On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 4 N.J. Super. 307.
For affirmance and modification -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Heher, J.
The respondent Water Company solicited the consent of the appellant governing body of the Township of South Hackensack to the laying of 137 feet of 16-inch pipe in Green Street, in the Township, in general for the extension of its area of service and, in particular, for the provision of water facilities to a business house situate on Green Street in the adjacent Borough of Teterboro, about 500 feet south of the boundary line. It is planned to lay about 600 feet of 16-inch pipe in all, connected with its 6-inch line in Green Street. Shortly thereafter, on May 24, 1948, the applicant was advised by the municipal clerk, at the instance of the governing body, so he said in the notice, that a permit for the extension would not be granted "until the Borough of Teterboro enters into an agreement with the Township in relation to the joint use of public utility."
Judgment was entered in the Superior Court setting aside "the denial of the consent" as "whimsical, arbitrary and unreasonable," and directing a reconsideration of the application guided only by the standard "of the convenience to the public or the possible inconvenience to the public, or the obstruction or interference with public travel on Green Street or the damage or the restoration of the surface of Green Street." The Appellate Division of that court "modified" the judgment to provide for "due consideration" of the application
controlled by the "public interest," the grant, if made, to be conditioned only as the "public interest requires."
It is the contention of the appellant governing body that what constitutes the "public interest in relation to the laying of pipes in a public street by a private corporation" is exclusively within the legislative province, and in limiting "the scope of such consideration by the legislative branch," the judgment here contravenes Article III, section 1 of the State Constitution, dividing the powers of government among the legislative, executive and judicial branches, and barring the exercise by the one branch of the powers of either of the others. The constitutions of 1844 and 1947 have like provisions in this regard. More specifically, it is said that the judgment directs action that is essentially a "legislative function," and that the members of the governing body "are answerable only to their constituents and their own conscience as to what may be 'due consideration' and what may be 'in the public interest,'" and are not subject to control in this behalf by the judicial process. In a word, the insistence is that this is not a justiciable question. The point is without substance.
The respondent Water Company is a public utility. It was originally organized in 1869, to supply water for public and private use. In 1881, there was a consolidation of that company and six aqueduct companies under the authority of Chapter 90 of the Laws of 1876. P.L., p. 103, § 12. The consolidated company was vested with all the powers of its constituent companies. Plainfield-Union Water Co. v. Plainfield, 84 N.J.L. 634 (E. & A. 1913); Bogert v. Hackensack Water Co., 3 N.J. Misc. 107 (1925); affirmed, 101 N.J.L. 518 (E. & A. 1925). The business is impressed with a public use; the company serves a large area in the northeastern part of the State, including the Township of South Hackensack and the Borough of Teterboro.
The Company has, by sovereign legislative grant, the power to lay mains and pipes in the public streets and highways for the performance of its functions. The legislative power in this regard has not been delegated to the municipalities
embraced within the company's field of operations. By R.S. 48:19-6, companies holding a legislative franchise to supply water to two or more municipalities, and all such consolidated corporations, are deemed incorporated under that chapter and authorized to supply water for public and private use in such municipalities, "and to exercise all the rights and powers conferred" by that chapter, and "to maintain, operate and extend its works, mains, pipes and appurtenances in such municipality or municipalities." Every such company is invested with the power of condemnation. R.S. 48:19-15. And each such company is authorized to "lay its pipes beneath such public roads, streets, and alleys as it may deem necessary for its corporate purposes, free from all charge to be made by any person or body politic whatsoever for such privilege," and also to "construct and maintain hydrants on and along such streets and alleys, provided that the consent shall be obtained of the corporate authorities of the municipality through which the pipes may be laid." R.S. 48:19-17. This latter section also provides that the pipes shall be laid at least three feet below the surface and shall not in anywise unnecessarily obstruct or interfere with the public travel or damage public or private property.
Thus, the franchise to lay pipes for the discharge of the company's undertaking is derived from the State through its legislative tribunal, and not from the municipality. The latter's authority in this regard, if not purely administrative, is but a portion of the police power to serve the common interest in a limited sphere. The local agency may not nullify the legislative franchise grant; it may regulate its exercise to serve the public convenience and necessity and the interests of the abutting landowners, but it may not destroy it by inaction. It may impose such conditions as shall be found necessary for the protection of the easement of passage and the public safety and welfare, and the streets and highways against injury and damage, and the ...