The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1896-01-24

ject, by whatever name it may be called.
The name of the board or department is
not material, nor is 1t the substance of
the act, for after specifying various
boards. which may have the control of
the subject, the act says. "or other board.
body or department of any municipal cor
poration in this State having the charge
or control of the water supply"
The act must be interpreted as If it
was simply in the following form
THAT II shall be lawful for. the Board.
body or department of any municipal
corporation in this State, having charge
or control of the water supply of any
such municipal corporation, to make and
enter into a contract, etc"
The act is general, 1t creates no dis
similarity; it is uniform in its effect,
committing the subject everywhere to the
same department. that is, to the per-
sons who have control of the water sup
ply.
The diversity of name by which such
department may be designated, and of
the manner in which it is constituted,
was not created by the act of 1888, and
is wholly immaterial, SO far as concerns
the generality of this statute.
By the act of 1874. page sos, section 8,
the Board of Public Works of Jersey
City cannot make a contract for the
payment of any sum of money which
exceeds two thousand dollars, without
the concurrence of the Board of Finance
and Taxation.
The department in Jersey City in which,
at the time of the passage Of the act
of 1888, control of the water supply was
lid god MO TIM Roard of sp1b1ic Works
and the Board of Finance and Taxation.
The act of 1888, therefore, without the
proviso embraced Jersey City, and re-
quired the concurrent action of the two
Boards, which together constituted the
department in charge or control of the
water supply for Jersey City. The pro-
viso made no change whatever in the
legal effect of the act. The craftsman
of it manifestly had in his mind the
fact that in Jersey City the department
in control of the water supply consisted
of two separate Boards, and out of album
liant caution he inserted the proviso, SO
that Jersey City might not be excluded
from the benefit of its provisions, and the
act thereby rendered special and local.
The act is constitutional.
@. Under the act of 1895, page 769, can
any part of the water rights granted
by charter of the Legislature to the Nor
ris Canal Company be condemned for the
use of Jersey City?
TT contention is that the Canal
Charter of 1924 constitutes a valid con-
tract, which cannot be impaired, and
tina that its water rights. which under
and by authority of its charter, are now
devoted to a public use, cannot be taken
under the power of eminent domain.
Every government which regards the
welfare of it's people will exert its high
est power to preserve the public health
and safety. To that end a supply of
pure water is essential. To secure it in
wolves the exercise by the State not only
of the power of eminent domain. but also
of the police power.
These necessities of the public are
supreme and private rights must yield
to them.
THAT I understand to be the accepted
rule.
9TH right. however. to take private
property or the property of a corporation
must be clearly granted by the Legisla-
ture.
in Jersey City v. Montclair Railway 6
vr. 32S, there was no such grant of
power.
1.-THE charter of the Morris Canal and
the fact that its water rights are held for
a quasi public use furnish no insur-
mountable obstacle to the appropriation. of
such rights to the use of the State for
the preservation of the public health and
safety upon just compensation being
made.
Newark v. Watson. 81 Vr. 81.
In re N. Y. Lack. & Western R. r..
80 N. Y. u.
Central Bridge V. Lowell, A Gray 474.
Springfield v. Conn. River RID. 4 Cush-
ing So.
THE question is whether the act of 1895
authorizes the taking of the water rights
of the Morris Canal for a water supply to
the municipalities of the Slater"
The act provides
THAT when the proper board or other
municipal authorities of any city of this
State shall deem it proper to acquire
land, water rights or property within or
without said city for the purpose of sup
plying for said city with water. the
power of condemnation may be resorted
to as in the act provided"
The act contains this proviso:-
THAT no lands. water. water rights,
or. other property purchased, condemned
or held by any municipality in this State
for the purpose of a water supply and used
or intended to be used for such purpose
shall be condemned, or taken under the
authority Of this act"
If in this statute authority can be found
to take the water rights of the Morris
Canal, Jersey City, may invoke in its aid
| the right of eminent domain.
1t is immaterial. whether the grant of
power is contained in the express words of
the statute or arises by necessary i'm
plicatlon its force and value, when estab-
lished is no more potent in the one case
than i'll the other.
The act provides for the condemnation
of land, water. water rights or property,
when the governing authorities deem it
proper TO acquire them.
This language is not in my judgment
broad enough to include lands and water
| rights held and owned by the Morris Can
| al for its uses under State authority.
The grant of power is not more extern
sive than that usually invested in local
governments to acquire lands for public
highways. Such a grant under adjudged
cases in this court. does not carry the
| right to extinguish the. franchises of
railroad corporations. Every franchise
| granted by the State is exclusive, except
as against the State. in the absence of
express provision or necessary implication
to, the contrary.