The opinion of the court was delivered by: FORMAN
This is a suit by Algonquin Gas Transmission Company, a Delaware corporation, to enjoin the defendant, The Township of Bernards, a municipal corporation of New Jersey, from prosecuting the plaintiff on charges arising out of any alleged violation of a certain municipal ordinance promulgated by the defendant. It is before the court on plaintiff's motion for a preliminary injunction and defendant's motion to dismiss the complaint.
The compliant alleges that on February 26, 1951, the Federal Power Commission issued to the plaintiff a certificate of public convenience and necessity authorizing it to construct and operate a pipe line for the transmission of natural gas through and into the states of New Jersey, New York, Connecticut, Rhode Island and Massachusetts. After receiving this certificate the plaintiff laid out the route of its proposed gas transmission line and commenced acquisition of the necessary rights, permits, licenses and authorities from owners of land to be traversed by the pipe line and from state, county and municipal governing bodies, agencies or authorities having interests in roads, streets or other facilities devoted to public use.
It was further alleged that during the summer of 1951 representatives of the plaintiffs met with members of representatives of the defendant's Township Committee, Planning Board and Zoning Board of Adjustment with respect to the proposed location of the pipe line through the municipality, after which plaintiff selected a route through the town, utilizing various public roads or streets. On October 25, 2951, the defendant enacted Ordinance No. 21, requiring a permit to be obtained before excavation of streets and regulating such excavation in a number of ways. Plaintiff made application for permits pursuant to this ordinance, and between July 4, 1951, and March 1, 1952, acquired from owners of the soil within the limits of the streets to be used the right to install its main line gas transmission pipe line. On April 1 and 8, permits were issued to the plaintiff pursuant to the Ordinance No. 21 authorizing excavation of the streets, and on about May 1, 1952, the plaintiff began to install its pipe line in the defendant township.
On about May 20, 1952, the complaint alleges, there was introduced before the Township Committee of the defendant Ordinance No. 26, which was enacted and became effective on June 3, 1952. It prohibited anyone from making
'* * * any use of any street * * * in the Township of Bernards * * * unless and until, after petition and notice as required by the statute, the consent be granted and acceptance thereof be filed in accordance with Article 3 of Chapter 3 of Title 48 of the Revised Statutes of New Jersey (R.S. 48:3-11 et seq., as amended (N.J.S.A.).'
By its terms each day on which a violation of the ordinance occurred is deemed a separate offense and each offense is punishable by a fine of not more than $ 200 or imprisonment for not exceeding 90 days or both. The plaintiff asserted that Ordinance No. 26 was invalid and the defendant instituted an action for a penalty against the plaintiff for a failure to comply with it, alleging a violation on October 18, 1952.
The plaintiff urges the invalidity of the ordinance on the grounds that it constitutes an unreasonable burden on interstate commerce; it is not authorized by state law; it is an improper exercise of the municipality's police power; and the State of New Jersey has preempted the field of permissible police regulation of the plaintiff's activities. Asserted that if the ordinance was violated on October 18, 1952, it has been violated every day since then, on account of which it will be subjected to a multiplicity of suits, and that it is without an adequate remedy at law, plaintiff prays:
'* * * that defendant, its officers, agents, servants and employees be restrained and enjoined from prosecuting plaintiff, its agents, servants, contractors or employees on any charge arising out of any alleged violation of said Ordinance No. 26, that the Municipal Court of t Township of Bernards be stayed from taking any further steps in any proceedings now or hereafter pending before it arising out of any alleged violation of said Ordinance No. 26, that the said Ordinance No. 26 be declared invalid and inoperative and that ad interim and temporary relief be granted, restraining the prosecution of any actions or proceedings by or on behalf of the defendant, its officers, agents, servants and employees, or before the Municipal Court of the Township of Bernards pending final hearing and disposition of this complaint, and that plaintiff have such other relief as may be just and proper in the premises.'
The plaintiff moved for a preliminary injunction restraining the defendant, pending the determination of this suit, from prosecuting the plaintiff on any charges arising out of any alleged violation of Ordinance No. 26 and restraining the Municipal Court of the defendant township from taking any further steps in any proceeding now or hereafter pending before it against the plaintiff arising out of any alleged violation of the ordinance.
In its answer the defendant municipality alleged that the plaintiff's certificate of public convenience and necessity had been set aside and held void by judicial decision and denied the invalidity of Ordinance No. 26. As separate defenses the defendant asserted that because the plaintiff complied with Ordinance No. 21 it is estopped from denying authority of the defendant over the roads and streets; that as the fine is only for $ 200, the requisite jurisdictional amount of $ 3,000 is lacking; that as the plaintiff had no certificate of public convenience and necessity on or after the date of the alleged violation, it had and has no authority to engage in interstate commerce, and this court lacks jurisdiction; and that the ordinance is a reasonable exercise of the police power under the Constitution and laws of New Jersey.
The defendant moved for dismissal of the complaint on the ground that the court has no jurisdiction in that the plaintiff, lacking a valid certificate of public convenience and necessity, is not and has not been engaged in interstate commerce.
In affidavits submitted by the plaintiff and at the hearings on the motions, it was brought out that the plaintiff's pipe line crosses New Jersey and is designed ultimately to serve points in New Jersey, Connecticut, Rhode Island and Massachusetts. The pipe line is complete from its point of origin to its point of termination, the section through Bernards Township having been finished by about June 30, 1952. Though the line has not yet been put into operation, on or about August 18, 1952, the pipe line from its point of origin to its point of termination, the section through Bernards Township having been finished by about June 30, 1952. Though the line has not yet been put into operation, on or about August 18, 1952, the pipe line from its point of origin at Mt. Airy, New Jersey, to approximately the point of the first lateral interconnection at Parsippany-Troy Hills Township, New Jersey, was made ready for operation by introduction of natural gas. As Bernards, the defendant township, is located between these two points, gas was introduced into the pipes running through that township. This use by the plaintiff of its pipe line on October 18, 1952, without having complied with Ordinance No. 26, is the defendant's grounds for prosecuting the plaintiff in the Municipal Court for the violation of the ordinance.
The plaintiff's operations were authorized by the certificate of public convenience and necessity issued by the Federal Power Commission on February 26, 1951. In an opinion filed April 4, 1952, however, the action of the Federal Power Commission was set aside by the Court of Appeals, Third Circuit, on the grounds that a rival gas transmission company should have been permitted to intervene before the Federal Power Commission, Northeastern ...