State v. Mayor and Aldermen of Jersey City

• Decision Date: 15 October 1920
• Citation: 111 A. 544
• Parties: STATE v. MAYOR AND ALDERMEN OF JERSEY CITY.
• Court: New Jersey Supreme Court

111 A. 544

STATE

v. MAYOR AND ALDERMEN OF JERSEY CITY.

Court of Errors and Appeals of New Jersey.

Oct. 15, 1920.

Appeal from Supreme Court.

Action by the State of New Jersey against the Mayor and Aldermen of Jersey City. Prom judgment for the State, defendant City appeals. Affirmed.

John Bentley, of Jersey City, for appellant.

Thomas F. McCran, Atty. Gen., and William Newcorn, Asst. Atty. Gen., for the State.

GUMMERE, C. J. This action was instituted by the state against the city of Jersey City, to recover from it the sum of $22,885.34, being the amount of certain license fees alleged to be due to the state from the city for the years 1912 to 1918, inclusive. These license fees were assessed upon the municipality by the board of conservation and development, in the execution of the powers conferred upon it by the act of June 17, 1907, entitled "An act to establish a state water supply commission, and to define its powers and duties, and the conditions under which waters of this state may be diverted," and supplemental legislation.

The eighth section of the act referred to (P. L. 1907, p. 637) provides that:

"Every municipality, corporation or private person now diverting the water of streams or lakes with outlets for the purpose of a public water supply shall make annual payments on the first day of May to the state treasurer for all such water hereafter diverted in excess of the amount now being legally diverted"

—the payment to be considered as a license fee, and its amount to be fixed by the board of conservation and development at a rate of not less than $1, or more than $10 per 1,000,000 gallons.

The complaint in the case shows that at the time of the enactment of the statute in question the city of Jersey City was diverting from the Rockaway river daily 38,400,000 gallons, and concedes that the diversion to the extent stated was permitted by the state. The license fees which are sought to be recovered were assessed by the board of conservation and development upon the water diverted by the city from the Rockaway river in excess of the number of gallons just mentioned, and was at the rate of $1 per 1,000,000 gallons.

The city of Jersey City by its answer denied the power of the board of conservation and development to assess these license fees against it, upon the ground that by section 2 of the statute in question it is provided that— "Nothing in this act contained shall be construed to take from any municipality in this state the right to use and take all the water which it has the right to use or appropriate by purchase or condemnation."

And it avers that—

It comes within the protection of this provision of the statute because "it became entitled to divert daily 50,000,000 gallons from the Roekaway river under contracts with the East Jersey Water Company, executed in October, 1895, and on April 22, 1897, respectively, which contracts gave the defendant the alternative of purchasing a supply of water from the said Rockaway river amounting to 50,000,000 gallons daily, or the right to purchase the entire water plant of said East Jersey Water Company, which right to purchase the said defendant exercised through a resolution passed by the street and water board of Jersey City, on or about January 10, 1900, approved by the board of finance commissioners on or about January 17, 1900, and approved by the mayor January 18, 1900."

After the answer came in, a motion was made by the Attorney General to strike it out upon the ground that it constituted no defense to the state's claim, and after argument heard upon the motion it was granted by the Supreme Court, and subsequently judgment was ordered to be entered in favor of the state.

From the judgment entered pursuant to this order the city of Jersey City has appealed.

The arguments both of the Attorney General...