The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1900-12-24
WATER TAX.
It Cannot Be Levied on Real
Estate Where City Water
Is Served but Not Used.
CORPORATION COUNSELS OPINION
To Raise Money According to
Property Valuation Would
Require Legislation.
CORPORATION COUNSEL'S OPINION

At this afternoons meeting of the
Street and Water Board a legal opinion
was received from Corporation Counsel
Allan L. McDermott touching an import
ant question raised by Clerk G. T. Bouton.
The opinion fully sets out the question
and the answer. 1t runs as follows
Jersey City, Dec. a. 1890.
To the Honorable, The Board of Street
and Water Commissioners
Gentlemen-In pursuance of communi-
cation made to your Board by Mr.. George
r. Bouton, Supervising Clerk of the
WatSk. Department, I am asked whether
water tax, based on valuation, can
be imposed on real estate, improved by
buildings to which water is not supplied
from the city's pipes. Section 81 of the
City Charter provides that your Board
may impose two classes of assessments
for water, the first upon consumers, the
second by fixing, ''a sum to be assessed
annually upon all vacant lots and lots
with buildings thereon, in which Passaic
water is not taken, if the same are situ-
ated upon any road, street, avenue, alley,
or court through or in which pipes for
distributing water are laid, which prices
and sums so fixed and assessed shall be
denominated water rents" The plan for
supplying this city with potable water,
having its origin in Legislation of 1851, pro-
vided for the creation of a debt, the evil
dences of which were to be demoninated
Jersey City Water Scrip; this was sup
plemented by legislation authorizing the
issue of bonds, and it was directed, by
go 49, r, f1an feat.
rents should be fixed with reference to
paying this debt. Until 1881 water rents
were imposed upon vacant property. In
that year Nicholas Vreeland and others
attacked this form of assessment and the
Supreme Court set it saide upon the
grounds that it could not be sustained
as an assessment for special benefits,
and that it could not be supported as a
general tax. In affirming this decision,
the Court of Errors and Appeals said:-
I'VE think assessments of this kind are
invalid, because not in harmony with the
system of taxation prescribed by para
graph u, Sec. Z, Art. ". of the amended
constitution which provides that property
shall be assessed for taxes under general
laws and by uniform rules, according to
its true value This constitutional pro-
vson executed itself, and, propria vigore,
abrogated all laws for laying taxes in a
manner inconsistent herewith. It's re-
pealing force reached the Charter of
Jersey City. Under this constitutional
provision no tax can lawfully be laid upon
property which is not determined either
by special benefit or by valuation of
the property with respect to which it is
laid upon g. uniform rule of valuation at
its true value"
1t may therefore be taken as settled that
the provision of the city charter, allowing
the assessment of water rents upon vacant
lots and upon lots with buildings thereon
in which water is not used was annulled
by the constitutional amendments of 1875.
1t is proposed, in Mr.. Boutons commune
cation, to meet this decision by making
an assessment based on the value of the
improved property to which water is car
ried but not used, the theory being that
there is a constant benefit frcm the fact
that the water is available for the ex-
tinguishment of fires. But this tax would
be open to the objections that it would
not be assessed under general laws and
by uniform rules" and that existing
statutes do not give power to levy such a
tax. AS curtailed by the application of
the constitutional amendments to the
atty charter, your power is to regulate the
use of water, and, from time to time, Fix
the price for the use thereof and the
times of payment" There cannot be
found in this any power to levy water
tax based on the value of property. You
are to charge prices for things used, and
as you could not, under this power, assess
a water tax based on the value of the
property to which water is brought by
the city mains but not used by the owr-
ers. Designating such an assessment as a
Sire tax it might conform with the con-
stitutional requirement of assessment ac-
cording to value, but it would lack uni.
formity. It would provide that property
not supplied with water should pay q
fire tax while other property should be
assessed only for water used. Such an as
!. sessment could not be made under exist
ing laws and a law directing it would be
held unconstitutional. If it is desired tc
raise a water tax, based upon the value Of
property assessed, it should be levied up
on all real estate. This could be authoriz-
ed by the Legislature and be exercised ir
connection with the present system Of
charging water rents, and proceedings
Hereunder could be regulated that there
would not be any additional burden upor
those who now pay for water consumed
But until further luegislation is had upor
the subject have to advise you that the
assessment proposed cannot be levied
Respectfully,
ALLAN l.. McDERMOTT,
Corporation Counsel