For the prosecutor, Russell G. Conover.
For the defendants, Ira F. Smith.
Before Justices Parker, Campbell and Bodine.
The opinion of the court was delivered by
PARKER, J. It would be a comparatively short matter to dispose of this case wholly on technical grounds, but as it involves questions of territorial jurisdiction and resultant questions of the right of taxation of lands, which once deemed worthless, have now become valuable, we regard it as important to express our views on the merits of the matter.
The fundamental question involved relates to the correct location of the boundary line between the townships of Dover on the south, and Brick on the north, in the county of Ocean, from the point where it strikes the south branch of Kettle Creek, on the west side of Barnegat Bay and runs eastwardly to the ocean, crossing the sandspit at a point some three miles
south of Mantoloking. In this neighborhood are situated the twin settlements called Normandy Harbor, fronting westerly on the bay, and Normandy Beach, fronting eastwardly on the ocean. Both Dover and Brick townships claimed the right to tax them; and to settle the boundary line, the township committee of Brick township applied to the Court of Common Pleas, pursuant to the provisions of Article VIII of the Municipalities act of 1917 (Pamph. L., p. 341, et seq.) for the appointment of a commission, which was accordingly appointed, held its hearings and made a determination, which, with the proceedings bearing thereon, is brought up by this writ.
It may be well at this point to dispose of a constitutional question raised by counsel for prosecutor. His point, in brief, is that the power sought to be exercised under Article VIII is a legislative power and cannot be delegated. We may concede for present purposes that a legislative power to delimit the boundaries of a municipality cannot be delegated; but we do not agree that the power granted by the act in question is a legislative power; on the contrary it is a judicial or quasi -judicial power. The language of the act is: "for the appointment of three commissioners to fix, determine and monument said boundary line between said municipalities, which line, when finally fixed, determined and monumented, shall remain inviolate." This does not appear to us to differ in substance from the older statutes bearing on the matter. Pat. 295; Rev. 1877, pp. 211, 212; Comp. Stat., p. 1685. By these, in the case of counties, the Supreme Court, on application, is to appoint commissioners to "run, survey, mark and ascertain the said line," &c. The same language is used in the case of townships. Comp. Stat., p. 1686, §§ 7, 8 and 9. The language of the Municipalities act seems to be taken from the first section of "An act to settle disputed boundaries between adjoining cities of this state." Pamph. L. 1889, p. 46; Comp. Stat., pp. 591, 592. This, as well as paragraph 1 of Article VIII of the Municipalities act, begins: "Whenever there is a dispute or uncertainty concerning the true boundary line," &c., and uses
the language "fix, determine and monument." This language, taken with its context looking toward the settlement of a dispute about the true location (which will be found also in the old county and township act of 1798 -- Pat. 294, 295), we regard as identical in purport with that of the old act, and as calling for a judicial, and not a legislative, fixation of such boundary. Consequently, if in the present case the commissioners had determined the matter judicially, their finding would be invulnerable from a constitutional standpoint. In fact they began correctly but strayed from the true path at the end.
The question before them for judicial solution was one to be answered conformably to the act of 1850 (Pamph. L., p. 73), reprinted in Comp. Stat., pp. 1690, 1691, section 3 of which describes the township of Brick which was carved out of the townships of Howell and Dover, as beginning at the mouth of Manasquan river and running westerly and southerly on lines which are well settled and need not be here described, the last of which (running about east southeast) is "a straight line to Polhemus' Mills, on the south branch of Kettle Creek." Up to this point there is no dispute. The statutory description proceeds: "thence, along the said creek, the several courses thereof, to the bay." The commissioners regarded this as calling for the middle line of Kettle Creek, and no complaint is made of that finding, nor of the selection for the end of this line of "a point halfway between the high water lines of ...