For the informant, David T. Wilentz, attorney-general (Charles H. Roemer, of counsel).
For the respondent, Lindabury, Depue & Faulks (Josiah Stryker and John Milton, of counsel).
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The question requiring decision in this cause is whether respondent who has since 1796 abandoned direct manufacture of commodities, theretofore manufactured by it, other than electricity and steam, has so violated the provisions of its charter as to justify the forfeiture thereof, or, as more specifically urged for informant, that there should be, under the proofs here exhibited, a judgment of ouster to the extent of exscinding the perpetual exemptions from taxation now enjoyed by respondent, under its charter with the state, in the city of Paterson and county of Passaic.
The facts are stipulated. It is the legal efficacy only of the facts that is in dispute. In this stipulation is set forth, among other things, the early history of the respondent (hereafter referred to as the Society), its powers under its charter and the law, as they appear in the opinion of Chancellor Williamson in the equity case of the Society v. The Morris Canal and Banking Corporation, in which the Society filed a bill for the purpose of establishing its right to all the waters of the Passaic river, at Paterson, and to restrain defendant, &c., from in anywise diverting any of the waters of the said river, &c. This case is reported in the foot note to the case of Lehigh Valley Railroad Co. v. Society, &c., 30 N.J. Eq. 145.
It will, we think, serve no useful purpose to detail, in chronological order, each of the many steps which the Society thereafter took in the prosecution of its corporate affairs. Suffice it to say, and it is not disputed, it is, in fact, conceded, that, save as to the manufacture of electricity and steam, the
Society has not engaged in the direct manufacture of commodities since 1796; that since 1796 the Society's modus operandi has been confined principally to the manufacture of power, as indicated, and to the leasing out of sites and water privileges to others operating manufacturing establishments instead of manufacturing itself as it did prior to 1796.
It may not be out of place to observe that the facts stipulated tend to indicate that the Society has, in pursuance of the growth of population, development and increase of industry, and more convenient living facilities, fully supplied the demands made upon it for leasing manufacturing sites and supplying power generated by it. It has, for example, constructed a modern hydroelectric plant on its lands at Great Falls for the generation of electricity which it supplies to its tenants, lessees, and other manufacturers for power purposes in lieu of the water which it had previously supplied them for such purposes. It has also constructed a modern plant for the generation of electric current by steam power to augment the supply of its hydroelectric plant which is unable at times because of the insufficient water power to supply the demands for electric current to its lessees and other customers. This latter plant is also used for the generation of steam and the sale and distribution thereof to mill owners, and manufacturers for industrial and heating purposes.
The stipulation further discloses that the Society does sell its surplus power, generated during the periods when the supply of water is abundant, and for which it has no storage facilities, to the Public Service Electric and Gas Company; that the Society still owns practically all of the lands which it originally acquired; that it has at all times continued to improve its works in the Passaic river at or near the Great Falls; that it has by reason of its improved modern facilities continuously made the water power thereby developed available for the use of manufacturers located adjacent to its canals; that it has permitted certain municipalities in the ...