83 N.J.L. 332 | N.J. | 1912
Tlie opinion of the court was delivered by
The questions in this ease are interesting and most important, and, as far as we know, of first impression. We pass the question as to the extent of the powers and rights acquired by the consolidation of the two water companies, and do not decide whether thereby the right of the Plainfield company was so extended as to justify it in supplying water io municipalities under the Union company charter which it was not authorized to supply under its own. The Plainfield company was, by its charter, authorized to supply not only
We have then a case where a private corporation is under a public duty to supply the citizens of several municipalities with water, an article of prime necessity for life and health, and an effort on the part of one municipality to condemn for its own purposes an essential portion of the plant. The effort, if successful, will not only dismember the plant of the water company, but will prevent it from supplying water to citizens of municipalities other than the city of Plainfield, since the city seeks to condemn the source of supply. It is unnecessary to hold that the rights of citizens of these municipalities are increased by the fact that some of the contracts provided for a supply from a specific source at Netherwood, since the public duty is the same under contracts that name no specific source. The city of Plainfield is attempting to
The legislature may authorize one public agency to condemn property already devoted to a public use by another public agency, but the intention to grant such authority must be manifested in express terms - or by necessary implication. 15 Cyc. 614. In State, Mayor and Aldermen of Jersey City, v. Montclair Railway Co., 6 Vroom 328, the railroad company sought to condemn land held bjr the city for a prospective reservoir. In New York, Susquehanna and Western Railroad Co. v. Paterson, 32 Id. 408, the city sought to open a street across a railway freight yard. In both cases the right was denied. The Court of Errors and Appeals has recently, by inference, recognized the princijfie, at least in a case where the pre-existing user will be destroyed or seriously impaired. Paterson, &c., Railroad Co. v. Mayor and Aldermen of City of Paterson, post p. 535. In the present case, the condemnation of the property sought by Plainfield will destroy the water-supply of other municipalities. Has the legislature given it such power ?' The city claims the power under the act of April 21st, 1876. Comp. Stat., p. 823. 'This authorizes the citj' to purchase of anjr wafer company owning water works within the city all its real estate, personal property and works, and all its corporate. rights, powers, franchises and privileges. The act was-subject to a referendum clause, and did not become effective in Plainfield until'1910, four years after the consolidation of the Plainfield company and the Union company. Tim' corporation to which the power of condemnation is applicable, is necessarily the consolidated corporation, which was the only corporation owning water works in Plainfield when the act became effective there. The property authorized to be condemned is all the property, corporate rights, powers, franchises and privileges of the company. Some statutes of the kind may properly be construed as mere enabling acts; the word “all” may mean “all or any.” Other statutes may properly be construed as imposing a limitation on the condemning agency; the word “all” may mean “all or none.'” In the present case, the question is not free from
It cannot be said that the act of 1876 was meant to establish a general scheme by which a public supply might be substituted for a private supply. If that had been the intent the scope of the act would not have been limited to cities. At that time, the comparative merits of public ownership as against private ownership had not become the subject of common discussion. The subject then before the legislature was evidently the necessity of making some provision for water-supply other than by specially chartered companies as had previously been the custom. The constitutional amendment of 1875 had just been adopted. It thereupon became the duty of the legislature to pass general laws under which corporations might be organized. In pursuance of this duty the legislature passed an act which was approved April 21st, 1876, the same day as the act now before us, under which private water companies might he incorporated. Pamph. L. 1876, p. 318; Comp. Stat., p. 3635. The two acts were parts oí a general scheme; one provided for a supply by private water companies, and applied to all municipalities having not less than two thousand and not more than fifteen thousand inhabitants; the other authorized a public supply in cities which at that time included all municipalities having over fifteen thousand inhabitants. The legislature seems.then to have thought that smaller municipalities either' did not need a water-supply if tire population was less than two thousand or ought not to incur the risk of a supply at public expense unless tlie3r had attained the rank of cities. That the act relating to cities limited the right to acquire water works to
Eor these reasons, we think the city of Plainfield has no right to condemn a water-supply which is already devoted in part to the public use of ■ other municipalities. The order appointing commissioners, must therefore be set aside, with costs.