State v. Mayor

• Decision Date: 21 December 1891
• Citation: 23 A. 129,54 N.J.L. 62
• Parties: STATE (SLINGERLAND, Prosecutor) v. MAYOR, ETC., OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

23 A. 129

54 N.J.L. 62

STATE (SLINGERLAND, Prosecutor)

v. MAYOR, ETC., OF CITY OF NEWARK et al.

Supreme Court of New Jersey.

Dec. 21, 1891.

(Syllabus by the Court.)

Certiorari at the prosecution of Andrew J. Slingerland to the mayor and common council of the city of Newark and others to review certain proceedings in condemnation of the prosecutor's land. Proceedings affirmed.

Argued November term, 1891, before Reed, Garrison, and Dixon, JJ.

Mahlon Pitney, for prosecutor.

Mr. Coult and Thos. N. McCarter, for defendants.

DIXON, J. This certiorari brings under review proceedings taken by the mayor and common council of the city of Newark in pursuance of the act of March 17, 1891, (P. L. 1891, p. 172,) to condemn lands of the prosecutor "for the purpose of laying down and constructing and maintaining a pipe line or lines" to be used in supplying said city with water for public use.

The first objection which the prosecutor urges against these proceedings is that the act does not purport to confer any power of condemnation, but merely prescribes how existing powers shall be exercised. This is not the fair meaning of the law. Its title is "An act to empower cities to acquire land for public use by condemnation,"and its chief enactment is: "The said city is hereby empowered to enter upon and take possession of the said land; and all title thereto for the purpose for which the same is taken shall * * * pass from "the said owners and parties interested to the said city." These terms import a grant of power. Very different language would have been employed to denote a mere regulation of existing authority.

It is next objected that the attempt to grant is inefficacious, because the uses for which land may be condemned are not specified. The words of the act authorize the condemnation of land "for any lawful public use or purpose."

It is not necessary to consider the abstract question whether the legislature may delegate the power of eminent domain for purposes as undefined as those for which the legislature itself may exercise it, viz., for any public use. The tenor of the present statute is not so broad; it only warrants the exertion of the power "for any lawful public use or purpose." This qualifying word "lawful" limits the uses intended, I think, to such as are sanctioned by the legislature as worthy of this prerogative power, so that a city proceeding under this act must show that it is seeking to acquire land for a purpose which the legislature, either in general laws or in special laws applicable to that city, has expressed its willingness to promote by the power of eminent domain. Thus interpreted, the statute comes within the principle for which the prosecutor contends,—that the legislature can delegate the power for such public uses only as the legislature specifically designates for its exercise.

The next question raised is whether the power is now invoked for such a lawful public use. The pertinent facts are that in pursuance of a statute entitled "An act to authorize any of the municipal corporations of this state to contract for a supply, or a further or other supply, of water therefor," approved April 2, 1888, (P. L. 1888, p. 366.) the East Jersey Water Company and the mayor and common council of the city of Newark made a contract, dated September 24, 1889, by which the company bound itself to construct works capable of supplying the municipality with water to the amount of 50,000,000 gallons per day, and to furnish therefrom to the city such water as might he necessary for the use of the city and its inhabitants at a stated price per 1,000,000 gallons for a period of 25 years, and the city agreed to take the water and pay the price. The contract also contained a provision giving to the municipality an option, to be exercised at any time prior to the expiration of one year after the completion of the works, of purchasing the works, with the water-rights and water supplying the same for the sum of $6,000,000, of which $4,000,000 were to be paid in cash or bonds on the acceptance of the works by the city, and $2,000,000, without interest, were to be paid in cash or bonds at the expiration of 11 years from the date of the contract. It was further stipulated that, if the municipality should exercise this option, then, until the end of said 11 years, the city should not use from said works more than 27,500,000 gallons per day, and the company should have the right to divert from the works whatever the city and its inhabitants did not use up to the amount of 27,500,000 gallons per day, and should keep all the works in good order and repair. The parties also agreed that, in case it should be found that any powers or rights held or possessed, or which might thereafter be acquired, by the municipality, for the condemnation of lands, water, or water-rights, might be advantageously used or exercised for the purposes of the contract, the municipality should put such power or rights in force, and the company should defray the cost and expense of so doing. On October 11, 1889, the city exercised the option secured to it by the contract. For the construction of the works contemplated by this agreement the land which the city now seeks to take is necessary as a part of the pipeline, and accordingly these proceedings were instituted in June, 1891. On these facts we are to decide whether the city is endeavoring to employ the power of eminent domain for a lawful public use. It is plain that the legislature has pointed out the supplying of water to municipalities, and especially to the city of Newark, as one of those public uses for which the right of eminent domain may be put in force. This appears on examination of the general law entitled "An act to enable cities to supply the inhabitants thereof with pure and wholesome water," approved April 21, 1876, (Revision, p. 720,) and the special laws relating to the city of Newark, to be found in P. L. 1800, p. 10; P. L. 1857, p. 19; and P. L. 1860, p. 442. Consequently the...