Ford Motor Co. v. Mayor & Town Council of Town of Kearny

• Decision Date: 04 March 1918
• Docket Number: No. 30.,30.
• Citation: 91 N.J.Law 671,103 A. 254
• Parties: FORD MOTOR CO. v. MAYOR AND TOWN COUNCIL OF TOWN OF KEARNY.
• Court: New Jersey Supreme Court

103 A. 254

91 N.J.Law 671

FORD MOTOR CO.

v. MAYOR AND TOWN COUNCIL OF TOWN OF KEARNY.

No. 30.

Court of Errors and Appeals of New Jersey.

March 4, 1918.

(Syllabus by the Court.)

Appeal from Supreme Court.

Mandamus by the State of New Jersey, on relation of Ford Motor Company, against the Mayor and Town Council of the Town of Kearny. From an order of the Supreme Court overruling a demurrer and awarding a peremptory writ, the defendant appeals. Affirmed.

Clyde D. Souter, of Newark, for appellant. Day, Day, Smith & Slingerland, of Newark, for appellee.

WHITE, J. This is an appeal from an order of the Supreme Court overruling a demurrer to an alternative writ of mandamus and awarding a peremptory writ commanding the town of Kearny to cancel of record certain liens, entered under section 9 of the act of 1884 (Act March 5, 1884 [P. L. p. 49]) against the landlord's land for unpaid bills for water introduced and supplied to it, without his knowledge and consent, by measure under contract with his tenant, for a garbage disposal plant which the tenant established on the land. The liens cover unpaid bills during a period of nearly three years, the town not having shut off the water upon default in payment of the first bill as in "duty" bound to do under the act.

Statutory liens upon the landlord's estate in leased real property for water rents or for water charges for water supplied thereon to the tenant must depend for their validity either upon the taxing power or upon contract.

If it is the taxing power that is relied upon, the imposition, in order to be constitutional, must be applied by uniform rules according to the true value of the property taxed or in accordance with special benefit to it as a property. Jersey City v. Vreeland, 43 N. J. Law, 638, affirming Vreeland v. Jersey City, 43 N. J. Law, 135.

The sale to a consumer of water by measure at a fixed price per thousand cubic feet is obviously not a tax dependent in amount in any way either upon the true value of the property which he occupies or upon any special benefit to that property. Such a consumer might be a banker occupying a property worth $100,000, hut using only $50 worth of natural water a year, or he might be a bottler or a milkman in a 20-foot store, with a basement, in the same block, which was worth only $1,000, but using $1,000 worth of water per annum.

The lien given by the statute, therefore, in case of water sold by measure must derive its vitality from the sale itself, as such; that is, from contract. Whatever the purchaser of the water had authority, express or implied, to bind by his contract, to that the lien under the statute will attach. Further than that it cannot go.

That an absolute stranger, a trespasser, or a mere licensee, by contract with the municipality for water to be "conducted and supplied" to my property without my knowledge cannot subject it to lien for the water so supplied is, of course, obvious; but the only reason that he cannot do so under the literal language of the statute in question is that he has no authority from me, express or implied, to bind my property by the contract. Clearly, therefore, the language of the statute is to be construed in the light of this underlying principle, for, under the well-established doctrine in this state, where two constructions of a statute are permissible, one of which would render it constitutional and the other unconstitutional, the constitutional construction is the one to he adopted. State v. Sutton, 87 N. J. Law, 192, 94 Atl. 788, L. R. A. 1917E, 1176, Ann. Gas. 1917 C, 91. Such a construction, therefore, limits the lien to those "premises to which the water was conducted and supplied" with the express or implied authority of the owner.

It is argued, however, that a municipality supplying water under the statute cannot, in reason and in good public policy, be required to search the title of every property to which water is supplied in order to ascertain the true owner. This is true, and the Legislature has properly protected the municipality against any such necessity by authorizing it to charge a minimum amount, of its own fixing, in advance, and to cut off the supply for nonpayment of any meter or other water bill at the expiration of the period which it itself fixes as the time when payment shall be made.

It is further said that there cannot, under any circumstances, be a lien against the owner's estate where the...