor (which may be classified specially) the choice is valid so
As has already been indicated, many cases are to be found wherein the right of a public agency to elect to proceed under one or the other of two legislatively created procedures has been recognized as valid. The fact that material differences existed in the two forms of procedure did not alter the result. Constitutional requirements were deemed satisfied so long as each method fairly provided for the achievement of just compensation. United States v. 243.22 Acres of Land, 129 F. 2d 678 (2 Cir. 1942), certiorari denied Lambert v. United States, 317 U. S. 698, 63 S. Ct. 441, 87 L. Ed. 558 (1943); United States v. Alexander, supra; United States v. Certain Lands, 43 F. Supp. 578 (D. C. E. D. N. Y. 1942); Lybrand v. Forman, 259 Ala. 354, 67 So. 2d 4 (Sup. Ct. 1953); City of Oakland v. Parker, 70 Cal. App. 295, 233 P. 68 (D. C. App. 1924); Evel v. City of Utica, 103 Kan. 567, 175 P. 635 (Sup. Ct. 1918); In re Opening of Gallagher Ave. in City of Hamtramck, 300 Mich. 309, 1 N. W. 2d 553 (Sup. Ct. 1942); Muskingum Watershed Conservancy Dist. v. Funk, 132 Ohio St. 593, 9 N. E. 2d 512 (Sup. Ct. 1937); Town of Cookeville v. Farley, 171 Tenn. 260, 102 S. W. 2d 56 (Sup. Ct. 1937); City of Chattanooga v. State, 151 Tenn. 691, 272 S. W. 432 (Sup. Ct. 1925); Doughty v. DeFee, 152 S. W. 2d 404 (Tex. Ct. Civ. App. 1941); Ewing v. Board of Sup‘rs of Nelson County, 131 Va. 471, 109 S. E. 474 (Sup. Ct. App. 1921); Board of Sup‘rs of Louisa County v. Proffit, 129 Va. 9, 105 S. E. 666 (Sup. Ct. App. 1921); State ex rel. Allis v. Circuit Court, 189 Wis. 265, 207 N. W. 252 (Sup. Ct. 1926). In the two New York cases, United States v. Certain Lands, supra, and United States v. 243.22 Acres of Land, supra, the Federal District Courts were concerned with
Pacific Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640, 137 P. 1119, 50 L. R. A., N. S., 652 (Sup. Ct. 1913), dealt with a somewhat analogous situation. The Constitution of California provided for trial by jury in eminent domain cases. It also created the Railroad Commission, gave it jurisdiction over utilities as well as the authority to hear, determine and fix compensation without jury intervention in condemnation cases involving utilities. In the cited case it was argued that such practice was violative of the 14th Amendment of the Federal Constitution since it deprived utilities of the trial by jury that was given to all other persons whose property was taken for public use. The contention was overruled, the Supreme Court saying:
“The requirement of a jury and of a prepayment of damages is not a part of the federal Constitution, nor of that of many of our states. It is in those jurisdictions quite a common practice to create boards and commissions to exercise the power on behalf of the state, and to make awards between litigants. It is certainly true that in the vast modern development of public utilities in their multifarious activities, in their complicated inter-relations, where a taking of property is involved, a great saving of time, and a more just award may be expected from a learned, skilled, and dispassionate tribunal such as the Railroad Commission than can ever be hoped for from the haphazard verdicts of juries. And very good reasons therefore appear why, for the benefit of the state as well as for the benefit of the public service companies, awards as to the latter should be made by this body, and not by a jury. It is therefore concluded that no violence is done to the rights of petitioner under the Constitution of the United States by this proviso of the state
Constitution authorizing the Railroad Commission to exercise the power of eminent domain and assess damages for a taking of property.” 137 P., at p. 1137.
See also, Kennebec Water Dist. v. City of Waterville, 96 Me. 234, 52 A. 774 (Sup. Jud. Ct. 1902).
The remaining question is whether the Port Authority may be specially classified for purposes of eminent domain proceedings. We have no doubt that it may be so treated. Nichols properly observes that the rule of equal protection applies fully in the framework of a specific mechanism for ascertaining value within a particular class of condemnors. But the operation of that guaranty does not demand that the procedure to condemn by the variant classes of condemnors be the same. The action may be classified and adapted to the peculiar conditions and problems inherent in the character of the condemnation. 1 Nichols, op. cit. supra § 4.15[2]. The principle of common application is that if there be any reasonably conceivable basis for the separate treatment the legislation will not be voided. Robson v. Rodriquez, 26 N. J. 517, 524 (1958). So far as eminent domain proceedings are concerned, the equal protection clause does not contain a mandate for exact uniformity of procedure. The Legislature may classify litigation and adopt one type of procedure for one class and a different type for another. Dohany v. Rogers, supra. In the Dohany case the United States Supreme Court accepted the fact that eminent domain proceedings were being conducted by the State Highway Commissioner on behalf of the state as in itself a valid basis for the exercise of legislative judgment to provide a different procedure from that prescribed for the exercise of condemnation by a private corporation. 281 U. S., at p. 369, 50 S. Ct., at p. 302. Certainly separate classification in the case of such an important arm of the sovereign States of New Jersey and New York as the Authority should not present a more formidable constitutional obstacle. (Here it may be noted that the New York legislation contains no grant of jury trial in Authority condemnation cases in that
There are other realistically conceivable reasons for special treatment for the Authority in this field. In the laying out and construction of bridges and tunnels and their extensive approaches in the Hudson River waterfront area, many large and small lots and tracts of land of various kinds, vacant, residential, business and industrial, would be required. Complex problems of administration and valuation would be met. Moreover, the choice of locale for construction is limited to the Port vicinity at points on opposite sides of the River, making coordination necessary in the expropriation proceedings. The principle that a straight line is the shortest distance between two points presumably cannot be ignored. Accordingly, we believe sufficient factors are present to support the legislative judgment that the Authority should be classified separately for eminent domain procedure purposes. More particularly, in the light of the whole problem, establishment of the alternative modes of proceeding and in giving the Authority the option of selecting the one to be followed cannot be regarded as being without any reasonable justification. Manifestly, where many types and sizes of properties are being taken and the problems arising therefrom are complex, greater expedition and quicker understanding may be expected from an experienced judge than from a jury of laymen. In the present undertaking of the Authority, which concerns only the construction of an additional deck on the George Washington Bridge so that a substantial part of the existing approaches may be utilized, 40 tracts were the subject of this one action. And undoubtedly those parcels represent only a part of the total acquisition necessary. In such a context the language of the Federal District Court in Via v. State Commission on Conservation, etc., 9 F. Supp. 556, 563 (D. C. W. D. Va. 1935), affirmed 296 U. S. 549, 56 S. Ct. 245, 80 L. Ed. 388 (1935), is pertinent:
“If, because of the large number of tracts of land involved or for other reasons, the general statute was believed to be impracticable or awkward of operation, the Legislature had an undoubted right to provide for condemnation by a procedure more conveniently fitted to the nature of the proceedings; provided, of course, that the new statute in itself was not invalid. And the mere fact that its provisions varied from those of the general statute did not render it invalid.”
That statement represents generally the basis for the special non-jury proceedings incorporated in the Tennessee Valley Authority Act. In fact, it seems to provide in large measure the reasons which impel the various Federal District Courts to eliminate jury trials on application under Rule 71A. See United States v. Delaware, Lackawanna & W. R. R., 264 F. 2d 112 (3 Cir. 1959), certiorari denied 361 U. S. 819, 50 S. Ct. 63, 4 L. Ed. 2d 65 (1959); United States v. Buhler, 254 F. 2d 876 (5 Cir. 1958); United States v. 2792.82 Acres of Land, 114 F. Supp. 76 (D. C. E. D. S. C. 1953). And in our judgment the same factors may well have influenced our Legislature in enacting the amendment with which we are concerned here. Whether the course adopted in the federal domain, which lodges in the judiciary the authority to decide if jury trial should be had, is better or wiser is not a matter for judicial determination under the circumstances of this case. The wisdom of granting to the Authority the choice of the particular procedures involved here must be argued before the legislative tribunal.
Naturally, it is implicit in the grant that the option will be used reasonably by the Authority. In connection with the accomplishment of a project such as the one under discussion, an election to acquire one tract by the general eminent domain proceeding, with its trial by jury on appeal from the award of commissioners, and the next one by the air terminal act procedure, could find no justification in the 1956 amendment to
In conclusion, it may be said that the clauses of the federal and state Constitutions on which defendants rely do not prohibit a state from establishing different rules of procedure in eminent domain cases for different classes of cases or of litigants, provided the variations relate merely to matters of procedure, and do not operate to deprive any property owner of substantial equality in the adjudication of his rights. So long as the Legislature provides a fair and equitable inquiry, in which the parties interested are allowed to be heard and present evidence, and are protected in their right to have just compensation, they are not deprived of the equal protection of the law because other classes of cases have been provided with a different method or a different tribunal for accomplishing the same result. See Marin Municipal Water Dist. v. Marin Water & Power Co., supra; Pacific Telephone & Telegraph Co. v. Eshleman, supra; Kennebec Water Dist. v. City of Waterville, supra; Manchester Housing Authority v. Fisk, supra.
Accordingly, the judgment is affirmed.
PROCTOR, J. (dissenting). With today‘s decision, The Port of New York Authority becomes the only litigant in the State of New Jersey with the exclusive right in condemnation proceedings to determine whether trial shall be by jury. I must dissent, because I think that
Is a property owner afforded equality of treatment, within the meaning of the above-outlined principles, when the Authority as opposing party litigant alone has the right to decide whether trial shall be by jury? Otherwise stated, is there something so peculiar about the status of the Authority as a litigant that it may justifiably be put in a class apart from condemnee-litigants and be afforded the important advantage of selecting what tribunal shall decide the amount of just compensation? I don‘t think so. The majority, in an exhaustive opinion, has not cited a single case where a public agency is given a similar option and I know of none. Furthermore, I do not believe that the cases which are cited are apposite to the issue before us for decision.
The majority relies in part, for example, on cases which sustain condemnation procedures prescribed by the Tennessee Valley Authority Act. Welch v. Tennessee Valley Authority, 108 F. 2d 95 (6 Cir. 1939), certiorari denied Welch v. United States ex rel. and for use of Tennessee Valley Authority, 309 U. S. 688, 60 S. Ct. 889, 84 L. Ed. 1030 (1940); United States ex rel. Tennessee Valley Authority v. Puryear, supra,
Furthermore, I do not see how any of the cases cited by the majority for the proposition that a public agency may elect to proceed under one or another of several legislatively created procedures is authority for the issue before us. Only the New Hampshire and the two New York cases concerned alternative condemnation procedures for determining com-
As mentioned above, the remainder of the cases which the majority cites for the proposition that a condemning agency may select one or another of several legislatively created procedures do not involve trial with or without a jury. More significantly, these cases concern a choice of procedures which by its nature could not involve a question of equal protection. Union School District of City of Jackson v. Starr Commonwealth for Boys, supra, is typical. There the condemning agency was taking land for the erection of a school. Under one state statute, the agency was required first to negotiate with the condemnee before initiating condemnation proceedings. Under another statute negotiations prior to taking were unnecessary. The school district chose to proceed under the latter statute; and the Michigan Supreme Court held that the choice of procedure did not violate the condemnee‘s constitutional rights. As the majority here notes, the State or its agencies alone institute condemnation proceedings; the condemnee, except in rare instances, cannot. The right to take land by eminent domain as distinct from determination of compensation is so fundamental an attribute of sovereignty that, given an admitted public use, no hearing need be afforded a condemnee. It therefore seems to me that a condemnee cannot claim denial of equal protection because the condemning agency is afforded a choice of procedures for the taking. But that is not the issue here.
The majority has enunciated its adherence to a principle which should be dispositive of the case before us. It says:
“It is obvious in this instance that the proceeding prescribed for arriving at just compensation under the eminent domain act or under the airport terminal act is sufficient unto itself as a due process mechanism. Each one is designed to produce and is capable of producing a just result. No one suggests to the contrary. If there were inequality within the framework of either procedure, for example, if the Authority were given and the property owner were denied a right of appeal, [citations omitted] or the right to introduce
evidence of comparable sales, or offers to sell or purchase [citation omitted], in one mode of procedure which the condemnor had the option to select and did select in the particular case, a deprivation of equal protection of law would exist.” (Italics supplied)
The majority expressly says that a statute giving a condemning agency a unilateral right of appeal from a compensation award would be unconstitutional. The ultimate purpose of such an agency in appealing from an award is to achieve a redetermination of the compensation at a lower amount. Similarly, realistically viewed, it seems to me the Authority will exercise its option under
Applying logically to the facts of the present case the majority‘s principle that a unilateral option within the framework of a statutory procedure would be invalid, I take it that if
“In the courts, parties similarly situated are entitled to equal rights and privileges. The Constitution forbids discrimination between them.” Id., 224 N. Y., at p. 397, 121 N. E., at p. 105.
For affirmance—Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS and HALL—4.
For reversal—Justices PROCTOR and SCHETTINO—2.
Submitted December 21, 1960—Decided January 23, 1961.
Mr. Russell E. Watson for plaintiff-respondent, The Port of New York Authority (Mr. Robert S. Tobin, of counsel).
Mr. Nelson G. Gross for defendant-appellant, Elm Land Co., Inc. (Messrs. Gross and Gross, attorneys).
PER CURIAM. The issues in this appeal, which was certified on our own motion prior to argument in the Appellate Division, are the same as those presented in Port of New York Authority v. Heming and Cervieri, 33 N. J. 144.