71 N.J.L. 183 | N.J. | 1904
Lead Opinion
The opinion of the court was delivered by
This writ of certiorari brings under review two resolutions passed by the Passaic Valley Sewerage Commissioners on the 7th day of July, a. d. 1903, one estimating the cost and expense of the whole work to be undertaken and constructed by them, under statutory authority, at the sum of $9,000,000, and another resolution, by which they have determined upon a present issue of bonds to the amount of $1,000,000, in order to provide money for the payment of the costs and expenses to be incurred in the purchase of land and the construction of the works in question. The prosecutor Van Cleve is the owner of real estate in the city of Paterson which has been subjected to assessment for special benefits by reason of the building of one of the sewers heretofore constructed by the municipal authorities of that city. The other prosecutor is the municipal corporation of Paterson.
The former act declares that certain territory, particularly described by metes and bounds therein and comprising portions of Essex, Passaic, Bergen and Hudson counties, shall be constituted a sewerage district under the name of Passaic Valley Sewerage District, and "shall bo entitled to all of the authority and shall be subject to all the laws of this state concerning sewerage districts so created.”
On the date of its approval there was also approved a companion measure (Pamph. L. 1902, p. 195), which-authorized the governor to appoint five residents of such district as commissioners, who were required to investigate methods and plans for relieving the streams and rivers within the district from pollution, and for preventing the pollution thereof, and to report a plan or method, when adopted by them, to the legislature. Pursuant to this act the governor appointed five commissioners for the Passaic Valley Sewerage District, who reported to the legislature a plan for accomplishing tire purposes just indicated.
The legislature, at its next regular session, passed an act (Pamph. L. 1903, p. 158) for the purpose of carrying into effect the recommendations of the commissioners. Because of defects in this act, not necessary to be now mentioned, the legislature was convened in special session on the 21st of April and enacted (as a substitute) the statute whose provisions form the principal subject of the present controversy. Pamph. L. 1903, p. 777. This act is entitled “An act to relieve from pollution the rivers and streams within the Passaic valley sewerage district, established and defined by an act of the legislature entitled An act to create
The act makes it the duty of all persons, corporations and municipalities owning or controlling sewers or drains, within the limits of the district, which discharge directly or indirectly into the streáms or rivers, to cause the same to be connected with and to be discharged into the sewers constructed by the commissioners, and requires that all sewers and drains hereafter constructed by any person, corporation or municipality within the district, which might otherwise discharge into the streams or rivers, shall be so constructed that the discharge therefrom shall be delivered into the drains or sewers provided by said commissioners, at the points and places to be designated by them; it being made the duty of thq commissioners, in constructing intercepting or' main sewers, to have them so constructed that connection therewith can be made at necessary or proper points.
The act provides that the main, intercepting or trunk sewer to be constructed by the commissioners shall commence at or near the valley of rocks, in the city of Paterson, and shall extend to the point of discharge or outfall in New York bay, within the limits of the State of New Jersey. It requires that before any moneys are expended, or obligations incurred for the construction of any trunk or outlet sewer, which shall discharge into New York bay, the commissioners shall investigate whether such discharge is likely to pollute the waters of that bay within the jurisdiction of the State of New York to such extent as to cause a nuisance to persons or property within that state, and shall present the result of such investigation to the governor with their opinion thereon; whereupon the same is to be considered by the
It may be mentioned, in passing, that the return made to the writ of certiorari herein shows that these conditions have been complied with, and by stipulation of the parties it is made to appear that “the question of pollution, or the extent of pollution by the sewerage commissioners through their proposed construction in the waters of New York bay, is not at issue.”
The act further provides that the sewerage commissioners shall have power and authority to purchase and acquire lands and rights or interests in lands, within or without the sewerage district, for the construction of sewers, drains, disposal, pumping or other works authorized by the act, with power to condemn in case of disagreement with the owners. The commissioners are authorized to construct any sewer or drain under or over any water course, under or over or across or along any street, turnpike, railway, canal, highway or other way, and in or upon private or public lands, and upon lands of this state and under waters of this state, and to enter upon and dig up> any street, road, highway or private or public lands, either within or without the sewerage district, for the purpose of constructing, maintaining and operating sewers or drains upon or beneath the surface thereof. They are also given power to alter water courses, and, with the consent of the municipal authorities, to alter or change the grade or location of any highway, public street or way crossed by any sewer or drain to be constructed under the provisions of the .act.
The commissioners are required to keep full and accurate
The act declares, in its eleventh section, that in order to provide for the payment of costs and expenses incurred or to be incurred by the commissioners for the purchase 'of lands and other property, and for the construction of its works and expenses connected therewith, the commissioners shall have power, from time to time, to issue corporate bond's in an amount not exceeding $9,000,000, and not exceeding the total estimated cost and expenses of the whole work; the bonds to run not exceeding fifty 3rears from date, and to be otherwise in such form and payable at such time and place as the commissioners may determine, bearing interest not exceeding four per centum per annum. By the-same section the commissioners are required to keep the cost and expense of the construction of its plant separate from the cost and expense of maintenance, operation and repairs. Section 12 authorizes them to issue temporary certificates of indebtedness, to be retired from the proceeds of bonds when issued, and to provide a sinking fund, to be raised from year to year in the same manner as moneys necessary to pay the interest on the bonds are to be raised. By section 13 it is declared that all indebtedness of the commissioners incurred pursuant to the provisions of the act, with the interest thereon, shall be a charge upon all persons and property in the municipal or taxing districts tying in whole or in part within said sewerage district as fully as the legislature shall have power to authorize the same.
By section 14 the commissioners are required, on or before the 15th day1 of June in each year, to ascertain and determine the money necessar3r to be raised for the pa3rment of interest upon bonds and other indebtedness,' and for sinking fund charges, and to apportion the same among the respective municipalities and taxing districts tying in whole or in part within the sewerage district in such proportion as the taxable ratables within so much of said municipality or taxing district as is embraced within the sewerage district bears to the total
By section 16 the commissioners are required, on or before the 20th day of June in each year, to order and cause a tax to be levied and assessed upon all persons and property within •each of the municipalities and taxing districts lying in whole or in part within the sewerage district, for the purpose of raising the money necessary to pay interest and sinking fund -charges, and to provide for the proper maintenance and operation of the works and plant and for all other expenses of. •the commissioners; and to this end the commissioners are
By section 19, in case the streams and rivers within the said sewerage district are polluted by sewage or other deleterious matter discharged therein, directly or indirectly, from any municipality lying without the district, contracts are authorized to be made between such municipalities and the board of commissioners for the disposal of such sewage and other deleterious matters, and the commissioners are authorized to make provision for such disposal in the construction of their works. Such municipalities are authorized to raise the agreed annual consideration payable for this privilege by tax, and the moneys received by the commissioners under such contracts are to be applied — two-thirds to' the payment of interest upon their bonds and one-third to the payment of the expense of operation, maintenance and repair of the works.
By section 20 the sewerage commissioners are given power
This outline of the provisions of the act may be concluded with the mention that its twenty-third section declares that in case, for any reason, any section or any provision of the act shall be held to be unconstitutional or invalid, the same shall not be held to affect any other section or provision of the act.
The first ground assigned by the prosecutors for setting aside the proceedings under review is that chapter 48 -of the laws of 1902 (Pamph. L., p. 190), whereby the Passaic Valley Sewerage District was created, is unconstitutional, because it is a local and special law, regulating the internal affairs of towns and counties. This objection was not pressed in argument, and in our opinion is unsubstantial. The act contains no regulative provisions whatsoever beyond a declaration that the district shall be entitled to all of the authority and subject to all the laws concerning sewerage districts so created. This amounts to no more than an expression of the purpose for which the district was delimited, and does not of its own force establish any regulation for its government. Even as to municipal corporations (the district, as we shall see, is not such) the constitution does not require that their creation shall be by general laws, a point that after remaining undetermined for some time (Pell v. Newark, 11 Vroom 71 (at p. 77); S. C. in error, Id. 550, 553, 555; Long Branch v. Sloane, 20 Id. 356 (at p. 362); Dempsey v. Newark, 24 Id. 4 (at p. 11); State v. Borough of Clayton, Id. 277 (at p. 279); Lakewood v. Brick, 26 Id. 275 (at p. 277); Glen Ridge v. Stout, 29 Id. 598) was set at rest, so far as this court is concerned, by Miller v. Greenwalt, 35 Id. 197. And in Riccio v. Hoboken, 40 Id. 649 (at p. 662), it was said in the Court of Errors and
We therefore have no doubt of the constitutionality of chapter 48 of the laws of 1902, which establishes the Passaic Valley Sewerage District.
Were we of a different opinion upon this point, it would make no difference in the result. The geographical district would be recognized (Mortland v. Christian, 23 Vroom 521; Van Vane v. Centre Township, 38 Id. 587, 589), and the case must still turn upon the constitutionality of the act of April 22d, 1903 (Pamph. L., p. 777), whose provisions are above recited at length.
To this act the argument for the prosecutors was solely .addressed. It is first attacked as violative of paragraph 11
To deal with the last of these points first: In Pell v. Newark, 11 Vroom 71 (at p. 76), it was said by Justice Yan Syckel, for reasons that we deem conclusive, that the prohibition of special laws conferring corporate powers has reference only to private corporations. The same view was adopted and made the basis of the decision of Yice Chancellor Stevens in State Board of Health v. Diamond Mills Paper Co., 18 Dick. Ch. Rep. 111, 114, whose opinion was adopted by the Court of Errors and Appeals in affirming the decree. 19 Dick. Ch. Rep. 793.
In dealing with the act in reference to the constitutional interdict of special legislation regulating municipal affairs, we may inquire — first, whether the powers conferred upon the commissioners are municipal powers; secondly, whether the act in its main features is a special act, within the prohibition of the fundamental law; and if not, then thirdly, whether the provisions of the act, so far as they incidentally regulate the internal affairs of municipalities already established, are to be characterized as special legislation in that behalf.
The main purpose of the act is to establish, within and for a designated portion of the area of the state, a great public Avork for a great public purpose, which work is to be established, maintained and operated through the instrumentality of an administrative branch of the central government of the state, at the cost of the present and future residents of the district particularly affected, by means of taxation of the property, real and personal, within that district.
In effect, the act declares that the Passaic river and other natural streams within the district are so polluted by seAvage and other deleterious matter as to be a menace to the health, not to mention the comfort, of the population. Por practical purposes, the act treats this situation as a public nuisance. To the extent that the polluting materials proceed from
But, as we take it, the' validity of the statute does not depend upon whether the conditions existing in the lower valley of the Passaic are attributable to the'exercise of lawful rights by municipalities or individuals,, or are due to unauthorized pollution of the river. The act deals with a practical situation. It proposes a compulsory cleansing of the river, to be accomplished by first constructing an artificial channel to carry the polluting materials to the sea, and then requiring that this channel be used instead of the natural stream. And this is to be done, not by delegating- the work to the municipality or municipalities that happen to be chiefly concerned, nor by erecting a new municipality for the purpose, but by direct intervention of the central authority in the state.
The powers conferred upon the sewerage commissioners are executive and administrative in their character. The commissioners are constituted by section 3 a body politic, with the essential powers of corporations, and by section 21 they are authorized to make rules and regulations for the use, protection and management of the works, property and plant, and for the protection of the rivers and streams within the district from pollution; beyond this, the commissioners have no legislative powers. By section 15 they are required to give a hearing to the municipalities aifected upon the question of the apportionment of the cost of maintenance, operation and repair of the plant. This, of course,' is a quasi-judicial function, similar in character to that which is fre
To call this sewerage district, or the commission that is put in charge of this work, a municipal or gwasi-municipal corporation is, we think, a misuse of terms. There is lacking the delegated power of legislation for local purposes, which is of the essence of municipal government. 2 Kent Com. *275. There is also lacking the direct and exclusive voice of the people locally concerned, so common in our municipalities. Some of our judicial decisions, indeed, have almost treated the right of local sc ¡¡/-government as essential to the definition of a municipal corporation (State, Lydecker, pros., v. Englewood, 12 Vroom 157; Allison v. Corker, Assessor, 38 Id. 606), but so far as observed this point has not been necessarily involved in the cases. Self-government in municipal affairs is so well nigh universal in this country that it is sometimes thought of as a constitutional right, but perhaps it is not, in the absence of express constitutional provision. See 1 Dill. Mun. Corp. [4th ed.), §§ 9, 19, 20, 21, 44, 58a, 60, 61, 183, and elsewhere passim. Our own constitution now contains an express prohibition against 'special or local laws for “appointing local offices [sic] or commissions to regulate municipal affairs,” which seems to imply the legislative power to enact general laws for these purposes.
The question then arises whether the legislature is debarred by any constitutional limitation from carrying out the objects aimed at in' this legislation by any instrumentality other than the establishment of a municipal corporation or corporations for the purpose. Must work of this character be confided to the municipalities ? Is the legislature impotent to act directly, and through its own chosen agencies, merely because its plans have reference to a limited portion of the state’s area, where the emergency requires their adoption? It seems to us these questions must be answered in the negative. It is not, in our opinion, a constitutional right of the people to have all matters of local concern entrusted to municipal corporations. Within constitutional limits the people of the state, acting through the general legislature, may delegate to the municipalities such portion of political power as they may deem expedient, may withhold other powers and may withdraw any part of that which has been .delegated. Mount Pleasant v. Beckwith, 100 U. S. 514; 20 Am. & Eng. Encycl. L. (2d ed.), tit. “Municipal Corporations," p. 1218 et seq.
The constitutional prohibition of special legislation is absolute with respect to that which “regulates the internal affairs of municipalities.” But the word “internal” here means governmental^, not territorially internal. Such matters of -local government as are confided to the municipalities at once become, and until recalled remain, their “internal affairs.” But it is not every matter of governmental regulation, local in its effect when territorially considered, that is an “internal affair” of the municipality within the meaning of the constitutional interdict; otherwise there would have been little need for the accompanying prohibition of special .laws relating to roads, public
So far as the present act operates upon the several municipalities that lie within the sewerage district, it will be dealt with presently. We are at the moment considering the district as a separate governmental establishment. So far as the’ act regulates the district as a district, and the proposed sewage disposal system, it does not regulate the “internal affairs” of a municipality, for the district is not established as a municipal corporation.
But after enumerating specified topics upon which special legislation is absolutely prohibited, the constitutional amendment in question proceeds as follows: “The legislature shall pass general laws, providing for the cases enumerated in this paragraph, and for all oilier cases which, in its judgment, may be provided for by general laws.” The latter part of this clause plainly leaves much to the discretion of the legislature. It implies that there are matters of local concern other than those especially enumerated in the paragraph; and with respect to such others it is left to the legislature to determine in its judgment whether they can be reached by general enactments. Under this clause it would require, at least, a plain case, amounting in effect to an evasion of the legislative duty, to justify us in declaring an act void for want of generality. State v. Price, post p. 249, recently decided by this court.
But is the act before us “local or special” within the constitutional interdict, even as relates to the establishment and regulation of the sewerage district as such? The fact that it applies in terms and by name to- the Passaic Yalley Sewerage Commission, and cannot without amendment be made applicable to any other commission of the same sort, is not controlling. If it applied in terms to “all sewerage commissions,” its effect would be precisely the same so far as present conditions are concerned, there being in fact no other territory established as a sewerage district, nor any other commission to which the act could apply. It is the sub
In Van Riper v. Parsons, 11 Vroom (at p. 6), Chief Justice Beasley said: “In my opinion, the clause in question seems to have been provided with the intention to require that for the 'future all legislative regulation of the internal affairs of cities should be the creatures, whenever practicable, of general laws framed for tire purpose. This is a domain from which special and local legislation is utterly excluded whenever the legislative end can be effected by a general law.”
In the same case, at a later stage (11 Vroom, at p. 125), Justice Dixon, speaking for this court, declared that a law is not prevented from being a general lawr by the mere consideration that within the state there happens to be but one individual of the class or one place where it produces effects.
In Pell v. Newark, 11 Vroom (at p. 79), Justice Van Syckel said: “In Van Riper v. Parsons this court has held that the clause of the constitution in question was not intended to limit legislation, but to forbid only the doing by special or local laws those things that can be done by general laws. * * * Assuming that this law is vicious, if the same end could be attained by general legislation,” &c.
In Sutterly v. Camden Common Pleas, 12 Vroom (at p. 496), Justice Knapp said: “The general effect of the clause in question was declared (in Pell v. Newark) to be to take away from the legislature the control of municipal affairs in these political divisions, through the instrumentality of local and -special laws, in all cases where the subject-matter was not in its nature necessarily local and special,” &c.
In Budd v. Hancock, 37 Vroom (at p. 135), Justice Garrison said: “A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some persons, places or things from those upon which, but for such separation, it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes that makes it special, but what it excludes. If nothing be excluded that should bo contained the law is general.”
The public records of the state and the acts of the legislature show that the question of the pollution of the Passaic river resulting from sewage has been the subject of anxious consideration by the executive and legislative departments for at least eight years past. The legislature of 1896, among its earliest acts, passed one entitled “An act for the consideration of a general system of sewage disposal for the valley of the Passaic river and the prevention of the pollution
A reference to the map of the Passaic Yalley Sewerage District, and a consideration of its geographical and topographical features, and of the population therein contained, render it plain that the repeated efforts of the executive and legislative departments to grapple effectively with this problem are based upon an actual condition of affairs that is not overstated in the preamble of the act now under consideration.
The district comprises parts of the counties of Passaic, Bergen, Hudson and Essex, and includes the whole or parts of the territory of the following municipalities that naturally drain into the Passaic river, viz., the whole of the city of Paterson, the city of Passaic and the township of Acquackanonk, in the county of Passaic; the borough of Garfield, the borough of Wallington, and parts of the boroughs of East Butherford, Butherford and Horth Arlington, and part of the
The sewer system of Paterson is discharged into the river by legislative authority. Pamph. L. 1867, p. 653; Pamph. L. 1868, p. 126; Pamph. L. 1871, p. 808. This-legislative permission has been acted upon by the city, and has not been revoked prior to the enactment of the • present legislation: We are not referred to the statutes (if such "there be), in virtue of which the other municipalities within the district discharge the outflow of their municipal sewers directly into the Passaic river. That they do so is admitted, and, indeed, is a matter of common knowledge.
For purposes of comparison with other important drainage areas in the state, the stipulated facts contain statistics concerning the Hackensack, Raritan, Rahway and Elizabeth rivers, and Rancocas creek. We have carefully compared them with the corresponding data respecting the drainage area of the Passaic river and the sewerage district in question. The statistics appear to be derived from public sources and to be of unquestionable* reliability. Certainly, the pres-, ent prosecutors cannot complain if they are fully credited.
The conclusion we have reached, after consideration of all this evidence, especial reference being had to that which is of a public character, is that the situation of the territory included within the Passaic River Sewerage District, in respect to the density of population and the distribution thereof, the character and location of the several municipalities, the amount of sewage matter constantly delivered therefrom into the river and that which may be reasonably anticipated in «the future, is entirely abnormal. The flow of the
We find that in point of fact there is no reasonable basis •of comparison between the territory of the Passaic Talley Sewerage District and any drainage district situate elsewhere in the state, with respect to the necessities that have led to the legislation now under consideration. The legislature was well within the facts in declaring that the Passaic river and many other streams within the sewerage district are polluted to such an extent that the health of the people residing in the district is seriously endangered, and that immediate relief therefrom is imperative. No parallel to this situation can be found elsewhere in the state, nor is it reasonable to anticipate that such a situation will elsewhere exist in the near future.
The argument that in other parts of the state there now ■exist similar conditions that ought to be dealt with in like manner, even if it were based on a correct statement of the fact (which it is not), should be addressed to the lawmaking power and not to the courts. It is for the legislature to ■decide whether, certain territory should be subjected to sanitary and police regulations of the character now under consideration. In their wisdom they have declared that public •exigencies require the creation of a sewerage district in the Passaic valley and its regulation by law. We cannot by judicial construction postpone "their lawmaking upon the subject until the public needs require the creation of other sewerage districts sufficient to form a “class,” in the sense ■of a group of subjects that may be legislated upon collectively. Classification is essential only for the purpose of differenti.ating among many individuals, in order that fewer than the whole number may be generalized for the purpose of being treated in groups. But where there is only a single individual, as here — a single established sewerage district — grouping, classification, generalization, are alike impossible.
Nor are they necessary in order to avoid conflict with
The learned counsel for the prosecutors, in comparing conditions as they now exist in the Passaic valley with those that may come to exist (as is said) in the other river districts of the state, argues that “whenever the time comes that the same power of prevention is to be exercised as to those other streams, every reason of public policy requires that the same methods of constructive sanitation and internal government should be applied.”
But the rule adopted in determining the constitutional validity of a classification of municipalities on the basis of population or the like — the rule that municipalities after-wards “growing into the class” must be brought under the operation of the law in question — seems to us to have no applicaney to the present case, for two reasons:
First. Because we cannot say that in respect to the conditions that render this legislation necessary there is any normal progress in other localities that must be now taken into account by the legislature and provided for in advance, so that legislation which fails to do this is for that reason rendered special. In Cooper v. Springer, 36 Vroom 594, the Court of Errors and Appeals had under review an act (Pamph. L. 1899, p. 534) conferring certain municipal powers in places theretofore organized as boroughs under unconstitutional laws. It was upheld as constitutional, Justice Van Svckel saying (at p. 597): “In reaching this conclusion the ■fact has not been overlooked that the act applies only to the then existing boroughs of the class to which it relates. The case of Bennett v. Trenton, 26 Vroom 72, and the several •cases therein referred to, are instances where the class would in the future, in the ordinary and regular course of events, be increased and added to. This case is not within the reason of the rule which condemned the legislation in those cases. The courts cannot, with proper respect for a co-ordinate
And in Albright v. Sussex County Lake and Park Commission, 39 Vroom 533 (at p. 533), it was said of the statute there in question that it “deals with a distinctive topographical feature that is in its nature fixed and not variable. There is no normal change necessarily to be anticipated in the future with respect to the possession by the several counties of the distinctive feature, which the courts can say must be within the contemplation of the legislature, so that a classification not taking it into account would for that reason be special.” The reversal of the decision in the Albright case by the Court of Errors and Appeals was based upon grounds that do' not affect this portion of the reasoning of-this court.
The same reasoning applies to the statute now before us, and with -even greater force. It is not reasonable to anticipate that the natural streams in other parts of the state will be permitted to become polluted to the extent of endangering the health of the population residing near their banks. . Such a condition of affairs is entirely anomalous.
Secondly. It is a matter of common knowledge that the science of sanitary engineering, as applied to sewage disposal and- kindred topics, is in a state of constant progress. Indeed, the brief of the learned counsel for the prosecutors admits as much, for, in arguing, the hardship that the adoption of the present plan is claimed to entail upon the city of Paterson, it is said: “The science of sewage disposal still includes several diverse methods, no one of which can as 3r.et be said to be scientifically declared to be the best. Paterson is denied the right to select its own method,” &c. Of course, the courts have no control over the question of policy as to which method ought now to be adopted in the given case. The legislature in its wisdom has in this act adopted that system which seems to it best at the present day, the emergency admitting of no longer postponement so far as the Passaic valley is concerned. But the fact that the science
We therefore conclude that the act is not “special” within the meaning of the constitutional interdict, by reason of the fact that it deals alone with the valley of the Passaic, and establishes regulations for that valley that are not at the same time made applicable elsewhere.
Having thus found that the main scheme of the act is not invalid for want of generality, it results that such of its provisions as incidentally regulate the internal affairs of existing municipalities in order to carry out the main purpose are likewise supportable, since the municipalities thus affected are thrown into a class by themselves from the very necessity of the case. Thus, by section 5, all municipalities, owning or controlling sewers within the limits of the sewerage district which discharge into the streams or rivers therein, are required to cause their sewers to be connected with, and discharge into, the sewers to be constructed by the commissioners at places to be designated by them, and all sewers hereafter constructed that might otherwise discharge into the streams or rivers are required to be so constructed that the discharge therefrom shall be delivered into the sewers to be provided by the commissioners, and it is made the duty of the commissioners to so construct their sewers that connection may be made therewith. This provision operates alike upon the sewerage systems of all municipalities within the district without discrimination. It is manifestly general. The same may be said of the provisions of section 7, respecting the construction of sewers by the commissioners in streets, highways, &c., and the proviso that when streets or highways lie outside of the sewer district, the laying of sewers under the streets shall be subject to the police regulations of the governing bodies of the respective municipalities. So with section 8, requiring consent of the municipal authorities
The foregoing are tire only provisions of the act that regulate the internal affairs of municipalities, except such as have to do with the distribution and enforcement of, the financial burdens incident to the construction, maintenance and operation of the works, that are established by the act. With respect to these burdens the scheme is that the cost of construction shall be defrayed from the proceeds of bonds, and the interest'and sinking fund charges are to be apportioned among the respective municipalities and taxing districts lying in whole or in part within the sewerage district, in such proportion as the ratables within so much of the-municipality or taxing district as is embraced within the sewerage district hear to the total ratables of the entire sewerage district. The annual cost of operation, maintenance and repair is to be apportioned among the several municipalities and taxing districts that lie in whole or in part within the sewerage district, •according to the amount of sewage by them, respectively, •delivered or discharged into the sewers constructed by the •commissioners. The taxing boards and taxing officers of the respective municipalities are required to assess and collect the annual taxes necessary for these purposes at the same ■time and in the same manner as state and county taxes are •required to be levied, assessed and collected. Whether these
The above reasoning shows, as we think, that the act does no violence to the constitutional prohibition of special legislation “regulating the internal affairs of towns and counties.” For the same reasons, it does not infringe upon the clauses prohibiting special laws for “laying out, opening, altering .and working roads or highways; vacating any road, town plot, street, alley or public grounds.” The regulations relating to streets, roads, &e., operate uniformly throughout the district, without discrimination in favor of any locality therein.' They are necessarily incident to the carrying out of the main purpose of the act, a circumstance that furnishes a rational basis for setting the included localities in a class by themselves, and renders the classification germane to the purposes of the legislation.
Next, the method adopted for the distribution and apportionment of the burden of taxation imposed by this act is
It is needless to say that the bonding provisions contained in section 11, and the provision contained in section 12 for the borrowing of moneys in anticipation of the issuing of bonds, are but contrivances intended to distribute the cost of constructing the work in question throughout a period of years instead of having it met by taxation in a single year. The, declaration contained in section 13 that the indebtedness incurred by the commissioners pursuant to the provisions of the act “shall he a charge upon all persons and property in the municipal or taxing districts lying in whole or in part within the sewerage district as fully as the legislature shall have power to authorize the same,” is the equivalent simply of declaring that the public credit is to be pledged by the commissioners in the manner pointed out in the act. As the statute at the same time prescribes the mode in which the indebtedness is to be paid off — that is to say, by taxation extending throughout a period of years — this section imposes no charge upon persons and property beyond a liability to pay the prescribed taxes when .and as the same shall be assessed. The validity of the act in this respect, therefore,, depends upon the constitutionality of those provisions that relate to the distribution and apportionment of the burdens of taxation.
There is, of course, a plain distinction between ordinary taxation, whose exactions are imposed generally upon the persons and property owners within a designated taxing district, and assessments that are imposed upon specific parcels of real estate for special benefits accruing thereto by reason of local improvements. The basis of ordinary taxation is the
In the statute now under review there is no attempt to levy a special assessment upon any real estate or other property as being peculiarly benefited. The scheme of the act is to distribute the entire cost of construction and maintenance of the work by way of general taxation. It is not suggested in the arguments of the learned counsel for the prosecutors that a general taxpayer has any constitutional right to require a portion of the general expenditure to be reimbursed by the imposition of special assessments upon particular pieces of property within the district. Nor is there, so far as we are aovare, any reason or authority to support such a view. At the very least, the burden would be upon the prosecutors to show that some class of property is to be so peculiarly benefited that it ought to be specially assessed. This burden has not been sustained. Indeed, in the circumstances of the present case it is difficult to see how any particular properties, or group of properties, could be selected as justly subject to a special imposition on the ground of peculiar benefits to bo derived from the improvement. If the project were intended to relieve certain lands from natural disadvantages, the case might in this respect be different. But the lands that in reasonable anticipation are to be specially advantaged by the cleansing of the Passaic river are those that happen to have been heretofore especially disadvantaged by the pollution of the river; they are simply to be relieved from the consequences of that pollution. Since the pollution is presumably unlawful as against private landowners, and has in a sense worked a private nuisance to such lands, it could not be deemed just to impose upon the lands themselves the cost of relief from the nuisance. On the other hand, if an attempt had1 been made to impose assessments for benefits upon the landed properties throughout the sewerage district that make connections with the municipal sewers which
The legislature has dealt with the existing conditions as detrimental not so much to property as to the health of the population residing within the sewerage district, and has, not inequitably, determined that the benefits of the improvement will be so generally distributed that the cost may well be met by general taxation.
The complaint here made by the prosecutors is, first, that the benefits of the public work established by the act will accrue to the people of the state at large, so- that its burdens ought to be borne from the state treasury. This view, we think, is entirely untenable. The matter rests largely in legislative discretion. Hagar v. Reclamation District, 111 U. S. 701, 705. The purpose of the act, as declared in its preamble, is to safeguard the health of the people residing within the sewerage district. It is therefore manifestly just and equitable that the cost of establishing and maintaining the works provided for by the act should be imposed upon a limited district and not upon the state at large. If, for instance, any part of the financial burden of this local improvement had been attempted to be imposed uj)oai the counties other than Bergen, Passaic, Essex and Hudson, the act would have savored decidedly of confiscation under the guise of taxation.
The next and jnincipal argument is that the mode adopted by the legislature in selecting the persons and property to be taxed, and the method of distribution and apportionment that is adopted, are violative of principles that have been declared in our judicial decisions to be essential to a constitutional scheme of general taxation.
The distribution and apportionment of general taxation imposed for public purposes is one of the most vital functions of the legislative department of government, being essential to the exercise of the power'of taxation itself. As was said by Chief Justice Beasley, in the Agens case (8 Vroom, at p.
But it is agued that our decisions have established the rule that a taxing district must be coincident with some political district. This is not an accurate statement of what has been decided. A close scratiny of the adjudged cases will show that they have not gone beyond this extent; that with respect to the exercise of the delegated power of levjdng taxes (using this term “levying taxes” as referring to the legislative function of taxation), a taxing district may not be created that is narrower in extent than a single political district. The cases relied ripon are Tidewater Company v. Coster, 3 C. E. Gr. 518; State, Agens, pros., v. Newark, 8 Vroom 415; State, Baldwin, pros., v. Fuller, 10 Id. 576; S. C. affirmed, 11 Id. 615; State, Lydecker, pros., v. Englewood, 12 Id. 154; Morgan v. Comptroller of Elizabeth, 15 Id. 571; Kean v. Driggs
With the rule established in the Tidewater case and reaffirmed in the Agens case, that assessments imposed upon specific parcels of property for the special and extraordinary benefits conferred thereon by local improvements must be limited to the amount of the peculiar benefits, we are not now concerned. In the Agens case (which related to special assessments and not to general taxation), Chief Justice Beasley, speaking for the Court of Errors and Appeals, in arguing against the notion that the legislative power to select the subjects of taxation is untrammeled, employed this antithesis: “It would seem much more in accordance with correct theory to maintain that the power of selection of the property to be taxed cannot be contracted to narrower bounds than the political district within which it is to-operate, than that such power is entirely illimitable/’ Following this intimation, this court, in Baldwin v. Fuller, held that the legislature has no power to impose a particular tax upon any territory narrower in bounds than the political district of which it is a part, without having regard to the special benefits which may accrue to those upon whom it is made to fall. This rule was followed in the Lydecker, Morgan and Auryansen cases. It will be observed, however, that in all these cases the court was dealing with instances of the delegated legislative power of taxation, and with taxes that were laid by municipal officers for municipal purposes — that is, for purposes that pertained not merely to the territory, but to the governmental objects of a given political district that included the-lesser taxing district within its bounds. The mischief to be guarded against was the abuse of authority by officials chosen to represent' an entire political district, who imposed taxes upon a limited portion of the community. That this is the rationale of the rule appears from what was said by Mr. Justice Magie (now Chancellor), in Taylor v. Smith, 21 Vroom 101 (at p. 106), where he cited the above cases as establishing that the legislature has no authority to delegate the power of general taxation except to political
But the concern of the courts with any method adopted by the legislature for the distribution and apportionment of taxation for public purposes is confined to upholding the constitutional guaranty against the taking of private property for public use without compensation. The doctrine of Baldwin v. Fuller is grounded upon that guaranty and is limited accordingly. Its object is to safeguard the few from confiscation of their property for the general benefit under the guise of taxation. In this view the rule that a taxing district, established for purposes such as were present in the above cases, may not be made smaller-in extent than a single political district, has a distinct utility. But the reason for the rule wholly disappears when the taxing district is established by the general legislature for public purposes whose general benefits extend beyond the lines of any political district, so that the taxing district (as here) includes the whole of certain political districts and parts of others; and when the taxes in question are imposed not by any delegated authority but by the legislature itself. And so, in our opinion, the limitation which the rule of Baldwin v. Fuller apparently imposes upon the general power of the legislature to establish districts for the purpose of localizing taxation and apportioning its burdens has no applicancy to the taxing district or districts established by the act now before us.
The method of apportionment, however, is further assailed as being not uniform throughout the whole of the taxing district itself. This criticism relates to the provision that municipal divisions, which are only in part included within the sewerage district, shall contribute to the construction 'fund in proportion to their ratables that are within the dis
If we treat tire area thus subjected to taxation as a single taxing district, we find that it includes the whole of the sewerage district and so much additional territory as is necessary in order to embrace the whole territory of the several municipal divisions that are in part included within the sewerage district. In this aspect the distribution of taxation throughout the district is not uniform, for a different rule will prevail in those municipal divisions which are only in part within the sewerage district from that which obtains
The rule that general taxes shall be uniform throughout the taxing district is only a means to the end of equitable apportionment. It has for its basis the prevention of unfounded discriminations as between taxpayers. Eor the guidance of administrative officers it is, perhaps, the only practicable rule. But it cannot rationally be said to form a limitation upon the sovereign legislative power in which taxation originates. With respect to a legislative measure such as that before us, the courts are limited to inquiring whether the scheme of taxation palpably amounts to an evasion of the constitutional guaranty that property shall not be taken for public use without compensation. The present act apportions the burden among the several municipal divisions affected in the following manner: Eirst, as to cost of construction, in proportion to the amount of the taxable ratables that are within- the sewerage district; and secondly, with regard -to the cost of maintenance and operation, it apportions the taxes according to the amount of sewage delivered by the respective municipalities into the sewerage system that is to be established by the commissioners. Each of these methods of apportionment rests upon a rational basis, and cannot be deemed as necessarily unjust or inequitable, nor is there anything in the case to show that they are so in truth. See King v. Reed, 14 Vroom 186 (at p. 200). Except in a clear case, the question of apportioning taxation
But if we are wrong in this, it seems clear that it does not lie in the mouth of the present prosecutors to raise the objection. We must assume that the bounds of the sewerage district were chosen by the legislature in the exercise of a fair discretion. They were established by an act passed in 1902, and have been adopted by the legislature of 1903 for the purposes of this act. We must take it for granted that those boundaries were reasonably adopted. That being so, it Would have been not clearly inequitable for the legislature to limit taxation to the bounds of the sewerage district, and to distribute it uniformly among all persons and property therein. Now the adoption of that method would have resulted precisely the same, so far as the burden of the scheme upon the city of Paterson and citizens and property owners therein is concerned, as the scheme of apportionment that the legislature have adopted; for in apportioning to municipal divisions that lie only in part within the sewerage district the share of the burden proportionate to that part, they have left the burden upon Paterson (all of which is within the district) at precisely the same measure that would have obtained had only persons and property within the sewerage district been taxed. Therefore if the scheme of apportionment is in this respect inequitable, the prosecutors are not aggrieved thereby.
The act provides that the taxes are to be assessed and collected in the same manner as state and county taxes. This does not amount to a deprivation of property without due process of law, within the prohibition of the fourteenth amendment of the federal constitution. 10 Am. & Eng. Encycl. L. (2d ed.) 308.
It is further objected that by this act the taxing power is delegated to the “Passaic Yalley Sewerage Commissioners,” a corporation other than a political division, and that such delegation is prohibited by the constitution. This objection
In the article on “Taxation,” in 27 Am. & Eng. Encycl. L. (2d ed.), the distinction between the legislative and administrative functions is clearly recognized, at pages 658, 729, 730, 733 and 734. The confusion that sometimes arises in the discussion of this question is attributable to the ambiguous meaning of the verb “lev}1,” as applied to taxation. The indiscriminate use of this word is pointed out in 27 Am. & Eng. Encycl. L. (2d ed.), at p. 729. In section 16 of the act under review the commissioners are required each year to “order and cause a tax to be levied and assessed,” &c.; and they are to “certify to the tax assessor, taxing board or taxing officer the amount of tax required to be levied, assessed and raised; * * * and the said assessors * * * shall assess said sums so directed to be assessed [and certified tothem] upon all the persons and property liable to be assessed for state or county taxes; and the said tax shall be levied, assessed and collected by the same officers, * * * and the tax so levied upon real estate shall be a lien thereon,” &c. It is plain that the word “levied” is here used either as synonymoixs with “assessed” (a mere iteration) or else in the sense of enforcing and collecting the taxes. In the beginning of the section it seems to be used in the former meaning; in the latter part of the section its use seems to indicate that the process of collection is referred to. But it is plain that throughout the section the word “levy” is used
The distinction between these functions was pointed out by Justice Depue in Township of Bernards v. Allen, 32 Vroom 228 (at p. 238), and is also referred to in the dissenting opinion^ of Chief Justice Magie, on p. 692. It is worthy of note that Justice Depue used the phrase “levying taxes" as descriptive of the legislative function, while Chief Justice Magie used it as referring to the administrative process of collecting the taxes. The substantial distinction to be kept in mind is that which exists between the legislative and administrative functions; the term used in describing either function is immaterial. In the opinon of Mr. Justice Depue in the case just cited1 (32 Vroom, at p. 238) it was expressly stated that the legislature, having prescribed a rule of taxation, ma]'' entrust the assessment and collection thereof to ■other officers. The law under review in that case was declared unconstitutional, because it confided the entire legislative function of municipal taxation to a commission not elected by the people. AVhether the doctrine of that case would be applied to a taxing district such as the one now under consideration, established for purposes not municipal in their character, may well be doubted. That question need not now be considered, for the act before us makes no delegation of the legislative function of taxation. The power’s of the sewerage commissioners with respect to taxation are not legislative but administrative. The act of the legislature has granted the tax, declared the purpose, delimited the taxing district, prescribed the rules of distribution and apportionment, and limited the aggregate of the burden. Besides that limitation, the expenditures authorized by the act are as closely guarded as is practicable in a legislative measure. The authorization is of a single public work, the purpose and general plan of which are defined; any work exceeding in ■cost $5,000 is to be let to the lowest bidder after public advertisement; no contract beyond $25,000 is to be awarded until approved by the governor. The authority given to the ■commissioners to purchase lands is, of course, subject to
It is further objected that the city of Paterson has a vested right to empty its sewers into the Passaic, river, which is interfered with by this legislation, it being claimed that this method of sewage disposal cannot be abolished without compensation to the city. The acts under which these sewers were constructed are Pamph. L. 1867, p. 653, § 17; Pamph. L. 1868, p. 126; Pamph. L. 1871, pp. 846, 855. In Simmons v. Paterson, 15 Dick. Ch. Rep. 385, it was- held by the Court of Errors and Appeals that these acts constituted a legislative authority for discharging the contents of the sewers into the river. Therefore the city was not chargeable as for maintaining a public nuisance. With respect to the rights of a private riparian owner above tidewater it was held that since the city had incurred the large expense of installing its sewer system, in reliance upon legislative authority, with long acquiescence upon the part of the landowner, he would not be allowed an injunction to restrain the use of the sewers, provided the city would malee compensation to him for tho deprivation' of his property right. But it was not held in that case, and wo fail to see how it can be held, that •the legislative authority referred to is irrevocable by the legis
In our judgment, the acts under which Patex*soxx was authorized to exnpty its sewage into the Passaic river amount merely to a legislative license, revocable at the will of the legislature; certainly, whexiever the public health aixd safety require. The act before us, in withdrawixig that license— prohibiting further pollution of the river, and requiring that the sewage of the city shall hereafter be discharged into the sewers to be constructed under this act — is only a reasoxxable exercise of the police power of the state, subject to which power public and private rights and property alike are held.
It is perhaps unnecessary to discuss the questioxx whether Paterson’s rights in the sewers have such attributes of private property as would render them inviolable by the legislature. See Dill. Mun. Corp. (4th ed.), §§ 66, 71; 20 Am. & Eng. Encycl. L. (2d ed.), tit. "Municipal Corporations,” 1220. Even treating them as private propei*ty, they are subject to police regulations, such as this act imposes, to the end that their use may not uxxduly endanger the public health. State v. Wheeler, 15 Vroom 88, 91.
We are not willing, however, to assent to the notion that the muxxicipal sewers, and the privilege of discharging them into the river, are held by the city as private property in such sense that the legislature canxxot impair the city’s rights thereixi without compensatioxi. The municipal corporation is
It is next objected that the legislature has no authority to compel the city of Paterson to incur, without its consent, the cost of the trunk sewer and the maintenance of the disposal works, as provided in the act under consideration.
This objection proceeds on the assumption that the act imposes the cost upon the municipality as such, rather than upon its citizens and property owners, an assumption whose soundness we cannot concede. Eor the purposes of the present objection, however, the distinction seems to point to no substantial difference, since the power to impose the cost upon the citizens and property owners would, necessarily include the power to employ the municipal corporation as a convenient governmental agency for enforcing payment of the cost through the instrumentality of local taxátion.
The objection itself, when analyzed, will be seen to rest upon the notion that in establishing a municipal corporation the legislature has conferred upon it some exclusive powers beyond revocation or repealer. This notion is contrary to the fundamental principle that municipal corporations are simply governmental agencies adopted for reasons of convenience in order to deal with local affairs. The contrary doctrine — that which treats a municipal corporation as en-
The power of the state to require local improvements to be made which are essential to the health and prosperity of any community within its borders is recognized, also, in Hagar v. Reclamation District, 111 U. S. 701, 704; Jensen v. Polk County, 47 Wis. 298; Bryant v. Robbins, 70 Id. 258; City of Philadelphia v. Field, 58 Pa. St. 320; Philadelphia v. Fox, 64 Id. 169.
The practical result of adopting a contrary view is conspicuously illustrated in the case before us. 'If the sovereign .state, acting through the general legislature, is without power to require the citizens and property owners of Paterson to contribute taxes towards the execution of any public work that may be necessary to prevent the off-seourings of the city from carrying disease, or even death, to its own inhabitants and the inhabitants of adjoining municipalities, then, by the same reasoning, the legislature is impotent to • compel the people of Dover, Boonton, Morristown and other towns in the watershed of the Passaic above Paterson .to pay taxes
Next, the prosecutors invoke article 4, section 6, paragraph 4, of the constitution, declaring that the legislature shall not, in any manner, create any debt or liability of the state exceeding $100,000, without the previous approval of the people at a general election. But this prohibition has no applicancy to local or municipal indebtednesses. People v. Flagg, 46 N. Y. 401, 406; Cass v. Dillon, 2 Ohio St. 607, 613; Clark v. City of Janesville, 10 Wis. 136; Bushnell v. Beloit, Id. 195, 221; Patlison v. Board of Supervisors, 13 Cal. 175, 182; Cooley Const. Dim. (7th ed.) 321, 325. A contrary view would overthrow practicalty all our municipal bond issues, for they depend ultimately on legislative authorization.
The final objection urged against this act is that’it impairs the obligation of contracts in requiring that the taxes levied upon real estate, pursuant to its provision, shall be and remain a first and paramount lien thereon until paid, it being insisted that this materially interferes with the rights of the present bondholders of the city of Paterson. We are referred to the statutes found in Pamph. L. 1901, p. 13, and Pamph. L. 1902, p. 13, for the legislative authority pursuant to which the outstanding bonds have been issued. The former act provides that the annual interest shall be raised by special tax, and that, in order to redeem the bonds at maturity, a sinking fund shall be established, to be created by a special annual tax or from the proceeds of assessments for improvements. The act of 1902 contains somewhat similar provisions. Neither of these acts gives in express terms any lien upon the taxable real estate by way of security for their payment. So far as appears, there is nothing in the act establishing the sewerage commission that defeats any of the terms of existing contracts between the city of Paterson and its creditors, or that impairs in any way the obligation of
Section 23 also renders it unnecessary to discuss the constitutionality of the proviso contained in section 4, requiring that contracts for work required to be done under the act shall contain a stipulation that, so far as practicable, the work shall be performed by union labor, and preference be given to citizens of the State of New Jersey. This proviso, if unconstitutional, is clearly separable.
The writ of certiorari should be dismissed, with costs.
Garrets on, J., concurs in the above views.
Dissenting Opinion
(dissenting). This writ brings up for review a resolution of the Passaic Valley Sewerage Commissioners, passed June 8th, 1903, authorizing the issuance and sale of corporate bonds to the amount of $1,000,000 to prosecute the works committed to their control by the statute under which they are created.
By an act entitled “An act to create a sewerage district to be called Passaic valley sewerage district,” approved March 27th, 1902, the legislature set apart, by metes and bounds, a certain part of the territory of the state and created the Passaic Valley Sewerage District. By this act it is declared that the district thus created “shall be and is hereby constituted a sewerage district under the name and title of the Passaic Valley Sewerage District, and it shall be entitled to all of the authority, and shall be subject to all the laws of
On the same day there was approved an act entitled “An act authorizing the appointment and defining the powers and duties of commissioners in sewage and drainage districts created for the purpose of relieving the streams and rivers therein from pollution, and to provide a plan for the prevention thereof, and providing for the raising, expenditure and payment of moneys necessary for this purpose.” Pamph. L. 1902, p. 195.
It is within the power of the legislature, under our state constitution, to erect, by a special act, certain territory into a municipality. In Pell v. Newark, this court said: “The right is still preserved to the legislature to create cities, towns and counties, and to change their boundaries, by special laws so as ,to make them appropriate political districts for the application of general laws establishing uniform rules for tlieir regulation.” Pell v. Newark, 11 Vroom 71.
Whether, in creating the municipal district, it is essential that notice of intention to do so shall be advertised, as required by paragraph' 9 of section 7 of article 4 of the state constitution, it will not be necessary to determine, because it does not appear in the record that such a notice was not given. It is provided by statute that the publication of any law in the pamphlet laws published by the state shall be prima facie evidence that the notice required by the constitution has been complied with. Pamph. L. 1876, p. 11, § 5.
This act appears in the pamphlet laws of 1902, and I shall presume that due notice was given, if required. State Board of Health v. Diamond Mills Paper Co., 18 Dick. Ch. Rep. 111; S. C., 19 Id. 793; Freeholders v. Stevenson, 17 Vroom 173, 186.
The act of March 27th, 1902 (Pamph. L., p. 190, ch. 48), will therefore be considered as having erected a subdivision of the state for certain purposes — municipal in character — ■ and to' be a valid exercise of legislative authority for this purpose.
While it may not be necessary to pass upon the validity of
The first section of the act declares that “upon the creation and incorporation by the legislature of any sewerage and drainage district for the purposes mentioned in the title of the act, it shall be the duty of the governor forthwith to appoint, &e., five residents within the district, who shall constitute a board of commissioners,” &c.
The only clause in the act of March 27th, 1902, about which doubt might be suggested is paragraph 2, section 7; that, however, is independent and severable if questionable.
Chapter 49 of the laws of 1902 seems also to be within the reasoning of the decision in the State Board of Health v. Diamond Mills Paper Co., 18 Dick. Ch. Rep. 111, which case was affirmed by the Court of Errors in 19 Id. 793.
This act is in effect'an act to provide a method-to prevent the pollution of the waters and streams of the state, and can, by legislative will, be made applicable to every river and stream in the state lying within a sewerage and drainage district which has been, or may hereafter be, created by the legislature. Such an act is general and not local or special.
This brings me to the consideration of chapter 1 of. the special session of the legislature of 1903 entitled “An act to relieve from pollution the rivers and streams within the Passaic valley sewerage district, established and defined by an act of the legislature entitled ‘An act to.create a sewerage district to be called the Passaic valley sewerage district/ approved March twenty-seventh, one thousand nine hundred
Does not the mere reading of the title of this act determine its character? It does not purport to be other than an act applicable to a single sewerage district. Its purpose is declared by its title to be “An act to relieve from pollution the rivers and streams within the Passaic valley sewerage district” and, as if with the purpose to further circumscribe and limit its application to a special and local subdivision of the state, it declares that the district to which it shall apply shall be that “established and defined by an act of the legislature entitled ‘An act to create a sewerage district to be called the Passaic valley sewerage district, approved March twenty-seventh, one thousand nine hundred and two/ ”
We have seen that the legislature may erect a city, a town, a borough, or a sewerage district, by a special act, and define in the act its boundaries. But immediately upon its creating such a city, town, borough or sewerage district, the municipality thus created is governed by the laws applicable to the cities, towns, boroughs or sewerage districts of its class. A law applicable to one of the class alone, eo nomine, cannot be enacted. Such an act would be special.
Suppose the legislature erects certain territory into a borough and declares that, that territory shall constitute the borough of “Harmony,” can it then proceed to enact a law to “relieve from pollution the rivers and streams within the borough of Harmony, established by an act of the legislature entitled ‘An act to create the borough of Harmony ?’ ”
It might possibly enact a law to relieve from pollution tire rivers and streams within the boroughs of this state, and define how boroughs might do so, but upon what principle can it be said that a law is general when applicable to a single borough, because it refers to the title of the act which creates it?
As was said by Judge Parker, in Skinkle v. Essex Public Eoad Board, “it may properly be-termed a quasi corporation, whose functions are wholly of a public nature, and having corporate powers only for certain specified purposes. Such a corporation is a mere agent, employed as a part of the machinery of government to aid in carrying on a portion of the affairs of a local nature.” Skinkle v. Essex Public Road Board, 20 Vroom (at p. 670); Ang. & A. Corp. (9th ed.), § 23; Commissioner of Roads v. McPherson, 1 Spears 218; Jansel v. Ostrander, 1 Cow. 670; North Hempstead v. Hempstead, 2 Wend. 109; Shinkle v. Essex Public Road Board, 140 U. S. (at p. 339).
Legislation affecting a municipal district such as the Passaic Valley Sewerage District, and creating a board of commissioners therein, with certain specified powers, to be exercised for public purposes, is legislation applicable to a municipality, and to be valid must be such as will stand the constitutional test against local and special laws “regulating the internal affairs of towns and counties.”
I am unable to see any escape from the conclusion that the title of the act approved April 22d, 1903, is clearly special, and that under it all of the provisions of the act are confined to the internal regulation of a local and special municipal purpose, namely, the relief from pollution of the rivers and streams within the single municipal division of the state known as the “Passaic Valley Sewerage District.”
The act before us cannot be distinguished in principle from an act which might be entitled “An act to relieve from pollution the rivers and streams within the city of Newark,” and surely such a statute would, under our constitution, being -applicable to Newark only, be an act regulating internal affairs, and clearly special and unconstitutional.
It was contended on the argument that admitting that this act was limited in its application to the single municipality
It is true that the question of whether a law is local or special depends upon what it excludes, and not' so much upon what it includes. But applying that rule to this' act, it will be seen that it excludes every possible municipal district of the state, save one. But, while it is conceded that that is true, it is answered that the municipal district included is the only one of its class in the state. But that is not the test. Shell an act, to be general, must include all other possible municipalities of the same class, existent or to become existent,'which may be similarly situated. The exclusion of any such makes the act special. ' If there were but one city in the state, would any one presume to contend that an act made applicable'to it, by its corporate name, would not be special? Wherein is the distinction between such an act and the one under review ?
Nor is the body of the act, in many unseverable respects, less objectionable than its title, under article 4, section 7, paragraph 11 of our state constitution, which declares that “the legislature shall not pass private, local or special laws regulating the internal affairs of towns and counties.”
As a preliminary statement upon this part of the case, it should be said that the whole body of the act, following its title, is made applicable solely to the Passaic Yalley Sewerage District. It only relates to it, and to the commissioners appointed to manage and govern it, save in the one respect where it refers to and individualizes for the purposes of taxation, under the act, the several-local municipalities embraced within the boundaries of the sewerage district as defined in the act of March 27th, 1902.
It has no other object or purpose than to provide for the-regulation and control of the internal affairs of this particular sewerage district and the several municipal or taxing districts, which áre local municipalities, lying in whole or in. part within it.
All discussion as to the right and power of the state to setup, under its police power, a district and govern it, and provide for tire prevention of the pollution of the rivers and streams within such district, so ably presented by counsel on the argument, is beside the question. '
In exercising the police power the legislature is controlled by constitutional restrictions. This power is not higher than the constitution. ■ While the legislature may prohibit the pollution of the rivers and streams, and create municipal subdivisions with certain powers and functions to this end, yet, in creating them it is bound by the mandate of the constitution that it shall not regulate' the internal affairs of any. municipal Subdivision so created by special laws. >
In matters- of police regulation the' legislature is undoubtedly supreme, but its powers are subject to all constitutional limitations upon its otherwise unlimited' supremacy. 22 Am. & Eng. Encycl. L. (2d. ed.) 937; Tiede. Lim. Pol. Pow., § 4.
I have not thought it necessary, therefore, in this, ease, to discuss the general question of the police power of the legislature as 'to the prevention of the pollution of the rivers and streams of the state.
In considering the case, we must keep constantly in mind the fact that'the act of April 22d, 1903, relates exclusively to the Passaic Yalley Sewerage District as erected by the act of March 27th, 1902, with incidental reference to the several local municipalities or parts of municipalities lying within its boundaries.
By the act power is given to the board of sewerage commissioners to bond the taxing district, borrow money in anticipation of bonds, and to provide for the payment of the bonds or other indebtedness, and the costs and expenses of the maintenance of the sewerage system authorized to be constructed by'the commissioners with the proceeds of the bonds sold.-
Section 12 authorizes the commissioners to borrow, in anticipation of the issuance of the bonds, not exceeding at any one time one-fifth of the estimated cost of the whole work, and to issue certificates of indebtedness or promissory notes therefor. This section also requires a sinking fund of not exceeding one per centum in any one year of the face value of the bonds issued.
Sections 13, 14, 15 and 16 relate to the method of discharging the indebtedness incurred under sections 11 and 12 of the act by its apportionment and assessment upon the several local municipal divisions within the boundaries of the Passaic Valley Sewerage District.
And section 17 directs that the local municipalities shall pay over the taxes assessed and collected to. the treasurer of the Passaic Valley Sewerage District.
It is perfectly obvious from the terms of these sections that they relate to the internal affairs not only of the sewerage district but of each of the several municipalities within the sewerage district. By section 13 it is provided that all indebtedness, from any cause arising under the act, "shall be a charge upon all persons and property in the'municipal or taxing districts tying in whole or in part within said sewerage district.”
What is intended by this provision of the statute?
Apparently to charge upon each municipality within the sewerage district all indebtedness, to quote the language of the act, “as fully as the legislature of this state shall have power to authorize the same.” The charging, it will be noticed, is proportionately upon the separate municipalities and not upon the sewerage district as such. Section 13.
By the stipulation in the cause it appears that the municipal or taxing districts, lying in whole or in part within the
Acts for the bonding of municipalities relate to the internal affairs of the municipalities. Anderson v. Trenton, 13 Vroom 486.
Suppose that the legislature had passed an act imposing upon these municipalities, by name, the burthen of this indebtedness. Would such an act have been a general law?
Would there have been any question but that it was a special act relating to certain specified municipalities ?
Can the legislature create a district and appoint commissioners to incur indebtedness in that particular district by an act which relates to, and which can only relate to, that district, and therein enact that the several municipal subdivisions of such district shall be required to bear certain burthens ? Is not that legislation as to their internal affairs, and is it not special ? What is the difference between authorizing the commissioners, as agency of the state> to fix the indebtedness to be charged upon the municipalities, and the legislature itself doing it? Can the legislature make legislation general, when done through its agents, which would be special if done by itself?
The mere statement of the proposition refutes it.
Section 14 makes it perfectly clear that the whole scope and purpose of the debt-paying sections of the act of 1903 was to impose the taxes to pay the debts upon the several municipalities within the sewerage district, and to impose them upon the municipalities, as such, and not to impose the taxation upon the sewerage district, as such.
By this last section it is made the duty of the commissioners to apportion the indebtedness, sinking fund and other charges for each fiscal year “among the respective municipali
By section 15, the same method is provided for raising, the money for operating and maintenance expenses.
Upon such apportionment being ascertained and fixed, it is declared that the sewerage commissioners shall “certify to the assessor, taxing board or taxing officer of each of said municipalities or taxing districts lying in whole or in part within said sewerage district the amount of tax required to be levied, assessed and raised in each of their respective municipalities and taxing districts for said purposes.” Pamph. L. 1903, p. 169, § 16.
It is quite clear that an act which would authorize certain municipalities (naming them) to raise money in the way this act requires that they shall, would be a special act regulating the internal affairs of such municipalities, and would be void.
There is no peculiar feature, in the subject-matter of this legislation, applicable to these municipalities situated upon the Passaic river which would not be equally applicable to other municipalities similarly situated upon any other river or stream in the state.
An act allowing municipalities upon tidewater to do certain things only possible to tidewater conditions, would no doubt be general.
So an act allowing municipalities lying upon the rivers -or streams of this state to do certain things,' which only municipalities situated as they are could do-, would no doubt be constitutional. But'would an act allowing municipalities upon the Passaic river to do certain acts be general- if there were no reason why such an act would 'not' apply with equal ■benefit to municipalities similarly situated upon the Dela-ware or the Raritan?
Such a law is .general only when it authorizes all cities or boroughs, or townships or other municipalities, covering a, constitutional class, to do certain acts relative to municipal1 affairs, in districts. Allison v. Corker, 38 Vroom 596.
When, therefore, the legislature confers this power upon sewerage districts, it must confer it upon the genus, and not upon one of the species. The act must embrace all to which it can equally apply and exclude none.
If sewerage districts can be created with appropriate characteristics to constitute a class for municipal legislation, then legislation applicable to all of the class is general and valid. Hammer v. Richards, 15 Vroom 667; Johnson v. Asbury Park, 29 Id. 604; Anderson v. Trenton, supra; Hermann v. Guttenberg, 34 Vroom 616.
But the legislature cannot set up one such district and legislate as to its internal affairs eo nomine.
Whether, therefore, you look at this statute as authorizing the Passaic Yalley Sewerage District Commissioners to issue bonds, or as one charging the payment of the bonds, proportionately, upon the separate municipalities or taxing districts lying in whole or in part within the sewerage district, it is equally unconstitutional.
As to the sewerage district it is a special act, as by its terms it applies solely to the Passaic Yalley Sewerage District, a single municipality. As to the separate municipalities within the said sewerage district it is a special act, because it applies to them and regulates their internal affairs for the
Eor another reason I think this statute is also unconstitutional.
The Court of Errors and Appeals of this state, speaking by Mr. Justice Depue, has declared: “Except as the legislature of the state may confer upon political divisions powers to legislate and to provide revenue for defraying the expenses of the local governments, it has no power to delegate the' power of taxation to municipal officers, or to another department of the government.” Township of Bernards v. Allen, 32 Vroom 228.
The most vital principle of all free government is rested upon this doctrine.
If sewerage districts may be created with commissioners having authority to regulate, control, and fix the amount of tax necessary to construct and maintain sewers, without any right in the people to vote upon the amount to be levied, why not police districts, with police commissioners to control that power, to employ a force and direct what tax shall be levied in each of the municipalities within the police districts to maintain the police force?
Judge Cooley, in his work on Taxation, at p. 48 (1876), says:
“The power to impose taxes, like any other branch of the legislative authority, must be exercised by the legislature itself and cannot be delegated to municipal officers or even to another department of government. This is a principle which pervades our whole political system, and, when properly understood, admits of no exception. The people create a legislative department for the exercise of the legislative power, and they vest it with no authority to relieve itself of the responsibility by a substitution of other agencies.”
At another point, in the same connection, this learned author states that there is one clearly defined exception to this general rule existing in the case of municipal corporations in the levy and collection of taxes for local purposes.
The same principle as that enunciated by Mr. Cooley will be found in Boroughs on Taxation, ch. 11 (1877), and the rule is there stated this way:
“No tax can be levied without the authority of the legislature of the state. The power to tax is vested in this branch of the government. This power is exercised either directly by the legislature or indirectly, as in the cases where it is, delegated to subordinate political divisions of the state, such as counties or cities.”
In 27 Am. & Eng. Encycl. L. 619, tit. “Taxation," the rule is stated this wise:
“Legislative power has by the constitution been committed to the legislature as a distinct department of government. Such power cannot be delegated by the legislature to any other department of the government or to any citizen or citizens in either a private or official capacity. It is accordingly held that the power of taxation cannot be delegated to the judicial department, to municipal or administrative officers, or to individuals, or private corporations.”
This brings us to the question of whether the statute under review confers upon the Passaic Valley Sewerage Commissioners power to levy taxes, vesting in them the right to fix the amount of the tax and to direct the levy thereof.
It would seem impossible to give any other construction to the statute upon a consideration of its most plain terms.
The commissioners are authorized to incur obligations, issue bonds, and otherwise incur indebtedness, and by the fourteenth and fifteenth sections they are to determine, on
This section then proceeds to give details.
This statute is too clear for construction; it interprets itself.
These commissioners are certainly municipal or administrative officers; they are not representative of the people, and under our form of government the right to levy taxes is inherent in the people, through the legislature or through local political divisions, such as counties and cities, self-governing.
Hitherto, in considering this case, I have treated the “Passaic Valley Sewerage Commissioners” as a municipal or (/Most-municipal corporation, and the result so far reached has been upon the basis that it was such, and the purpose has been to show that even if it were, the- act is unconstitutional for the reasons hereinbefore stated; but a careful review of this statute convinces me that the Passaic Valley Sewerage District is not a political division of the state in the sense of a municipality (the majority opinion, I think, concedes this), and if it be not, the rule of law applicable to this •district on the question, of taxation is very well settled, at least in this court, in this state.
The decisions in Hew Jersey on this subject are gathered •together in 27 Am. & Eng. Encycl. L. (at p. 621), and the_ •.principle declared in them is there stated as follows: “The
The district here created is unquestionably treated for a specific purpose, and is defined as a sewerage district. It is not a political division of the state with any power of local self-government, or any other kind of self-government; its government, and the imposition of taxes, in so far as either is conferred, is cast upon a commission appointed by the governor.
True, the sewerage district is composed of many political divisions, the identity of each being maintained and reserved, and the entire territory of each being included within the district, save in one or two eases; but the rule stated above as embodying the'principle of tire decisions of this state, as I understand it, not only applies where a district lies within a township, but where a district embraces a part of a county or other political division of the state, or where a district is not itself made a political division of the state with powers of local government.
The Passaic Yalley Sewerage District is composed of parts ■of four separate counties, and of more than one municipality in each of the counties, and hence embraces parts of four separate political divisions, namely, counties, which have the powers of taxation for local purposes under our form of government, as declared by Mr. Justice Depue in the Bernards township case.
That this district as created could have conferred upon it, under its present form, the right to impose burdens upon the property in the district for special benefits, is well settled; but to impose such burdens by the levying of a tax through a commission appointed as this one is, and not through a representative political government, is against a long series of decisions in this court and contrary to every principle of
In Lydecker v. Englewood, supra, Mr. Justice Dixon declares: “The political divisions of the state are those which are formed for the more effectual or convenient exercise of political power within the particular localities. Originally counties and townships, in which a uniform state policy is observable, composed this class almost or quite exclusively; then, as population became denser in certain places and there was added to- this common design a special necessity for local government different from that appropriate to more rural districts, villages, towns and cities were constituted. * * * They also became political divisions. In these institutions, therefore, must be discovered the essential characteristics of their class, and they will be such common and prominent features as have co-existed' with these organizations throughout their history and are not possessed by other bodies of legislative creation, which stand outside of the same category. These distinctive marks are, I think, that they embrace, a certain territory, and its inhabitants organized for the public advantage, and not in the interest of particular individuals or classes'; that their chief design is the exercise of governmental functions, and that to the electors residing within each is to some extent committed the power of local government, to he wielded either mediately or immediately within their territory for the peculiar benefit of the people there residing.
In Auryansen v. Hackensack Improvement Commission, supra, Justice Reed declares: “The taxing district, as we have stated, is not co-extensive with any township, and therefore, unless the legislature has conferred upon the taxing district itself such powers of local government as to impart to it a political character, the tax must fall, as its imposition is obnoxious to the rule promulgated in Baldwin v. Fuller, 10 Vroom 576.”
Without further quotations from the above citations, enough has already been said to make it clear that a district created by legislation which does not have in it, to some extent, elements of local government committed, to the electors residing therein, cannot be a political division. Only political divisions having representative forms of government can levy taxes.
I think, also, that the other objection raised to the act, namely, that it offends against that other clause in paragraph 11 of section 7 of article 4 of the constitution, which inhibits special legislation “appointing local officers or commissioners to regulate municipal affairs,” is well founded.
By section 1 of the act the governor is authorized to appoint the commissioners of the “Passaic Valley Sewerage District” as their terms of office expire, and the commissioners appointed under chapter 49 of the laws of 1902, supra, are continued in office not only until the expiration of their terms, but until the first Tuesday in May next succeeding the expiration of their terms.
An act which continues in office all officials in the whole of a constitutional class of municipalities is constitutional, as was held in Boorum v. Connelly, 37 Vroom 197. But such an act, if applied to a single city of the class would not be constitutional. So, upon principle, it may be that a general law, authorizing the governor to appoint commissioners for certain governmental or departmental purposes in cities or in other constitutional classes of municipalities,
It was also contended upon the argument that the act of April 22d, 1903, was a special act, conferring corporate powers, and hence in conflict with the last clause of paragraph 11 of section 7 of article 4 of our state constitution, which declares “the legislature shall pass no special act conferring corporate powers.” AYhether this provision of the constitution is applicable depends upon what character of a corporation the “Passaic Valley Sewerage Commissioners” is. If it is a municipal corporation, then this provision of the constitution does not apply, as, in Pell v. Newark, supra, it was expressly held that a municipal corporation may be created by special act. But, if it is not a municipal corporation, as the majority opinion seems clearly to hold, then it seems impossible to escape the conclusion tliat the act of April 22d, 1903, is avoided by the constitutional inhibition1 against conferring corporate powers by special act. That the Passaic Valley Sewerage Commissioners are created a corporation, and have conferred upon them corporate powers, is too clear for discussion. It is only necessary to read section 3 of the act creating them to establish this fact. Pamph. L. 1903, p. 780.
That the act is special in Us conference of corporate powers cannot be doubted. It is of little concern, therefore^ in the view I take, whether it is or is not a municipal corporation. If it is, I think I have shown it to be a special act regulating municipal affairs. If it is not municipal then what is it, if not a special act conferring corporate powers ?
Two other grounds of objection were urged upon the hearing against the validity of this law.
First. That it provides a scheme of taxation which is not uniform over the whole area affected.
Whether this act is void for either of these reasons is of little concern, as I think it void for the other reasons given, and as they go to the avoidance of the whole statute, other valid objections, if they exist, need not be pointed out, as such labor would answer no useful purpose.
In reaching this conclusion I am not unmindful of the fact, urged by counsel on the argument, that the statute under review is claimed to be one of great public benefit; but that fact, if conceded, cannot change the obligation of a court under its imperative duty to declare legislation void which is inimical to constitutional restrictions. No legislation can be deemed by the court to be beneficial to the public if in conflict with the constitution which the people have adopted for themselves.
In my view the act of April 22d, 1903, is unconstitutional, and the resolution brought up by the writ in this case should be set aside.