Gaslight Co. of City of New Brunswick v. Borough of S. River

• Decision Date: 09 August 1910
• Parties: GASLIGHT CO. OF CITY OF NEW BRUNSWICK et al. v. BOROUGH OF SOUTH RIVER.
• Court: New Jersey Court of Chancery

77 A. 473

77 N.J.E. 487

GASLIGHT CO. OF CITY OF NEW BRUNSWICK et al.

v. BOROUGH OF SOUTH RIVER.

Court of Chancery of New Jersey.

Aug. 9, 1910.

Suit by the Gaslight Company of the City of New Brunswick and another against the Borough of South River. Preliminary injunction granted.

The Gaslight Company of the City of New Brunswick, one of the complainants, was incorporated by an act of the Legislature approved March 19, 1851 (P. L. p. 460). The title of the act was "An act to incorporate the Gaslight Company of the City of New Brunswick." It authorized the company to manufacture and sell gas for the purpose of lighting the streets, buildings, manufactories, and other places situated in New Brunswick, and to lay down gas pipes and erect posts and burners in the streets, alleys, lanes, avenues, or public grounds thereof, and to do all things necessary to light the said city and the dwellings, stores, and other places situated therein. The act by its terms was to continue in force for 30 years. The company therefore was given the franchise until March 19, 1881.

On February 3, 1870 (P. L. p. 108) the Legislature passed an act entitled "A supplement to 'an act to incorporate the Gaslight Company of the City of New Brunswick,' approved March nineteenth, eighteen hundred and fifty-one." This act recites that it was represented that certain persons residing outside of the corporate limits of the city of New Brunswick were desirous of being supplied with gas by the New Brunswick Company, and that they desired that the company be invested with power to so supply them. Thereupon the company was authorized to continue and lay its gas mains so far beyond the corporate limits of the city of New Brunswick and within the counties of Middlesex and Somerset as they might from time to time deem expedient and necessary to supply gas to the persons who then or thereafter might reside outside of the said corporate limits, and to erect gas posts and burners, supply gas, and charge for the same in as full and ample a manner as they had authority under their charter to do the same thing in the city of New Brunswick. On September 28, 1875, the amended Constitution went into effect, whereby the Legislature was prohibited from passing private, local, or special laws granting to any corporation, association, or individual any exclusive privilege, immunity, or franchise whatsoever, and directing it to pass general laws providing for such cases. Article 4, § 7, par. 11. The Legislature was thereby prohibited from passing any special act which conferred corporate powers, and they were directed to pass general laws under which corporations might be organized and corporate powers of every nature be obtained. On April 21, 1876, the Legislature passed an act (P. L. p. 235) by which it was provided that it should be lawful for any corporation theretofore or thereafter created under or by virtue of any law of this state, at any time before the expiration of its charter or of the period named in its certificate of organization, to file in the office of the Secretary of State a certificate under its common seal, attested by the signature of its presiding officer, declaring its desire that the period of its existence as such corporation should be extended for any time therein mentioned not exceeding 50 years, and that upon making and filing such certificate the period of the existence of such corporation should be extended as declared in such certificate as fully as if the said period had been named in the original charter or certificate of organization of such corporation. On May 29, 1878, the New Brunswick Company filed in the office of the Secretary of State a certificate of the character provided for in the act of 1876 for the object and with the purpose of extending the duration of its existence for a period of 50 years from the time of the expiration of its original charter. Subsequently the Public Service Corporation of New Jersey was organized, to which corporation the gas company leased all its property and franchises except its franchise to be a corporation, which leased rights subsequently became vested in another corporation called the Public Service Gas Company, which is one of the complainants in this suit.

The complainants now desire to lay gas mains and gas pipes within the limits of the borough of South River, a borough which is located within the boundaries of the county of Middlesex, and they made application to the mayor for permission to open the streets and highways for that purpose. This application was in compliance with the requirements of an ordinance of the borough which has been in operation since July 19, 1905. Section 1 of the ordinance provides that no corporation or individual shall dig up a street or road for any purpose whatever without a permit in writing from the mayor, and that the mayor may refuse such permit unless the applicants shall enter into a bond to the borough in the penal sum of $1,000 with surety to be approved by the mayor, conditioned that the applicant will carefully make such digging or excavation and be responsible for any damage or injury that may occur to any one by reason of neglect or carelessness in prosecuting the work, and that they will properly refill and ram and puddle the earth and suitably restore the pavement and leave the pavement and street in as good condition as it was before. The mayor refused to grant the permission sought by the complainants. No reason whatever is assigned for his action. The complainants then proceeded with the contemplated work, but were interfered with by the borough authorities, and they now seek an injunction to prevent the borough and its officers from interfering with or preventing the laying of gas mains beneath the surface of the streets of the borough.

Frank Bergen, for the motion.

Alan H. Strong, opposed.

HOWELL, V. C. (after stating the facts as above). The following objections are interposed to the relief prayed by the complainant: First, that the title of the act of 1870 (P. L. p. 108) does not express the object which the Legislature had in view, namely, the extension of the powers of the corporation beyond the limits of the city of New Brunswick. I do not think the defendant can prevail on this point The act has been in force for 40 years, and gas mains have been laid under its authority for nearly 30 years, during all of which time the public have acquiesced, and the complainant by such acquiescence has been induced and encouraged in the extension of its gas mains beyond the city limits for the accommodation of the people residing there. Under these circumstances this court on a preliminary motion ought not to hold that the right does not exist. The question seems to be one which might very properly be litigated in the common-law courts. There are, however decisions which uphold the view of the complainant:

In Gifford v. New Jersey Railroad Company, 10 N. J. Eq. 171, the facts were that the Newark & Bloomfield Railroad Company was incorporated in 1852 (Act March 26, 1852 [P. L. p. 467]). It had authority to construct a railroad from some suitable place in Bloomfield township to intersect the Morris & Essex Railroad Company in Newark, and also to intersect the railroad of the New Jersey Railroad & Transportation Company. In 1853 a supplement was passed to this act authorizing the railroad company to bridge the Passaic river. The title to the supplement was "A supplement to an act entitled 'an act to incorporate the Newark and Bloomfield Railroad Company,' approved March 26, 1852." (Act Feb. 24, 1853 [P. L. p. 176]). It was said by the court with reference to the constitutional provision: "The design of this provision is declared to be to prevent improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other. The objects in that statute, however, are parts of the same enterprise and cannot be said to have any improper relation to each other."

In Paterson Railway Company v. Grundy, 51 N. J. Eq. 213, 26 Atl. 788, this court passed upon a similar question. In that case the title of the original act was "An act to incorporate the Paterson and Little Falls Horse and Steam Railroad Company," and it conferred power to construct and operate a railway from some point in Paterson to Little Falls (Act April 9, 1866 [P. L. p. 1068]). A supplement thereto passed in 1870 had this title: "A supplement to 'an act to incorporate the Paterson and Little Falls Horse and Steam Railroad Company,' approved April 9, 1866" (Act March 14, 1870 [P. L. p. 529]). This gave authority to the railway company to construct its railway longitudinally through certain designated streets in the city of Paterson. It was argued that this was unconstitutional for the reason that it violated the provision of the Constitution above referred to. Concerning it Vice Chancellor Green says: "It is next claimed that the act of 1870 is void because the object of the act is not expressed in the title. It was argued that the object of the act is to confer upon the company named in the title authority to construct and operate a railroad in certain streets in the city of Paterson solely; whereas, the title of ...