US Trust Co. of New York v. State

353 A.2d 514, 69 N.J. 253

• Court: Supreme Court of New Jersey
• Decided: June 28, 1976
• Docket: Probable Jurisdiction Noted June 28, 1976
• Status: Published

Opinions

Per Curiam.

The judgment is affirmed, substantially for the reasons set forth in the opinion of Judge Gelman, 134 N. J. Super. 124 (Law Div. 1975). The observations which follow are occasioned by Justice Pashman’s suggested remedy in the Gaby suit.¹

Whatever persuasive force might be accorded the argument that as a matter of policy the Port Authority should devote more of its energies and resources to the mass transit field, the fact remains that the remedy fashioned by our Brother is neither pressed for by Gaby on this appeal nor within the powers of this Court to direct and enforce.

Gaby’s class action complaint for a declaratory judgment that the 1962 Covenant was unconstitutional asked for “multifarious relief,” including a request that the Port Authority be directed “to formulate and submit to the court a plan for the development of mass transit facilities within the Port District,” 134 N. J. Super, at 131. However, the trial judge, having concluded in the United States Trust do. suit that “the repeal legislation was a reasonable and hence valid exercise of the states’ police power which is not prohibited by the Contract Clause of either the Federal or the State Constitution,” id. at 197, found it unnecessary to reach the issue of the 1962 Covenant’s asserted invalidity. He therefore dismissed Gaby’s complaint, id. at 198, without discussing the requested relief of a direction for development of a mass transit plan, on which issue there was neither testimony nor argument at the trial level.

In his brief filed in the Court after direct certification of his appeal, 68 N. J. 175 (1975), Gaby conceded his limited purpose in pursuing the appeal as being “to preserve the issue of the constitutionality of the 1962 Covenant.” The point of this in turn was, as he put it, to furnish “an alternative ground for affirming the decision below.”² Whatever issues may have been preserved by his appeal and whatever desire there may have been to present “all the issues,” the fact remains that Gaby’s brief raises and discusses only the validity of the Covenant in constitutional terms. No argument is made there for any special relief; and, understandably, the Port Authority has likewise not briefed the question at all in this Court. At oral argument the subject was adverted to only in a limited fashion.

Ordinarily, we would have no occasion to decide an issue which, while portentous in itself, has become so remote and peripheral to the central thrust of this litigation. However, inasmuch as the minority opinion raises and discusses in ex-tenso this question of considerable public significance, namely, the involvement of the Port Authority in mass transit and particularly the propriety of this Court ordering as a specific remedy the submission of a plan for development of mass transit facilities, we overlook whatever infirmities may exist in the record before us, compounded by the practical disadvantage of not having the views of the parties, and proceed to address the point.

The 1921 Compact between the States of New York and New Jersey, whereby the Port Authority was created, N. J. 8. A. 32:1-4, envisioned the adoption of a Comprehensive Plan for the development of the port. N. J. 8. A. 32Direction was given to the Port Authority in the Plan itself “to proceed with the development of the port of New York in accordance with said comprehensive plan * * N. J. 8. A. 32 :l-33. That the Authority’s involvement in transportation matters was contemplated is obvious from a reading of this and other portions of the Comprehensive Plan as well as of the Compact; but it requires a quantum leap to derive therefrom a mandate (as distinguished from the power) to develop a plan for a particular kind or method of transportation, to wit, mass transit. It is not without significance, for instance, that the legislature has provided that the Authority may make recommendations for the increase and improvement of transportation facilities, N. J. S. A. 32:1-13, which by definition includes railroads and any facility for the “transportation or carriage of persons or property,” N. J. 8. A. 32 :l-23; but nowhere is it mandated that such recommendations be made. A mandate such as that contemplated by the minority opinion is not something to be inferred by the courts but rather is a singularly appropriate subject for specific legislative directive, conspicuously absent here. Cf. Del. Riv. & Bay Auth. v. N. J. Pub. Emp. Rel. Comm’n., 112 N. J. Super. 160, 165 (App. Div. 1970), aff’d o. b., 58 N. J. 388 (1971).

If, then, the Authority is in the position of being empowered (as we acknowledge) rather than mandated to act in the area of mass transit, its exercise of that power becomes a matter of discretion and judgment. As is made abundantly clear by the voluminous record in this ease, the trial court’s opinion, and the concurring and partially dissenting opinion here, the Authority has more than once in recent years broached the question of whether it should pursue a policy of encouraging mass transit and has determined that it shall not. The remedy suggested in the minority opinion is designed to overrule that decision. As such it is in the nature of the former prerogative writ of mandamus, now invocable under proceedings for relief in lieu of prerogative writs, Rule 4:69.

However,- mandamus will not lie if the duty to act is a discretionary one and the discretion has been exercised. As Justice Heher explained, in Switz v. Middletown Twp., 23 N. J. 580 (1957), mandamus is “a coercive process that commands the performance of a specific ministerial act or duty, or compels the exercise of a discretionary function, but does not seek to-interfere with or control the mode and manner of its exercise or to influence or direct a particular result.” 23 N. J. at 587. As we have sought to demonstrate, the circumstances before us do not at all invite or accommodate the remedy proposed. This is so because the Authority (whose function is clearly not ministerial) has in fact exercised its discretion, even though that exercise has resulted in the rejection of a policy favoring mass transportation. Being a judgment decision its wisdom may be open to dispute; but as to the propriety of this Court’s refusal to intrude on the underlying policy determination, there can be no qiiestion in the circumstances before us. And this not as a response to some procedural deficiency but because of our respect for the fundamental substantive principle embodied in mandamus.

Finally, we observe that in this particular area of bi-state operations, there is close and continuing supervision of the Port Authority by the other branches of government. Hence, the proposed remedy would not only tend to usurp the influence over the Authority vested in the Governors of the States of Hew York and Hew Jersey, but would also intrude upon the functions of the legislatures of the respective States, whose task it is in the final analysis to enact appropriate legislation and take such other action as may be required to remedy whatever deficiencies may exist with respect to mass transit.

Affirmed.

1 Justiee Paskman would order the Port Authority to complete pending projects and to “formulate and present plans and suggestions for a regional mass transportation scheme to the Legislatures of New York and New Jersey * * * in an expeditious fashion and within a fixed period of time.” Post at 288.

2 Cross Motion for Certification of Plaintiff-Respondent, Daniel M. Gaby.