Borough of Collingswood v. State Water Supply Commission

The opinion of the court was delivered by Bergen, J. The appellant, having determined to construct a municipal water-supply plant for the purpose of supplying the inhabitants of the borough of Collingswood with a public water-supply, presented to the State Water Supply Commission plans and specifications for the proposed — 674 — plant, and petitioned the commission, to sanction and approve the same, such approval being necessary before the appellant could lawfully divert water “from any new or additional sources of water-supply,” for the purpose of supplying “the inhabitants of any municipality with water, either from surface, sub-surface, well or percolating sources.” Pamph. L. 1910, p. 551. Wilson v. Collingswood, 52 Vroom 634. The petition sets out that the proposed supply of water is intended to be drawn from artesian wells sunk along the bank ■ of Cooper river in the borough of Collingswood, at which point there are numerous unfailing springs. The commission after hearing the testimony offered by the parties, made the following order, “and thereupon, on motion duly seconded and carried, it was ordered that the application of the borough of Collingswood for permission to acquire a new water-supply be refused.” The appellant thereupon applied for, and was allowed, a writ of certiorari requiring the State Water Supply Commission to certify the “said decision” and all proceedings concerning the same to the Supreme Court, and this being done, that court affirmed the order or resolution of the state board, from which determination the appellant has appealed. In considering the merits of this appeal, which is limited by the appellant to the legality and reasonableness of the order appealed from, it is manifestly appropriate to first consider whether the order is within the purview of the statute which is relied upon to support it. It is common knowledge that prior to the statute, to which reference will be made hereafter, municipalities, private corporations and individuals in different parts of this state were acquiring and diverting to their use, a considerable portion of the public water-supply, some under laws which delegated such power to local governments established by the legislature, but in many cases by those whose right to do so was, perhaps, of doubtful authority, and the potable waters of the state were being rapidly gathered into the hands of a few, a condition which, in view of the rapid increase of population, became a — 675 — cause of great anxiety, if not of alarm, to such inhabitants of the state as were not benefited by such ever growing segregation for the use of particular localities. The question became so momentous that in 1907 the legislature undertook to deal with it, and in that year (Pamph. L.) p. 633), a statute was enacted which provided for the appointment of five persons to constitute a commission to he known as the State Water Supply Commission, “charged with a general supervision over all the sources of potable and public water-supply to the end that the same may be economically and prudently developed for the use of the people of this state.” Section 2 of this act declares that no municipal corporation engaged in supplying, or proposing to supply its inhabitants with water “shall have power to condemn lands or water, or any new or additional source of ■water-supply, or to divert water from such new or additional source until such municipal corporation, corporation or person has first submitted descriptions thereof, which shall be accompanied by maps and plans, to said commission, and until said commission shall have approved the same.” Section 3 authorizes municipal corporations to make application to the commission for the approval of its plans for obtaining a new or additional source of water-supply, and provides for a public hearing upon due notice at which all persons affected by the proposed plans may be heard for or against the granting of the application. It further provides that after due bearing “the commission shall decide whether the plans proposed are justified by public necessity, or reasonably anticipated public use, and whether such plans interfere unduly with the opportunity of other municipalities to obtain a water-supply by the taking of waters necessary for their use, or whether the reduction of the dry season flow of any stream will he caused to an amount likely to produce unsanitary conditions, or otherwise unduly injure public or private interests.” And it was also declared that the approval of the commission shall constitute the state’s assent to the diversion of water and the construction and operation of — 676 — water works. In 1910 (Pamph. L., p. 551) the commission was given the same jurisdiction and supervision “over well, sub-surface, or percolating water-supplies now or hereafter furnished to the inhabitants of any municipal corporations as it now has over surface municipal water-supplies so furnished.” This statute, in our opinion, does not confine the power of the State 'Water Supply Commission to the approval or non-approval of the physical character of the construction proposed, for it is expressly charged with a general supervision over all sources of potable water-supply to the end that it may be economically and prudently developed for the use of the people of this state, and this supervision includes the determination of whether the plans proposed, which includes the source of supply, are justified by public necessity, and whether such proposed diversion of the quantity necessary for the applicant’s use will interfere unduly with the obtaining of water by other municipalities, and also whether the amount taken will so affect the flow of any stream as to be likely to produce unsanitary conditions or otherwise unduly injure public or private interests. All of this requires more than the approval of the physical structure, and we think that it commits to this commission the power to say whethep in a given ease the supply of water to be taken is likely, among other things, to interfere unduly with the opportunity of., other municipalities to obtain a water-supply, and whether what is proposed to be done is justified -by public necessity or reasonably anticipated public use. The power of the legislature to conserve the public waters of the state for the benefit of all the people of the state is not questioned, and if the legislature has committed to its agent, what, in the estimation of some of its citizens, appears to be an undue power, it can only be corrected by the legislature and not by the courts of the state, and finding as we do that the power to sanction and approve, or to withhold it, is committed to this commission, we cannot say that its action was illegal, if reasonable. Is it reasonable, is the remaining question. — 677 — On this point the appellant argues that as the water which is now supplied to the borough of Coliingswood by contract with a private corporation is drawn from the public water-supply, such supply would not he diminished by granting this application, because, to the extent of the diversion from a new source, the present draft on the public water-supply would he relieved, and therefore there is no escape from the conclusion that the presence of the existing water plant was the only fact which led to ° the refusal of this application, and that the effect of the refusal is the protection of a monopoly. This is not a fair statement of the position of the commission, their determination being, that as the municipality was now being supplied with water in sufficient quantity, of good quality and at reasonable rates, there existed "no public necessity or reasonably anticipated public use” which required a new draft upon the public waters of the state, and this we think was the exercise of a discretion conferred by the legislature, for when a municipality proposes a draft upon a new source of water-supply, the commission have a right to consider the fact that the municipality is now being supplied from another source, in determining whether there is a "public necessity or reasonably anticipated public use” required to be supplied by tapping a new source of supply, and we cannot say that in determining that no such public necessity existed, the commission abused the discretion conferred upon them by tire statute, or that such conclusion is without evidential support and therefore unreasonable. It is further argued that the borough is a growing community increasing rapidly in population, and that its expansion would be stimulated if it was known that it owned its own municipal water-supply plant. This argument does not affect the question of the reasonableness of the determination of the commission. It bears upon the promotion of the growth of the city rather than in support of the claim that there is a public necessity or a reasonably anticipated public use. — 678 — It is also urged that the suggestion contained in the opinion of the Supreme Court that the private corporation now furnishes water which does not come from the public water-supply was not correct, because the supply furnished by the private corporation to appellant is provided by the Merchantville Water Company, which derives its supply from the public water sources of the state. But assuming that to be so, the judgment of the Supreme Court was not put upon that ground. It was simply an argument in answer to a proposition advanced by the appellant, and not necessary to the determination of the cause. We are of opinion that the commission is given by the statute the power to refuse a municipality the right to divert water from a new source of supply, if there exists no public necessity or reasonably anticipated public use therefor, and where as in this case the Supreme Court has determined as a question of fact that such determination was reasonable, the conclusion of the Supreme Court will not be reviewed, if there was any evidence justifying the finding b3r the Supreme Court. Sisters of Charity v. Cory, 44 Vroom 699, 703. We think there was such evidence, and therefore the judgment of the Supreme Court is affirmed, with costs.