City of Newark v. State of New Jersey
| Decision Date | 07 May 1923 |
| Docket Number | No. 469,469 |
| Citation | 67 L.Ed. 943,43 S.Ct. 539,262 U.S. 192 |
| Parties | CITY OF NEWARK v. STATE OF NEW JERSEY |
| Court | U.S. Supreme Court |
Messrs. Geo. W. Wickersham, of New York City, and J. T. Congleton, of Newark, N. J., for plaintiff in error.
Mr. William Newcorn, of Plainfield, N. J., for the State of New Jersey.
The state of New Jersey recovered judgment against the city of Newark for $18,104.08 and costs, in an action brought in the state Supreme Court. The judgment was affirmed by the Court of Errors and Appeals, and the case is here on writ of error. It is based on a state enactment which is attacked on the sole ground that it violates the equal protection clause of the Fourteenth Amendment.
The state's right to recover depends upon the validity of an enactment of the state (chapter 252, Laws of 1907), which is sufficiently set forth in the decision of this court in Trenton v. New Jersey, 262 U. S. 182, 43 Sup. Ct. 534, 67 L. Ed. ——, handed down on this day.
In East Jersey Water Co. v. Board of Conservation & Development, 91 N. J. Law, 448, 453, 103 Atl. 853, 855, it is said:
'The statute requires payment 'for all such water hereafter diverted in excess of the amount now being legally diverted,' with the proviso that no payment be required until the legal diversion shall exceed one hundred gallons per day per capita. We are of opinion that 'legally diverted' means not a future diversion, but one now being exercised under a legal right, and that under this statute a legal abstractor may take what he was diverting in 1907, and, if that did not reach the statutory maximum of exemption, as much more as is required to make the total diversion one hundred gallons per day per capita for each of the municipalities supplied, without payment of the license fee.
'If, in 1907, the daily diversion exceeded one hundred gallons per capita, the amount then diverted, if lawful, may be taken without payment, and if it was less, no license fee can be imposed until it exceeds the statutory quantity.'
The complaint alleged that under the provisions of this act the city was 'permitted to divert * * * an average daily free allowance of water to the amount of 36,241,666 gallons, the said last mentioned amount being the amount of water which was being diverted by said municipality on June 17th aforesaid, the date when the act aforesaid became effective and operative,' and claimed for each of the years subsequent to July 1, 1914, a license fee of $1 per million gallons for the excess of the daily average diversion of water over the quantity above specified. The answer alleged that prior to the passage of the act of 1907, the city had acquired a plant capable of furnishing 50,000,000 gallons of water per day, and set up certain separate defenses. At the trial, the court on motion of the state, struck out the separate defenses; the facts were not in controversy, and judgment was given for the amount claimed. About the same time, the state also recovered judgment against the city of Trenton for the license fee imposed by the same act. Both cases were taken to the Court of Errors and Appeals, the highest court of the state, and there by one decision the judgments were affirmed. 117 Atl. 158. That court said:
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