State v. Village of S. Orange

• Decision Date: 24 February 1893
• Citation: 26 A. 75,55 N.J.L. 254
• Parties: STATE (INHABITANTS OF TOWNSHIP OF MILLBURN, Prosecutors,) v. VILLAGE OF SOUTH ORANGE.
• Court: New Jersey Supreme Court

26 A. 75

55 N.J.L. 254

STATE (INHABITANTS OF TOWNSHIP OF MILLBURN, Prosecutors,)

v. VILLAGE OF SOUTH ORANGE.

Supreme Court of New Jersey.

Feb. 24, 1893.

(Syllabus by the Court.)

Certiorari by the state, at the prosecution of the inhabitants of the township of Millburn against the village of South Orange, to test the validity of a city ordinance authorizing defendant to construct sewers to carry its sewage into the township of Millburn. Ordinance void.

Argued February term, 1893, before MAGIE and VAN SYCKEL, JJ.

E. L. Price, B. A. Vail, A. L. MeDermott, and R. Wayne Parker, for prosecutors.

James M. C. Morrow and Henry Young, for defendant.

VAN SYCKEL, J. The question involved in this controversy is whether, under existing laws, the village of South Orange has the right to construct sewers for the purpose of carrying its sewage outside of its own corporate limits into the township of Millburn, to be there disposed of upon lands purchased for a sewage receptacle. The validity of the ordinances of the defendant corporation, authorizing this work, is controverted for a number of reasons, which have been elaborately argued; but, in the view taken by the court, the discussion will be within narrower limits.

The act of 1891 (Pamph. Laws, p. 124, § 7) gives the defendant the right to buy lands either within its corporate limits, or beyond its limits, for a sewer receptacle. Section 8 provides for condemnation in case an agreement cannot be had with the landowner. Under this grant of power the defendant has purchased the lands proposed to be used for that purpose, in said township of Millburn. After this purchase was made, and after the passage of the act of 1892, hereinafter referred to, the defendant corporation passed an ordinance for the construction of a sewer to said lands in the township of Millburn. The relator denies the right of the defendant to make a sewage receptacle of lands within the township of Millburn without the consent of its township committee, and to sustain that position relies upon the act of April 9, 1892, (Pamph. Laws, p. 452.) Section 1 of this act provides that it shall be lawful for municipal corporations to secure by purchase or condemnation, or otherwise, in any township or other municipal corporation, such land or real estate as may be necessary for the erection or construction of any sewage receptacle for the disposal of the sewage of the municipality, in which a system of sewers has been, or may thereafter be, constructed. The second section provides that it shall be lawful for any municipal corporation, when it has heretofore secured, or may hereafter secure, such land or real estate in an adjoining township, for the purpose mentioned in section 1, to proceed to the work of preparing such land for the disposal of its sewage, and to use such land for the purpose designated, when it has secured the consent, by resolution, of the township committee within whose boundaries such lands are located. This section expressly provides that lands secured prior to the passage of this act for a sewage receptacle may be used for that purpose when the consent of the political district where such lands lie is procured; and this, by necessary implication, excludes the right so to use them without such consent previously obtained. The third section declares that all acts and parts of acts inconsistent with, or not conforming to, the provisions and requirements of this act, be, and the same are thereby, repealed, in so far as their operation may conflict with this act. The act of 1891 does conflict with this act, in allowing lands to be taken and appropriated to sewage disposal without the consent of the township committee, and to that extent the prior act is repealed. To meet this objection the defendant insists, in the first place, that in this respect the act of 1892 is unconstitutional; that its title shows no retrospective intent, and gives no indication of an intention to legislate in regard to lands previously purchased, but only in relation to lands to be acquired in the future. The title of the act Is, "An act to allow towns, villages, or other municipal corporations to acquire and use lands or real estate in an adjoining township or other municipal corporation for use for the construction of a sew age receptacle, or sewage disposal works." The cardinal rule must be observed, that the act must be upheld in its integrity, if it can be done by any reasonable interpretation of the language used in the title. It may be read, "An act to allow towns, etc., to acquire lands for use for the construction of a sewage receptacle." It seems to me that the draughtsman of the act inserted after the word "corporation," in the title, the words "for use," to make it more clear that it was intended to extend the operation of the act to lands then owned by the municipality. In my judgment, it will be too narrow a construction of the language of the title of this act to adjudge that any part of this legislation is outside of it. If a rule so stringent as that by which the defendant proposes to test the constitutionality of this act of 1892 is applied to the title of the act of 1891, it will be difficult to uphold the validity of the latter act, in so far as it authorizes the construction of a sewer by the village of South Orange outside of, and beyond, its own territorial limits.

In the second place it is claimed that the title to these lands, which had been acquired by the defendant under legislative authority previous to the passage of the act of 1892, is not only a right of property, which cannot be divested by the lawmaker, but also that the legislature cannot forbid the use of the lands for the purpose for which they were acquired. The ground taken is that the real estate and property of a municipal corporation are protected by those clauses of the fundamental law which secure the inviolability of contracts, and that such property is subject to legislative control to no greater extent than all other property in the state. In the Dartmouth College Case, 4 Wheat. 518, Mr. Justice Story says: "It may be admitted that corporations for mere public government, such as towns, cities, and counties, may in many respects be subject to legislative control. But it will hardly be contended that, even in respect to such corporations, the legislative power is so transcendent that it may, at its will, take away the private property of the corporation, or change the uses of its private funds acquired under the public faith." Mr. Justice Washington, in the same case, said that "in respect to public corporations, which exist only for public purposes, such as towns, cities, etc., the legislature may, under proper limitations, change, modify, enlarge, or restrain them, securing, however, the property for the use of those for whom, and at whose expense, it was purchased." The argument of Chief Justice Marshall was directed to establishing the distinction between public corporations, and private corporations exercising their functions in a measure for the public benefit. He held that, although the trustees of Dartmouth College derived their power from a regal source, they did not partake of the spirit of their origin; and while he classified that institution with private corporations, whose rights and properties are within the protection of constitutional guaranties, he declared that if the act of incorporation was a grant of political power, if it created a civil institution to be employed in the administration of government, or if the funds of the college were public property, the subject was one in which the legislature of the state may act according to its own judgment, unrestrained by any limitation of...