For North Jersey District Water Supply Commission, Oscar R. Wilensky and Bernard Feinberg.
For Passaic Valley Water Commission, Benjamin J. Spitz.
For City of Newark, Thomas L. Parsonnet and Raymond Schroeder.
For State Water Policy Commission, David T. Wilentz and Robert Peacock.
Before Justice Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. This is on the consolidated return of three writs of certiorari issued against the State Water Policy Commission at the several suits of North Jersey District Water Supply Commission, Passaic Valley Water Commission and City of Newark. The review goes to two resolutions adopted by the defendant commission on January 6th, 1941, and December 1st, 1941, respectively. The resolution of January 6th, 1941, purporting to follow the provisions of R.S. 58:2-1, et seq., fixed a minimum rate of $2.50 per million gallons for surface water diverted in excess of the free allowance effective against the prosecutors and others, and laid a charge of $1 per million gallons for such portion of the water supply diverted from subsurface, well or percolating water supplies, as had been acquired by the state's right of eminent domain. The resolution of December 1st, 1941, following protests against the higher rate, reduced the minimum rate for diverted surface water as to some of the diverters to $1.50 per million gallons.
North Jersey District Water Supply Commission is a public body organized for the purpose of providing a public water supply pursuant to the authority given in R.S. 58:5-1, et seq. It maintains a reservoir, fed by the Wanaque River, from which it furnishes water to the municipalities of Newark, Paterson, Passaic, Clifton, Kearny, Montclair, Bloomfield and Glen Ridge. It also supplies from that impoundage a number of other municipalities indirectly or on behalf of the several municipalities which participate in the reservoir project.
Passaic Valley Water Supply Commission is a public body organized by an act of the legislature to represent and act as the agent of the Cities of Paterson, Passaic and Clifton for the distribution of water and water supplies. The Commission diverts large quantities of water from the Passaic River and also, as a partner in the North Jersey District Water Supply Commission, receives water from the Wanaque supply. It owns and controls a purification plant and pumping station known as the Little Falls plant and supplies water to the named cities and also to the Borough of Lodi.
The City of Newark has a watershed and water supply system known as the Pequannock Reservoir which it has owned and operated since prior to 1907. It, also, is a partner in the North Jersey District Water Supply Commission and receives water from the Wanaque reservoir.
Defendant, State Water Policy Commission, was constituted under the authority of chapters 70 and 71 of the Pamphlet Laws of 1916, now R.S. 58:5-1, et seq., and has the function of imposing the charges which are the subject of this controversy. The statutory provision for the diversion charges was given by section 8 of chapter 252 of the Pamphlet Laws of 1907 which, so far as the points in issue are concerned, has been retained practically without change, except for subdivision into paragraphs, as R.S. 58:2-1 to R.S. 58:2-5, inclusive. It will be noted that the statute providing for the diversion charges was passed before the incorporation of district water supply commissions which serve more than one municipality and that the statute does not, in ...