On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
This appeal involves the constitutionality of the Bergen County Sewer Authority Act, Laws of 1946, c. 123 (R.S. 40:36 A -1 et seq.), and all actions taken by the Authority thereunder.
The aforesaid act was the culmination of years of effort to deal with the problem of the pollution of the Hackensack River and its tributaries. By chapter 300 of the Laws of 1945 (R.S. 58:15 A -1 et seq.), the Bergen-Hackensack Sewer Authority was created, but two years later this legislation was declared unconstitutional by the former Court of Errors and Appeals in Sherwood v. Bergen-Hackensack Sanitary Sewer Authority, 135 N.J.L. 304 (E. & A. 1947). As a result the statute under attack here was enacted and the Bergen County Sewer Authority, hereinafter called the "Authority," was created pursuant thereto.
The plans of the Authority specified a sewer disposal plant on property owned by the Borough of Little Ferry, and late in 1948 the borough was advised that approximately 130 acres of its land would be required. This land has been
owned by the borough for many years and it has used portions thereof for its garbage disposal, for emergency drainage and for recreational purposes. A lake on the land has been dedicated and reserved for emergency water supply purposes. Negotiations in respect to the area were had between the parties to no avail, and pending these negotiations the Authority without objection took possession of the property it desired and began the erection of the disposal plant. The Authority is in operation and is treating the sewage of ten municipalities in Bergen County.
Under the purported authority of the Sewer Authority Act the defendant, on September 30, 1949, instituted condemnation proceedings against the Borough of Little Ferry for the acquisition of the property in question and on December 16, 1949, Judge Leyden, as a judge of the Law Division of the Superior Court, entered an order appointing commissioners. From this order the borough appealed to the Appellate Division of the Superior Court attacking the constitutionality of the statute under which the Authority purported to act. The Appellate Division sustained the constitutionality of the act and affirmed the order appointing the condemnation commissioners. Bergen County Sewer Authority v. Borough of Little Ferry, 7 N.J. Super. 213 (App. Div. 1950). From this judgment of the Appellate Division the borough appealed to this court. The appeal was dismissed, without prejudice and without a determination of the constitutionality of the statute, on the ground of lack of jurisdiction in the Appellate Division to review the order appointing the condemnation commissioners. Bergen County Sewer Authority v. Borough of Little Ferry, 5 N.J. 548 (1950). As a consequence of this decision the borough then instituted a proceeding in lieu of prerogative writ to review the order of Judge Leyden appointing the condemnation commissioners, and in this proceeding the Law Division entered its judgment against the borough and in favor of the defendant Authority. It is from this judgment that the present appeal was taken to the Appellate Division of the
Superior Court and while there pending was certified by this court.
The borough challenges the judgment of the Law Division and in support thereof it sets down and argues six points, the first five of which attack the constitutionality of the act. We will consider them seriatim.
The first point raised by the borough is that the order appointing the condemnation commissioners was violative of Art. XI, Sec. IV, par. 10 of the State Constitution. It is contended that this provision vested the power to appoint condemnation commissioners in the Chief Justice, and that that power could not be exercised by a judge of the Law Division of the Superior Court.
Prior to the adoption of the Constitution of 1947 the eminent domain statute provided for the appointment of condemnation commissioners by petition to a justice of the Supreme Court or a judge of the circuit court, R.S. 20:1-2. The constitutional provision relied upon by the appellant transfers all functions, powers and duties theretofore devolving upon or exercised by the justice and judges of the courts abolished by the Constitution to judges of the Superior Court "until otherwise provided by law or rules of the new Supreme Court." An exception in the provision provides that statutory powers not related to the administration of justice as were then vested in any of the judicial ...