Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1911-01-05

rotary the controlling power TO author
lie the erection and maintenance of q
structure which Ia be an obstruction
to navigation and which is also in fact
an instrument of commerce.. Thai
power, he says, may be exercised by
Congress, but until it is favorably In
voked in the water company's interest
the entry upon the States land is with
out Federal authority.
Answers ~Company's Contention.
Then Mr.. Wilson proceeds to answer
a contention in the brief previously
filed by the water company that the
State acts under review are u%nconsti-
tutional, as impairing the obligation of
a contract. He first considers the char
ter powers of the company, arguing
that they must at least be limited by
the general corporation act of 1906. He
shows that In the case of McCarter
against the Hudson County Water
Company the court held that the gen-
eral corporation act does not authorize
the incorporation OF companies for the
purpose of diverting water from
streams n storing and selling the
water thus diverted. He argues that
there would seem to be no good reason
for concluding that the Hudson County
Water Company had any larger powers
when it sought to deal with water
emanating from ~subsurface sources.
He adds:
IF the court should conclude that
the general corporation act of 1906
did not authorize h company to di-
vert and sell subterranean waters
without the State the company is left
stripped of all it's alleged equities M
1t must suffer defeat, however the law
may be settled by this court in respect
to other mooted questions which have
been raised here for discussion.
The matter, therefore, stands thus:
| The complainant company by cave Of
this court seeks to justify, under it's
chartered powers. derived from the
State of New Jersey, acts which were
expressly forbidden by the statute law
of the State at the time of its incor-'
poration, and to invade, use and occupy
lands in respect to Which the state
then had definite ownership.
Nor is the matter helped by sug-
costing that the proposed occupation
involves, in last analysis, a transaction
of interstate commerce. 1t is subver-
sive to all SOUND reasoning to assert
that under any pretext a creature OF
the State can be permitted to invade
the rights and violate the statutes of
the sovereignty from which its corpo-
rate activity flow.
1T follows, therefore, that at least
the statute which forbids the laying of
pipes in the XIII Won Kul does not i'm
pair the obligation of the contracts
referred to. 1t is, after all, merely de-
claratory of a duty which already de-
volved upon the company prior to the
time of its enactment. There can be
no impairment of the obligation OF
such contracts because the corporation
was without power to make contracts
in relation to this matter If, in the exc
cution of them, the company found II
necessary to exceed its corporate
powers by violating the statute law OF
the State and committing acts of tres
pass upon lands owned by the State.
"The prayer of the bill In its praeti-
cal application would prevent h State
of New Jersey from enforcing not only
the implied duty of the corporation in
respect to the lands owned by the State,
but would also prevent the State from
enforcing against the complainant COM
pany the statutes which were in exis-
tence at the time its certificate of In
corporation was filed. Such an under.
taking cannot be a legitimate function
of a court of equity.