(dissenting). No one can deny the need of Trenton and many other municipalities for off-street parking facilities, and therefore no one can question the grant of the power of condemnation to municipalities for this purpose. Even property presently used by private owners for furnishing parking facilities to the public may be so acquired by the municipality, if by doing so the public will be provided with greater parking facilities than the private owners are supplying and if the condemnation is made in good faith.
The question here is whether there has been compliance with these conditions. In its brief and at the oral argument and again at the reargument the city reiterated that it intended to build a multi-story ramp garage on the premises in question. When this was questioned by the defendants, counsel for the city agreed at the reargument that the city *480would put its determination with respect thereto in binding legal form, and the decision of the case was delayed pending such action. In due course counsel for the city advised the court by letter that the city was unwilling to commit itself to the position counsel had taken in his brief and at the oral arguments. Erom this we can only draw one inference, i. e., that the use to which the city would put the property after condemnation would result in no greater parking facilities for the public than it is now obtaining through private ownership. In these circumstances the so-called condemnation would not be a taking of property for a public purpose, which is a fundamental prerequisite of any condemnation, since no public purpose would be served by a taking where no increase in parking facilities would result therefrom. In these circumstances, without more, the condemnation proceedings would be fatally defective in law. When the facts are examined in the light of the city’s new position taken after the reargument, it would seem that the proceedings constitute a misuse of the condemnation statute, for they will not obtain the result intended by the statute; and this makes imperative a plenary inquiry on the question of whether the proceedings are directed to the fulfillment of a public purpose within the powers of eminent domain. The courts have never permitted statutes to be used in such a way as to pervert their true objective by a mere colorable compliance with their requirements.
The Constitution forbids the condemnation of property for private use; and this is ultimately a judicial question after full inquiry. When land is thus taken, ostensibly for a public use, but in reality for a private use, the invasion of the individual’s constitutional right of property is remedial by judicial action. An abuse of the statutory discretion and power is as objectionable here as in other fields of governmental action; compare City of Cincinnati v. Vester, 281 U. S. 439, 50 S. Ct. 360, 74 L. Ed. 950 (1930). See 65 A. L. R. 504.
It is urged by the city that if it does not acquire the defendants’ property now, there is always the danger that *481the owners will sell it for a department store, or other multistory building, and so decrease the amount of parking facilities available to the public. There is no substance to this argument, for if the property were so sold (and it is interesting to note that no present danger of this eventuality is shown) the city could quickly condemn the property before any new building could be erected.
The individual owners assert that the city is not acting in good faith in condemning their property, and the conduct of the city as outlined herein bears strongly upon that issue. There is, moreover, another factor which deepens the impression that the action of the city in condemning the property is not a "bona fide exercise of the power. Directly opposite the parking lot in question is an equally sizable piece of property owned by the city itself. An ancient building known as the Joseph Wood School stands thereon. This building has not been used as a school for 30 years. At the present time only a few rooms are used for the storage of surplus books from the adjoining public library. This piece of property is obviously quite as desirable for parking purposes as the property of the defendants. Is there any reason why the city should not use this practically abandoned property for parking facilities and thus double, without constructing any new buildings, the parking facilities of this paTt of Trenton? That it has not done so, but has elected to take proceedings that will deprive the defendants of a valuable business without adding to the available parking facilities, constitutes evidence that entitles the defendants to a plenary trial on the issue of the city’s good faith, a matter that cannot be disposed of, as was done here, on a motion for summary judgment, Mayflower Industries v. Thor Corp., 15 N. J. Super. 139, 155-157 (Ch. Div. 1951), affirmed for the reasons expressed therein, 9 N. J. 605 (1952).
The necessity of such a trial to protect the defendant property owners is rendered more acute by the fact that under the statutes now on the books the city may without competitive bidding lease the property acquired by condemnation to a private individual or corporation to conduct as a *482parking lot. Obviously sucb an individual or private corporation would enter into such an arrangement only with the hope of making a profit out of it. The possible danger to the public welfare and morals inherent in such an arrange-, ment does not need to be diagramed. It is so apparent as to require in the particular circumstances of this case the clearest proof of the good faith of the city before it should be permitted to exercise the power of condemnation. Prom the standpoint of the individual owners of the parking lot it is as unjust as it is ironic to think that they must submit to having a valuable business taken away from them in the guise of serving the public interest without there being any increase in the parking facilities in the city, only to find that their business may be turned over by the city to another individual or private corporation to conduct at a profit.
I would reverse the judgment, below and direct a plenary trial of the city’s right to condemn the property.
Mr. Justice Heher has authorized me to say that he joins in this opinion. For affirmance — Justices Oliehant, Wacheneeld, Bur-ling and’Jacobs — 4. For reversal — Chief Justice Vanderbilt and Justice Heher — 2. -