State v. Mayor

• Decision Date: 23 January 1896
• Citation: 58 N.J.L. 262,33 A. 740
• Parties: STATE (VAN REIPEN et al., Prosecutors) v. MAYOR, ETC., OF JERSEY CITY et al. STATE (MORRIS CANAL & RANKING CO. et al., Prosecutors) v. SAME. STATE (MONTCLAIR WATER CO., Prosecutor) v. SAME. STATE (WHELIHAN, Prosecutor) v. SAME. STATE (FAVIER, Prosecutor) v. SAME. STATE (ROCKAWAY & HUDSON CO., Prosecutor) v. SAME.
• Court: New Jersey Supreme Court

33 A. 740

58 N.J.L. 262

STATE (VAN REIPEN et al., Prosecutors)

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

STATE (MORRIS CANAL & RANKING CO. et al., Prosecutors)

v. SAME.

STATE (MONTCLAIR WATER CO., Prosecutor)

v. SAME.

STATE (WHELIHAN, Prosecutor)

v. SAME.

STATE (FAVIER, Prosecutor)

v. SAME.

STATE (ROCKAWAY & HUDSON CO., Prosecutor)

v. SAME.

Supreme Court of New Jersey.

Jan. 23, 1896.

(Syllabus by the Court.)

Actions by the state, on the prosecution of Van Reipen and others, the Morris Canal & Banking Company and others, the Montclair Water Company, John Whelihan, Horace H. Favier, and the Rockaway & Hudson Company, against the mayor and aldermen of Jersey City and the Jersey City Water Company, to review the award of a contract. Verdict set aside.

Argued November term, 1805, before DEPUE, VAN SYCKEL, and GUMMERE, JJ.

F. W. Stevens, Collins & Corbin, Allan L. McDermott, and Dickinson, Thompson & McMasters, for prosecutors.

John A. Blair, Spencer Weart, Wm. D. Guthrie, J. B. Vredenburgh, and Wallis, Edwards & Bumstead, for defendants.

VAN SYCKEL, J. The writs are prosecuted for the purpose of reviewing the award of a contract by Jersey City to the Jersey City Water Company for the supply of pure water to Jersey City for a term of 25 years. Three questions upon which, in the judgment of the court, the case turns, will be considered:

1. Is the act of 1888, p. 366, constitutional? It provides "that it shall be lawful for the board of aldermen, common council, city council, aqueduct board, board of public works, water commissioners, township committees, town committee, or other board, body or department of any municipal corporation in this state, having the charge or control of the water supply of any such municipal corporation to make and enter into a contract or agreement. * * * Provided, that in any municipal corporation having a board of public works, and a board of finance and taxation, if the contract and agreement be made and entered into by any such board of public works it shall not be binding upon such municipal corporation until the same shall have been approved by such board of finance and taxation." Jersey City, at the time this act was passed, was the only city in the state which had a board of public works and also a board of finance and taxation. It is therefore insisted that this proviso, which applies only to Jersey City, makes the act special and local. This act was not designed to effect any change, nor does it in any respect change the body to which the contract for a water supply is committed in any of the local governments of the state. An act creating these different boards, and at the same time lodging that power in one city in a board of works, in a second in the common council, and in a third in water commissioners, might be regarded as infirm in that respect. The control of the water supply is left by this act, in every municipality, precisely where it was previous to its passage. The purpose and substance of this legislation is to confer upon the various local governments in the state the right to make a contract for water supply through the department which controls that subject by whatever name it may be called. The name of the board or department is not material, nor is it the substance of the act; for, after specifying various boards which may have the control of the subject, the act says, "or other board, body or department of any municipal corporation in this state having the charge or control of the water supply." The act must be interpreted as if it was simply in the following form: "That it shall be lawful for the board, body or department of any municipal corporation in this state, having charge or control of the water supply of any such municipal corporation, to make and enter into a contract," etc. The act is general. It creates no dissimilarity. It is uniform in its effect, committing the subject everywhere to the same department; that is, to the persons who have control of the water supply. The diversity of name by which such department may be designated, and of the manner in which it is constituted, was not created by the act of 1888, and is wholly immaterial, so far as concerns the generality of this statute. By the act of 1874, p. 508, § 9, the board of public works of Jersey City cannot make a contract for the payment of any sum of money which exceeds $2,000 without the concurrence of the board of finance and taxation. The department in Jersey City in which, at the time of the passage of the act of 1888, control of the water supply was lodged, was the board of public works and the board of finance and taxation. The act of 1888, therefore, without the proviso, embraced Jersey City, and required the concurrent action of the two boards, which together constituted the department in charge or control of the water supply for Jersey City. The proviso made no change whatever in the legal effect of the act. The draftsman of it manifestly had in his mind the fact that in Jersey City the department in control of the water supply consisted of two separate boards, and, out of abundant caution, he inserted the proviso so that Jersey City might not be excluded from the benefit of its provisions, and the act thereby rendered special and local. The act is constitutional.

2. Under the act of 1895, p. 769, can any part of the water rights granted by charter of the legislature to the Morris Canal Company be condemned for the use of Jersey City? The contention is that the canal charter of 1824 constitutes a valid contract, which cannot be impaired, and that its water rights, which, under and by authority of its charter, are now devoted to a public use, cannot be taken under the power of eminent domain. Every government which regards the welfare of its people will exert its highest power to preserve the public health and safety. To that end a supply of pure water is essential. To secure it involves the exercise by the state, not only of the power of eminent domain, but also of the police power. These necessities of the public are supreme, and private rights must yield to them. That I understand to be the accepted rule. The right, however, to take private property, or the property of a corporation, must be clearly granted by the legislature. In State v. Montclair Ry. Co., 35 N. J. Law, 328, there was no such grant of power. The charter of the Morris Canal, and the fact that its water rights are held for a quasi public use, furnish no insurmountable obstacle to the appropriation of such rights to the use of the state, for the preservation of the public health and safety, upon just compensation being made. Newark v. Watson, 56 N. J. Law, 667, 29 Atl. 487; In re New York, L. & W. R. Co., 99 N. Y. 12, 1 N. E. 27; Central Bridge v. Lowell, 4 Gray, 474; Springfield v. Connecticut R. R., 4 Cush. 63. The question is whether the act of 1895 authorizes the taking of the water rights of the Morris Canal for a water supply to the municipalities of the state. The act provides that when the proper board or other municipal authorities of any city of this state shall deem it proper to acquire land, water, water rights, or property, within or without said city, for the purpose of supplying said city with water, the power of condemnation may be resorted to as in the act provided. The act contains this proviso: "That no lands, water, water rights, or other property purchased, condemned or held by any municipality in this state for the purpose of a water supply and used or intended to be used for such purpose shall be condemned, or taken under the authority of this act." If, in this statute, authority can be found to take the water rights of the Morris Canal, Jersey City may invoke in its aid the right of eminent domain. It is immaterial whether the grant of power is contained in the express words of the statute, or arises by necessary implication. Its force and value, when established are no more potent in the one case than in the other. The act provides for condemnation of land, water, water rights, or property, when the governing authorities deem it proper to acquire them. This language is not, in my judgment, broad enough to include lands and water rights held and owned by the Morris Canal for its uses under state authority. The grant of power is not more extensive than that usually vested in local governments to acquire lands for public highways. Such a grant, under adjudged cases in this court, does not carry the right to extinguish the franchises of railroad corporations. Every...