For the prosecutor, Benjamin J. Spitz.
For the defendant, Walter D. Van Riper, Attorney-General (by Robert Peacock, Deputy Attorney-General).
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. Prosecutor, Passaic Valley Water Commission, a public body engaged in the supply and distribution of water for the Cities of Paterson, Passaic and Clifton brings certiorari to review a certain resolution and determination of the defendant, Department of Conservation, Division of Water and Supply of the State of New Jersey, adopted on August 2d, 1945, denying the request and demand of prosecutor for a reduction of the charges for excess water diversion from the Passaic River watershed during the year 1944.
The respective parties agree as to the facts and accordingly the only issue before us is that of the proper judicial construction
to be applied to the pertinent statute involved. The statutory provisions material to the issue are found in R.S. 58:2-2 and read as follows:
"Payment for water diverted as provided in section 58:2-1 of this title shall be deemed to be a license and its amount shall be fixed by the state water policy commission [now designated as Department of Conservation, Division of Water Policy and Supply of the State of New Jersey] at a rate of not less than one dollar nor more than ten dollars per million gallons. If at all times an amount equal to the average daily flow for the driest month, as shown by the existing records, or in lieu thereof one hundred and twenty-five thousand gallons daily for each square mile of unappropriated water shed above the point of diversion, shall be allowed to flow down the stream, the commission shall fix the minimum rate and may increase the rate proportionally as a less amount is allowed to flow down the stream below the point of diversion, due account being taken in fixing said increase both of the duration and amount of the deficiency. The aforesaid one hundred and twenty-five thousand gallons daily for each square mile of unappropriated watershed shall be additional to the dry-season flow or any part thereof which may be allowed to flow down from any appropriated watershed or watersheds above the point of diversion." (Brackets ours.)
The formula adopted by defendant for the computation of the charge made to the prosecutor and other similar agencies for the diversion of water is based upon an interpretation of the statute to the effect that the quantity of water which is required to be let down by diverters is 125,000 gallons per day per square mile and as the flow in the river is diminished below that figure, a proportionally higher tax is assessed accordingly. By this formula the tax for the year 1944 complained of amounted to $14,571.30.
Per contra, prosecutor contends that the charge for diversion should be based upon the average daily flow for the driest month, as shown by the existing records. According to records known as United States Geological Survey Water Supply Paper No. 726, which were available at the ...