Wilson v. State Water Supply Comm'n

• Decision Date: 01 March 1915
• Docket Number: No. 4.,4.
• Citation: 93 A. 732,84 N.J.Eq. 150
• Parties: WILSON, Atty. Gen., v. STATE WATER SUPPLY COMMISSION et al.
• Court: New Jersey Supreme Court

93 A. 732

84 N.J.Eq. 150

WILSON, Atty. Gen.,

v. STATE WATER SUPPLY COMMISSION et al.

No. 4.

Court of Errors and Appeals of New Jersey.

March 1, 1915.

Swayze, Trenchard, Minturn, Black, White, and Terhune, JJ., dissenting.

Appeal from Court of Chancery.

Proceedings on the information of Edmund Wilson, Attorney General, against the State Water Supply Commission and others. A demurrer to the information was sustained (83 N. J. Eq. 32, 88 Atl. 183), and the Attorney General appeals. Reversed, and cause remitted.

On appeal from a decree of the Chancellor, whose opinion is reported in 83 N. J. Eq. 32, 88 Atl. 183.

This appeal brings up a decree of the Chancellor sustaining a demurrer to an information filed by the Attorney General to enjoin the carrying out of a contract between the State Water Supply Commission and the executors of the Joseph Wharton estate for the acquisition for state purposes of a tract of land at a purchase price of $1,000,000, to be secured by a mortgage on the land so purchased. The information avers that the State Water Supply Commission in making this contract was the agent of the state of New Jersey by virtue of a statute of this state (P. L. 1912, c. 318), and that the lands so purchased will be acquired by the state of New Jersey for the purposes set forth in such statute, and that the debt incurred in the acquisition of such lands for such purposes is a debt of the state within the meaning of article 4, § 6, par. 4, of the Constitution, and that the creation of such debt (which is in excess of $100,000 and not of the sort excepted by the Constitution) was not within the authority conferred upon said commission by the statute in question.

The constitutional provision is as follows:

"The Legislature shall not, in any manner, create any debt or debts, liability or liabilities, of the state, which shall singly or in the aggregate with any previous debts or liabilities at any time exceed one hundred thousand dollars, except for purposes of war, or to repel invasion, or to suppress insurrection, unless the same shall be authorized by a law for some single object or work, to be distinctly specified therein; which law shall provide the ways and means, exclusive of loans, to pay the interest of such debt or liability as it falls due, and also to pay and discharge the principal of such debt or liability within thirty-five years from the time of the contracting thereof, and shall be irrepealable until such debt or liability, and the interest thereon, are fully paid and discharged; and no such law shall take effect until it shall, at a general election, have been submitted to the people, and have received the sanction of a majority of all the votes cast for and against it at such election; and all money to be raised by the authority of such law shall be applied only to the specific object stated therein, and to the payment of the debt thereby created. This section shall not be construed to refer to any money that has been, or may be, deposited with this state by the government of the United States."

To this information the executors of the Wharton estate filed a general demurrer specifying as the grounds thereof that the contract set forth in the information was made by the State Water Supply Commission under statutory authority constitutionally conferred upon it, and that the Attorney General was not entitled to relief in a court of equity.

This demurrer was sustained by the Chancellor in an opinion in which the salient features of the contract in question are set forth with sufficient particularity, the general result reached by the opinion being that the debt created by such contract was that of the State Water Supply Commission and not that of the state of New Jersey.

The appeal taken by the Attorney General has been reargued at the suggestion of the court with especial reference to the question whether information or certiorari was the proper remedy.

Theodore Backes, Asst. Atty. Gen., John W. Wescott, Atty. Gen., and Edmund Wilson, of Red Bank, for appellant. J. Edward Ashmead and Frederick J. Faulks, both of Newark, for appellees.

GARRISON, J. (after stating the facts as above). A civil information is a legal proceeding in chancery older than the court of equity, whose equitable powers, when acquired, were termed "extraordinary" to distinguish them from its ordinary or legal jurisdiction.

Thus Blackstone says that:

In the Court of Chancery "there are two distinct tribunals: The one ordinary, being a court of common law; the other extraordinary, being a court of equity. The ordinary legal court is much more ancient than the court of equity." 3 Bl. Com. 47.

A generation earlier it was said:

"In the Chancery are two courts or rather two manners of powers, the one ordinary, wherein the proceedings are according to the laws and statutes of the realm; the other extraordinary, according to the rules of equity. This court, as a court of law, had heretofore great extent of jurisdiction and multiplicity of business. By this short view it appears that the matters determined in the Chancery according to the rules and methods of the law must in times past have created much business in the court and that at this day there must be sometimes proceedings in this court according to law."

The quotation is from a controversial pamphlet published anonymously in 1727 and referred to by Judge Story as "by Lord King (or whoever else was the author of the treatise entitled the Legal Judicature of Chancery stated)." 1 Eq. Jur. 44.

It is now known that it was written by Samuel Burroughs with the assistance of William Warburton, the famous religious controversialist. Life of Lord Hardwicke (1913) pp. 94, 95.

Judge Story is also authority for the statement that among the earliest writers of the common law, such as Bracton, Glanville, Britton, and Fleta (and he might have added The Mirror), there is not a syllable to be found relating to the equitable jurisdiction of the Court of Chancery. 1 Eq. Jur. 39.

It is to this period when the Chancery was a court of law and the Chancellor a common-law judge that we must refer those legal procedures in chancery of which information by the Attorney General was the most important, as it has proved to be the most enduring. Indeed, it is more than probable that these legal procedures arose in the aula regis itself and upon its dissolution were parceled out to the Chancellor because of his more intimate relations to the Crown. Certain it is that upon the breaking up of that Royal Council the Chancellor emerged as a distinct court having a legal jurisdiction closely connected with the royal prerogatives and duties.

This was in the time of Edward I, and the equitable jurisdiction of the court did not arise until the reign of Edward III.

Short of compiling a treatise from sources equally available to all, it must suffice to say that the legal jurisdiction of the Chancellor centered around two fundamental conceptions—the impeccability of the sovereign and the righteousness of his purposes toward his subjects. The King could do no wrong, and the Chancellor was the keeper of his conscience. From those conceptions it followed that, if a subject was wronged by the King, the Chancellor would redress it, and that, if all of the King's subjects suffered from an act unlawfully done in his name, the Chancellor, upon being so informed, would see that right was done.

Of this latter class was the cancellation of letters patent when made against law or upon untrue suggestion, whereby the regalia or common domain was diminished, which was done in chancery, not, however, upon information, but by scire facias, for the reason that the patent was a record in that court. 8 Bac. Abr. 609; 3 Bl. Com. 45, 48; Attorney General v. Sooy Oyster Co., 78 N. J. Law, 394, page 407, 75 Atl. 211; Van Shaich v. Riparian Com'rs, 82 N. J. Law, 219, 81 Atl. 1099.

With few exceptions, however, the redress of public injuries in the name of the King was instituted by the Attorney General by an information which, as the name imports, merely informed the Chancellor of the existence and nature of the public wrong; it being considered beneath the dignity of the King to pray for relief in his own courts, and also that the keeper of his conscience had but to be informed of a public wrong in order to right it.

Confining our attention to cases resembling in principle the one now before us, the essentials of this jurisdiction were that the information should be exhibited by the Attorney General as the representative of the sovereign and that it should refer to matters by which the public or public rights were affected by unlawful acts done in the name of the King or by some agency or instrumentality of his government.

These essentials of jurisdiction, being fundamental principles of the common law, survived the changes wrought by the Revolution, and exist in this country as a part of the common law, excepting where altered by constitutions or legislative enactments of which in this state there is no trace. It would be quite profitless to rehearse the changes in practice and forms of procedure that have been adopted in those jurisdictions in which this common-law proceeding still obtains, or to enumerate those in which, owing to the abolition of chancery or the merger of the courts, it has been measurably lost sight of. In the federal courts such actions are brought directly in the name of the United States by a bill in equity, and even in this state the information both as to its prayer and the relief sought no longer conforms strictly to the old landmarks. The removal of a landmark, however, does not destroy a title, and in all of its essentials this legal jurisdiction of chancery is maintained in this state, as evidenced by a large number of cases, a few of which may be cited at random. In Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393, 401, 18 Atl. 106, 109, the ratio decidendi was that "the...