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NEW JERSEY SUBURBAN WATER CO. v. BOARD OF PUB. UTI

DISTRICT COURT, D. NEW JERSEY


June 20, 1938

NEW JERSEY SUBURBAN WATER CO.
v.
BOARD OF PUBLIC UTILITY COM'RS et al.

The opinion of the court was delivered by: FAKE

Before BIGGS, Circuit Judge, and FAKE and AVIS, District Judges.

FAKE, District Judge.

The issue which is dispositive of this case arises on a motion to dismiss the complaint.

 The complaint, among other things, discloses that the plaintiff is a public service corporation, engaged in selling water to the defendant municipal corporation, and in the course of mutual dealings between the parties, contracts were entered into with relation to the rates to be charged for the service thus rendered. A dispute arose as to the rates and the issues involved were heard before the Board of Public Utility Commissioners of the State of New Jersey resulting in the establishment or fixing of a rate which, plaintiff urges, is confiscatory and in violation of its constitutional rights in that its property is being taken thereby without due process of law. Injunctive relief is sought.

 The dispositive issue above mentioned is found in the question as to the adequacy of the remedies provided in the courts of the State of New Jersey.

 In this connection, attention is directed to the Johnson Act, 48 Stat. c. 283, p. 775, 28 U.S.C.A. ยง 41 (1, 1a), the material part of which, for present purposes, provides that "no district court shall have jurisdiction of any suit to enjoin * * * the enforcement * * * of any order of an administrative board or commission of a State, or any rate-making body * * * thereof * * * where jurisdiction is based solely upon the ground of * * * the repugnance of such order to the Constitution of the United States, where such order * * * (3) has been made after reasonable notice and hearing, and where a plain, speedy, and efficient remedy may be had at law of in equity in the courts of such State."

 The foregoing limitation to the jurisdiction of this Court leads directly to an examination of the law of the State on the subject. Section 38 Laws of N.J., 1911, page 388, Chapt. 195, as amended, L.1918, c. 130, p. 305, R.S.N.J.1937, 48:2-43, 48:2-46, 48:2-47, provides that any order made by the Board of Public Utility Commissioners may be reviewed upon certiorari by the Supreme Court and that Court is given power to set aside any order in whole or in part when it "clearly appears that there was no evidence before the board to support the same reasonably or that the same was without jurisdiction of the board", and an appeal lies from the Supreme Court to the Court of Errors and Appeals, the Court of last resort in the State. Section 39 of the aforesaid Act, R.S.N.J.1937, 48:2-44, provides for the allowance of a supersedeas or stay, if the Supreme Court or a Justice thereof shall so direct.

 From the foregoing, it is clear that the laws of New Jersey furnish the "plain, speedy and efficient remedy", which is safeguarded by the Johnson Act, and this Court is therefore without jurisdiction to hear the cases.

 An order will be entered dismissing the complaint.

19380620

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