76 N.J.L. 271 | N.J. | 1908
The opinion of the court was delivered by
The writ in this case has brought here for review the proceedings of the board of sewerage of the town of Morristown for the construction of sewage disposal works for that municipality within the bounds of the township of Hanover. The proceedings were taken under the act of 1902. Pamph. L., p. 371.
The first objection to be considered is the constitutionality of the act. It is assailed, first, as a special act because it is said to apply only to towns incorporated prior to its passage. This contention is based on the first sentence of the act, which makes it applicable to any town “which has been incorporated under any general or special law.” We think the interpretation sought to be put on these words is too narrow. The language may naturally be construed as including any town which has been incorporated at the time proceedings are begun. In Butler v. Montclair, 38 Vroom 426, we sustained the constitutionality of an act which applied only to towns “whenever there has heretofore been constructed” an outlet or connecting sewer. It was held that the word “heretofore” related not to the time of the passage of the act, but to the time of incorporation of the town, whether before or after that date, and earlier cases were relied on to justify
The act is assailed also because by its title it relates only to incorporated towns, and does not- therefore point to an intention to legislate with reference to the construction of disposal works in townships. This contention is answered by our decision in Newark v. Orange, 26 Vroom 514, where we held' that an act entitled “An act to provide for drainage and sewerage in cities of this state” authorized cities to carry their sewers through adjacent townships to- tidewater. The court said: “It is a matter of common knowledge that there are cities in the state which have not within their limits an available outlet for sewage. For such cities an act would be futile which did not authorize the entrance upon adjacent territory. The title of this act, making provision for the relief of all cities, clearly suggests that it will be so framed as to furnish all the means and instrumentalities requisite to make it effective in the various 'localities and situations to which it extends. It must be presumed that the lawmaker will so mould the act as to give relief in every case and adapt it to the wants of every political district of the class, so that it will, in fact and in effect, be a general law.” The same reasoning is applicable to incorporated towns. The well-known density of population in this state naturally suggests that an effective act for the sewerage of incorporated towns of which all may avail themselves, would be so drawn as to authorize sewers or disposal works outside of the municipality. The case is not distinguished by the fact that it may be necessary that sewers have an outlet on tidewater, while there is no such necessity that sewage disposal works be erected outside the municipality. The necessity may be as great in one case as in the other. Even if there is not a strict necessity that disposal works should be located outside the municipality, it is so manifestly desirable that such works should be located away from the densely populated centres that the title of the act would naturally suggest the possibility.
The argument that the act attempts to vest in Morristown legislative or police powers to be exercised within the political
Passing from tire question of the validity of the statute to its effect, the most serious objection urged against the present proceedings is that the consent of the township of Hanover to the erection of the disposal plant has never been obtained. That objection is open in the present case, as well as in the pending suit by the township of Hanover as prosecutor, since the present prosecutors are taxpayers and entitled to challenge the expenditure of public money in building disposal works, if the works cannot legally avail the town of Morristown.
It is not suggested that the consent of Hanover is made necessary by the act of 1902. The argument is that it is required by prior or subsequent legislation, evincing a legislative policy.. Four acts are relied upon: (1) an act of April 9th, 1892 {Pamph. L., p. 452); (2) an act of June 13th, 1895 {Pamph. L., p. 822); (3) section 63 of the General Township act of 1899 {Pamph. L., p. 397); (4) an act of October 29th, 1907 {Pamph. L., p. 707).
The act of 1892 is entitled “An act to allow towns, villages er 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 sewage receptacle or sewage disposal works.” An attempt was made to repeal this act by “An act concerning townships” (Eevision of 1899). Pamph. L.} p. 372. It may be doubtful whether an act which both by its title and its provisions applies to towns, villages .and other municipal corporations can, under the constitutional provisions, be repealed by an act which by its title relates only to townships, but it is unnecessary to dwell upon this question for a reason presently stated.
The act of 1895 is entitled “An act to regulate the location of pest houses, crematories and other objectionable
The section of the act of 1899 which is relied upon follows sections authorizing townships to construct sewers, and is placed under the heading of sewers and drainage. It is evidently meant to restrict the right of townships to locate disposal works within another municipality and not to protect townships from the works of other municipalities. It is a part of the scheme for sewers to be built by the township. If this were not so, a different result would necessarily have been reached in Philadelphia Trust Co. v. Merchaniville, 4-6 Vroom 451, recently decided. The point was distinctly madé in that case that the borough of Merchantville was not authorized by law to build a sewage disposal plant in the adjoining township of Pensauken. The court disposed of the case without referring to the Township act of 1899, evidently because it was thought that the question was entirely governed by the Borough act of 1897.
All of these acts were passed before the act of 1902, under which Morristown is proceeding. That act not only carefully omits any restriction as to the place where a disposal works may be built, but in express terms authorizes the construction of disposal works within or without the town (section 1). This power is repeated in section 11. In neither section is the consent of any other municipality required. This omission is most significant in view of the other legislation requiring such consent, which we must presume was present to the mind of the legislature. It is made more emphatic because in section 11, immediately following the authority to construct disposal works, provision is made for an agreement between the board of sewerage and the authorities
It is quite true that the act of 1902 contains no express repeal of the acts of 1892, 1895 or 1899, that implied repealers are not favored, and that there is no necessary repugnancy between an act authorizing a town to build sewage disposal works and an earlier act requiring the consent of a municipality before another can build such works within its bounds. But even when there is no express repeal, and no necessary repugnancy, if it is plain that it is the legislative intent to embrace the whole subject or to provide a scheme complete in itself, the later act supersedes the earlier. Roche v. Jersey City, 11 Vroom 257; De Ginther v. New Jersey Home, 29 Id. 354; Camden v. Varney, 34 Id. 325. The rule does not rest strictly upon the ground of repeal by implication, hut upon the principle that when the legislature frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. Roche v. Jersey City, supra. The ques
The act of 1902, both by its title and its provisions, assumes to provide a complete scheme by which incorporated towns may construct, operate and maintain a system of sewers. Nothing necessary for that purpose is omitted, and we think the legislative intent is clear that in this respect incorporated towns should be governed by this act alone.
It seems to be thought by counsel for the prosecutor that the act of 1902 is modified by the act of 1907. Pamph. L., p. 707. This act was approved after these proceedings were begun, but, passing by all other questions that may be raised, we think it clear that the act does not apply to the case of incorporated towns proceeding under the act of 1902. It can, by its terms, apply only to municipalities where there is a municipal board having charge of the sewers therein. The board of sewerage, under the act of 1902, does not have charge of the sewers, but only of their construction; section 9 expressly limits the existence of the board to the time of the completion of the work. Again the act of 1907 is applicable only to municipalities with a board or commission having charge of the finances of the municipality. Morristown does not seem to come within this requirement. And section 8 of the act of 1907 makes it quite clear that the act was meant only for cities.
The next contention of the prosecutors is that Morristown had not secured the consent of the state sewerage commission as required by section 7 of the act of March 21st, 1900. Pamph. L., p. 113. The act requires that plans shall be submitted to the state commission and that it shall be unlawful, without its approval, to construct any plant from which the affluent is to
One of the sewerage commissioners of Morristown is Eugene S. Burke, who is a member of the firm of Pruden & Burke. Just prior to the determination of the sewerage commissioners as to the location of the disposal plant, and apparently in contemplation of that approval, Pruden & Burke bought the land in question, and it is said that Burke’s personal interest in the land vitiates the official action of the board of which he was a member. His good faith is not impugned. In fact he seems to have acted from public spirit in buying the land before it was known that it would be wanted by the municipality, and at a time when it could be bought more cheaply. After his purchase he and his partner- immediately offered to convey to the town such part of the land as it wanted without profit to themselves, and they subsequently made an offer in writing on terms which seem to have been advantageous to the town. It is possible that they may be held to have acquired the land in trust for the town, but it is unnecessary, as the case now stands, to consider the question of Mr. Burke’s good faith. The rule which is appealed to by the prosecutors relates to proceedings of a judicial character and rests upon the principle that no one should be a judge in his own cause. Whether the proceeding is of a judicial character or not is the
We think the present proceeding was legislative, not judicial.
The determination of the place of location of the disposal works was a part of the general plan or scheme which the act required the sewerage commission to adopt and submit to the governing body of the town. That body in turn, after a public hearing, might accept, modify or reject the plan. If they accepted, it must still be submitted to the voters at a special election, of which notice was required to be given. The action of the sewerage commissioners, therefore, was only a preliminary step to legislative action on the part of the voters themselves, and was not in itself final or binding. It is perhaps too much to call such a recommendation of the sewerage commissioners a legislative act; it certainly is not judicial. We think Mr. Burke’s interest as an owner of the land did not vitiate the proceedings.
In proceedings of this character, where the approval of the voters is required, a definite plan must be submitted. The criticism of the present proceedings is that no piece of ground in either I-Ianover township or Morris township was designated with precision. The report of the board of sewerage designated the location as “near the road dividing the township of Morris from the township of Hanover, and near the old burnt mill, said disposal works to be constructed without the limits of the town of Morristown and in either the township of Morris or in the township of Hanover, as shall be considered most desirable as the work progresses.” The statute (section 4) requires the board of sewerage commissioners to determine whether the system shall extend throughout the town, or, if in parts of the town only, in what parts; through what streets it shall be constructed; in what manner the sewage shall be disposed of, and if by connecting with the disposal works without the limits of the town, the general location of such connecting sewer or sewers. This language indicates that it was not the exact and precise, but only the general location of the disposal works that was to be determined in advance. It
The last objection argued applies to the contract only. It is said to be unauthorized because at the time it was made the town did not own the land on which the disposal works were to be built. We think it a sufficient answer that some six months before the contract was signed the commission received a written offer to convey the land from Pruden & Burke, which seems to be still open, acceptance having been delayed only because the present controversy arose, and that the commission was authorized to acquire the land by condemnation and had passed a resolution authorizing their counsel to apply for a commission. The conclusive answer, so far as the present prosecutors are concerned, is that no other location would comply with the vote of the people adopting the plan of the board of sewerage. In this respect the prosecutors are in laches.
The proposed location of the disposal works was made public as early as February 26th, 1907, when it was presented to the board of aldermen. Due notice was given of a hearing before that board. There was then an opportunity to secure a modification of the plan. None seems to have been suggested that affected the location of the disposal works. The plan was approved by the board of aldermen on March 22d. Notice was given of an election to be held April 30th. Although in form the question submitted to the people was the acceptance of the act of 1902, in substance it was the acceptance of the proposed plan for a sewer system. The plan was accepted by a vote of 1,031 to 59. As far as the records show the first objection came on May 8th. It is obvious that any change in the location of the disposal works would or might be a radical change in the plan, upon which the voters have not been, and cannot by virtue of any statutory provision be, consulted.
In view of the substantial unanimity for the proposed plan it is altogether probable that a majority of the voters would not approve of a change, especially as the only change pro
The proceedings are affirmed, with costs.