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In re Application of Plainfield-Union Water Co.

Decided: January 11, 1954.

IN RE APPLICATION OF THE PLAINFIELD-UNION WATER COMPANY, FOR ADDITIONAL SUBSURFACE WATER SUPPLY. (W.S. APPLICATION NO. 734); PLAINFIELD-UNION WATER COMPANY, PLAINTIFF (APPLICANT) RESPONDENT,
v.
BOROUGH OF MOUNTAINSIDE, DEFENDANT (OBJECTOR) APPELLANT



On certified appeal from the determination of the Water Policy and Supply Council of the State Department of Conservation and Economic Development to the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

[14 NJ Page 300] We remanded this cause for the correction of error in the proceedings eventuating in the challenged resolution adopted by the Water Policy and Supply Council on June 16, 1952, approving plans of the Plainfield-Union Water Company for securing an additional sub-surface water supply. It was found on the earlier appeal that evidentiary data supplied by the Council's engineering staff, not the subject of testimony adduced at a hearing on notice to the

parties in interest, and staff findings and conclusions thereon unsupported by evidence presented to the Council under the basic legal sanctions with an opportunity for rebuttal, were received and used by the Council in contravention of the essentials of procedural due process, and the Council's findings were deficient in their failure to disclose the considerations underlying the action taken. In short, it was pointed out that administrative action is of necessity judged by the grounds from which it proceeded according to the record, and the findings must reveal the basis of the discretionary administrative determination. In re Plainfield-Union Water Co., 11 N.J. 382 (1953).

After the remission of the cause accordingly, the Council gave notice of a public hearing pursuant to the judgment, to be held April 20, 1953; and when the hearing opened, the Borough of Mountainside entered an objection in writing to the jurisdiction of the Council, in terms following: The mandate "does not require, authorize, order, or permit, any further public hearing," but rather limits further proceedings "to a full consideration of all legal proofs offered upon hearings concluded, the making of finding of facts and a final determination based thereon," and thus "there exists no authority or jurisdiction for the conduct of the proposed hearing." The objection was overruled; and the hearing proceeded. Counsel for the borough thereupon announced that he would "not participate in the proceedings," although he remained and did not strictly adhere to that resolve. The Council's engineer, George R. Shanklin, was sworn as a witness and examined in chief in verification of the factual contents of his report to the Council made following the original hearing and other pertinent matters within his knowledge. An opportunity for cross-examination was extended, but refused. Counsel for the borough repeated that he would "not participate in anywise in any public hearing," upon the ground that a "further public hearing" would "violate" the mandate. The hearing was concluded, and on May 18 ensuing the Council adopted a resolution embodying findings of fact establishing in its view the public need for

the proposed water diversion, and approving the company's plans to that end conditioned as provided in the original resolution. See 11 N.J. 382.

The borough's appeal to the Appellate Division of the Superior Court was certified here for decision on our own motion.

It is now maintained: (a) that this court's mandate "did not authorize or permit any further hearing" by the Council; (b) the proofs are insufficient to support the Council's "findings" and "determination"; and (c) the Council exceeded its "statutory authority," in that its quasi-judicial function under R.S. 13:1 B -50 "clearly excludes any privilege or right, while acting as the trier of the facts, to call its own witnesses, to take sides or to act with bias or prejudice," and in violation of that duty it acted "as a party" to the proceeding, and therefore the action taken is void.

I.

Thus, we have at the outset the basic question of jurisdiction.

The filing of the notice of appeal invokes the jurisdiction of the appellate tribunal. Williams v. White, 98 N.J.L. 140 (E. & A. 1922). The rules of court provide for the taking of an appeal by notice served and filed as therein specified. R.R. 1:2-8; 2:2-5; 4:88-8. And, by the same token, the appeal divests the lower court of jurisdiction save as reserved by statute or rule. See, Ashby v. Yetter, 78 N.J. Eq. 173 (Ch. 1911), and the collated cases; Sobel v. Sobel, 99 N.J. Eq. 707 (Ch. 1926), affirmed 100 N.J. Eq. 532 (E. & A. 1927); Moore v. Splitdorf Electrical Co., 118 N.J. Eq. 311 (E. & A. 1935); Whitfield v. Kern, 125 N.J. Eq. 515 (E. & A. 1939). Jurisdiction is restored by the mandate of the appellate court, but not in ...


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