author: Walkbé, Citancellob.

text:
    In the matter of P., a solicitor of the court of chancery.
    [Decided July 8th, 1914.]
    1. It is a contempt for a solicitor to insert in a decree, after it has been signed by the chancellor, any provisions, though they are immaterial.
    2. Where a solicitor inserted in a decree, after it had been signed by the vice-chancellor, some rather immaterial provisions similar to others which. had been stricken out, and informed the vice-chancellor of his action, stating that he presumed it would meet with his approval, the solicitor, while guilty of contempt, does not merit disbarment, his good faith tending to excuse and purge his offence.

      In re contempt of court.
   Walkbé, Citancellob.

P., a solicitor in chancery, represented defendants in a suit before one of the vice-chancellors, in which they filed a cross-bill having for its object the cancellation of the mortgage described in the bill of complaint. The matter being decided in favor of the defendants represented by P., he presented to tire vice-chancellor a form of decree adjudging that the mortgage “be delivered up for cancellation, and the clerk of the county of * * * is hereby directed to cancel said mortgage of record.”

P. presented the draft of decree in person and the vice-chancellor struck out the concluding words “and the clerk of the county of * * * is hereby directed to cancel said mortgage of record,” for the reason that the county clerk was not a party to the suit, and that, therefore, no decree could be made against him. P. withdrew, taking the decree with him for filing in the clerk’s office, and afterwards interlined in it, in his own handwriting, after the word “cancellation,” which was the concluding word of the decree as amended by the vice-chancellor, the words “and that the same be canceled of record,” so as to make the decree read that the mortgage “'be delivered up for cancellation, and that the same 'be canceled of record ” instead of simply that it “be delivered up for cancellation,” as it was made to read by the vice-chancellor when he signed the advisory certificate at the foot thereof. The decree was subsequently signed by the chancellor, without knowledge of the solicitor’s action.

This conduct of P. amounted to a contempt of court.

Among the instances of contempt mentioned by Blackstone are:

“Those committed by attorneys and solicitors, who are also officers of the respective courts; by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice. For the malpractice of the officers reflects some dishonour on their employers; and, if fre.quent and unpunished, creates among the people a disgust against the courts themselves.” 4 Bl. Com. 284.

In 1 Bouv. Dict. (Rawle’s Rev.) 420, it is said:

“Courts of justice have an inherent power to punish all persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings.”

The conduct of the solicitor before me, subsequent to Ms contumacious act, mitigated, while it did not excuse, Ms contempt.

The decree was advised by the vice-chancellor on March 30th, 1914, and four days later, April 3d, 1914, P. wrote the vice-chancellor a letter informing him of what he had done. What he sai d in the letter can best be set forth by copying the letter itself, which is short. It reads as follows:

“I am sending you herewith a copy of tbe final decree which you gave me in tbe above case on the 30th day of March. Please note the words in quotation marks. You will recall that I suggested that the decree direct the Clerk to cancel the mortgage but you stated that tbe Clerk not being made a party you could hardly do that and, therefore, the language which you used was as follows: ‘Be delivered for cancellation of record.’ I have made the phrase read, ‘Be delivered up for cancellation and that the same be cancelled of record.’ This is part of the quotation which I above refer to. This, I am sure, is what you meant and I had no hesitation in adding the extra words.”

The solicitor having been before the vice-chancellor for the purpose of settling the decree, and the vice-chancellor having struck out the clause above mentioned for the reason which he stated, it is beyond my comprehension to understand the audacity evinced Lv counsel in deliberately writing in the decree over the vice-chancellor’s signature words by which he doubtless intended to secure the accomplishment of the very thing the vice-chancellor denied. However, it seems that he did it without corrupt motive as will hereafter appear.

The vice-chancellor, upon receipt of the solicitor’s naive letter, enclosed it to me with a letter of his own in which he said:

“While I am loath to burden you with this affair, under the circumstances I think that it is my duty to submit it to you for your consideration. Mr. - certainly had no right to alter the language which I formulated myself with my own pen, striking out from his draft of. decree the direction that the county clerk cancel tbe mortgage. You will observe that while the language which I employed merely directed that tbe mortgage be delivered up presumably to the defendant for cancellation, Mr. -’s decree puts in a positive mandate that the mortgage ‘be cancelled of record.’ The words which he inserted can only be regarded as mandate to the county clerk.”

Upon the receipt of the vice-chancellor’s letter, enclosing the solicitor’s, I immediately wrote the latter for an explanation, and he replied by letter in which, among other things, he said:

“After I arrived at my office I examined carefully the decree which he (the vice-chancellor) had advised and I came to the natural conclusion that by inadvertence he had stricken out the following words, ‘And the Clerk of the County of * * * is hereby directed to cancel said mortgage of record,’ without leaving the necessary direction, ‘To cancel said mortgage of record,’ and that by inadvertence he had read the word, ‘Cancellation’ as ‘Cancelled,’ and therefore in order to make the decree complete and as I understood he wanted it to be drawn, I added the words which are complained of after the word, ‘Cancellation,’ * * * ‘And that the same be cancelled.’
“It must be perfectly obvious to you and also to Vice Chancellor-• — • that I did not intend to deceive the court or to make any alteration of the decree without the consent of the Vice Chancellor. The words which I added were simply words which I considered necessary to properly carry out my suggestion to the Vice Chancellor, that a decree should be entered which might be filed and which would operate as a cancellation of the mortgage, without compelling the Clerk to actually cancel the mortgage on the record, and to which idea and view I thought the Vice Chancellor had agreed, and that he intended that I should have this relief. “I am exceedingly sorry that Vice Chancellor - feels that I have attempted to do anything in contradiction of the decree which he has advised, and that there has been any misunderstanding about the matter. Tour letter came as a complete surprise to me and, naturally, I was very much perturbed over its contents.”

Subsequently, the solicitor appearing at chambers, was informed by me that I proposed to charge him with contempt of court, and I asked him if he desired to be arraigned on formal charges or whether he would submit the matter on the facts above detailed. He chose the latter course, as well he might, for it is obvious that the facts speak for themselves. His only defence is a disclaimer of intentional wrong-doing. This, as a rule, is no excuse, especially where the facts constituting the contempt are admitted, or where a contempt is clearly apparent from the circumstances surrounding the commission of the act. 9 Gyc. 25. Disavowal of any intention to commit a contempt may, however, extenuate or even purge the contempt. Tbid. 26.

A case quite pertinent is that of State v. Finley, 30 Fla. 325, in which it was held:

“While the interlineation into a decree, after it has received the judicial signature, of immaterial words patently omitted therefrom through clerical oversight, may not, in the absence of proof of a bad motive or fraudulent'design in the attorney who perpetrates it, be cause for disbarment, still any manner of tampering with the decree of a court after it receives the sanction of the judge’s signature, no matter in how small a particular, and no matter how innocent or immaterial the alteration may be, is highly reprehensible and deserves severe punishment. In recognition of the sanctity of judicial decrees, chancery court rule 87 (Florida) has been provided, requiring an order of the court for the correction of clerical mistakes therein, arising from' any accidental slip or omission; and an attorney who attempts to accomplish correction otherwise should be dealt with summarily and severely.”

And the court, in the opinion, made the following observations :

“As to the second charge, of interlining the words ‘of Putnam’ in the decree in chancery in the case of Wood v. Peterman et al., after it had been signed by the chancellor, although it is denied by the relator that such interlineation ■ was done subsequent to the signing of the decree, still we think that the proof, if not prejudiced, is quite sufficient to establish the fact that it was done subsequently to the signing of the decree. This fact being established, the next question to be considered is, does the evidence show that it was done with that fraudulent, corrupt and bad motive that is necessary to have been shown before disbarment could follpw? The evidence shows that the interlineation occurred in that part of the decree that undertook to locate or describe the land involved in the decree; and the interlineation caused the sentence in the decree as signed, ‘county and State of Florida,’ to read ‘county of Putnam and State of Florida.’ It is apparent, from the evidence, and from the fact that the decree was in a case pendiug in Putnam county, that the land involved therein, to whose description the interlineation referred, did in fact lay in the county ‘of Putnam;’ and it is apparent also from the evidence of the clerk, Frank Wright, that the land was otherwise sufficiently located or described without the words interlined; and from a.11 this it is evident that the omission of the interlined words ‘of Putnam,’ was a lapsus penna on the part of the draughtsman -who prepared the decree, and that of right it was proper that they should have been put into'the decree at the point in which they were interlined, prior to its presentation to the judge for his signature thereon. * * * There was no proof that Mr. Fowler made this interlineation under the impression or belief that it added to or detracted from the substance or form of the decree, or was necessary to give it effect. The omission of the words interlined was so manifestly a clerical oversight and mistake, and in the opinion of both the judge and the clerk of the court did not affect the description of the land or the decree either in form or substance, and the words interlined being such as the law would have supplied from the other contents of the decree, * * * in considering the motive by which Mr. Fowler was actuated in making this interlineation, we might fairly presume that he did it under the impression that the judge would certainly consent to the correction of so palpable a clerical mistake, that when made affected nothing either in form or substance, rather than from any evil design.
“We do not wish it to be understood that we are inclined to condone, palliate, countenance or excuse any manner of tampering with the decree of a court after it obtains tire sanction of the judge’s signature, even to the crossing of a T or the dotting of an I therein; on the contrary, we think that such a practice is highly reprehensible, ancl deserves severe punishment, no matter how innocent or immaterial the alteration or change may be. A proper respect for the sanctity of the official judgments and decrees of our courts demands this shall be so; and in recognition of the sanctity of judicial decrees, our (Florida) chancery court rule 87 lias been provided, requiring an order of the court for the correction of clerical mistakes in decrees arising from an accidental slip or omission. But when such an interference with a judicial decree is made unauthorized and incautiously, but without any bad motive or fraudulent design, it partakes more of the character of a contempt of the court than of that moral turpitude that stamps the perpetrator as being an unfit person to exercise the office of an attorney."’

Slate v. Finley was a disbarment case, but the law as laid down by the court is entirely apposite to a case, of contempt involving facts of a similar nature.

It can hardly be said of the solicitor in the case at bar, as was said of the attorney in the Florida Case, that there is no proof that the interlineation in our decree was made under the impression or belief that it added nothing to or detracted nothing from the substance or form of the decree.

P., the solicitor, as already mentioned, incorporated in his draft of decree as presented to the vice-chancellor, a direction to the county clerk to cancel of record tire mortgage in question. The vice-chancellor deliberately struck out- that provision, so that the decree read that the mortgage should be delivered up for cancellation, ieaving the solicitor to accomplish the cancellation in the best way he could, with or without further litigation. The solicitor, after leaving the vice-chancellor, and out of the presence of the court, deliberately wrote into the decree over the vice-chancellor's signature, a provision Ihal the mortgage be canceled of record, hoping and expecting, doubtless, that with that language in the decree he could induce the county clerk to make the cancellation. If not, why did he incorporate such a provision in the decree, and why was he not content with the form in which the vice-chancellor signed it? Nevertheless, I am happj1, to say 'that I have been able to conclude — contrary to my original view — that the solicitor, P., can be put within the later observation of the Florida court, where it says that when an unauthorized interference with a judicial decree is made without bad motive or fraudulent design, it partakes more of the character of a contempt of court than of that moral turpitude that stamps the perpetrator as an unfit person for the office of attorney. Therefore, I am enabled to reduce the offence of the solicitor before me, from that which would provoke disbarment proceedings, to an adjudication that he has been guilty of a contempt of court; and 1 so find and pronounce.

The decree will be restored to the form in which it was origi- • nally signed by the vice-chancellor, and the matter of punishment of the solicitor will be reserved for further consideration.


source: Caselaw Access Project

author: WaLKEE, CtlANOELLOE.

license: Public Domain

text:
    The Second Workingmen's Building and Loan Association of New Brunswick, New Jersey, v. Ella Cecelia Wickers et al.
    [Decided September 3d, 1914.]
    1. .In a suit to foreclose a mortgage where a person is made a party defendant because of holding a judgment against the mortgagor, which judgment is by the bill alleged to be a lien upon the mortgaged premises, such judgment-creditor-defendant has no standing to move to strike out parts of answers filed, one by a married woman co-defendant without her husband joining her therein, and another by other co-defendants, both setting up that the judgment is pretended, was improvidently recovered and entered, is not a lien upon the mortgagor’s property, is insufficient and raises no ''defence, and amounts to a collateral attack upon the judgment.
    2. While formerly when a married woman put in an answer separately from and without her husband joining her, and without leave of the court therefor, such irregularity could only be objected to by the complainant to whose bill the answer was responsive. A co-defendant having no interest whatever in the question could not make the objection ; hut now, under the provisions of rule 219 of this court a married woman, party defendant in any cause, may appear by solicitor and file an answer, plea, demurrer or other pleading, in her own name, separately from her husband, and without any special order therefor.
    3. The test as to whether a party to a chancery suit may demur to a bill of complaint, or move to strike out an answer in the nature of a cross-bill, or put in exceptions to an answer, must be, whether or not, in the alternative, the party objecting could answer the pleading.
    4. To an answer in the nature of a cross-bill, the complainant in the original bill, or a co-defendant against whom it is preferred, as the case may be, is required to answer by a special replication, or move to strike out in lieu of demurring.
    5. The doctrine that a judgment pronounced by a court of competent jurisdiction is final and conclusive between the parties to it with respect to all matters put in issue in the case in which it is recovered, and must stand and be so treated everywhere, unless and until it is set aside by the court which pronounced it, or is reversed in direct appellate proceeding, does not operate to prevent proceedings in equity to set aside a judgment as fraudulent or collusive.
    6. Insufficiency means that a portion of the bill of complaint has not been answered, to which portion the complainant is entitled to an answer, and does not mean that the answer is insufficient in the sense that it presents no equitable defence.

      On bill, &c. On motions to strike out parts of answers.

      Mr. Theodore Strong, for the motions.

      Mr. John P. Kirkpatrick, contra.

   WaLKEE, CtlANOELLOE.

The hill is one to foreclose a mortgage given by Ella Cecelia Wickers and Albert George 'Wickers, her husband, and recites that they, being indebted to the complainant in the sum of $1,-600, made the bond and mortgage set out in the bill. Then follows an allegation that on September 15th, 1911, the National Bank of New Jersey recovered a judgment against Ella C. Wickers, Albert George Wickers and others in the supreme court •for $1,241.69, by virtue of which the bank claims a lien upon the mortgaged premises, but that the judgment was obtained subsequent to, and. with full notice of, the complainant’s mortgage, and if a lien upon the mortgaged premises, is subsequent to the encumbrance of the complainant’s mortgage. The bill then alleges that on November 1st, 1912, Mr. and Mrs. Wickers executed another mortgage on the same premises to Israel Marx for $300; that the Marx mortgage was executed and registered subsequent to the complainant's mortgage and with full notice, and if an encumbrance upon the mortgaged premises, is subsequent to the encumbrance of the complainant’s mortgage. Then follows an allegation of another mortgage made by Mr. and Mrs. Wickers to Israel Marx, February 1st, 1913, for $200, subject also to the priority of complainant’s mortgage. Marx died and his widow was made executrix, and, she dying, the defendants Price, Wolf-son and Pleehner were appointed and qualified as substituted administrators cum testamento armexo.

The defendant the National Bank of New Jersey filed a notice that it desires to have its judgment set forth in the bill, reported upon by the master to whom the cause may be referred.

The defendant Ella Cecelia Wickers, without her husband joining her, filed an answer to the complainant’s bill in which, among other things, she a,vers:

“And this defendant further answering' admits that there appears of record in the office of the Clerk of the Supreme Court of the State of New Jersey, a certain pretended judgment recovered by the National Bank of New Jersey against this defendant, George Wickers, Henry Weidenhaupt and C. E\ Wickers, for the sum of Twelve Hundred forty-one and 69/100 dollars or some other sum as this defendant is informed, but this defendant charges and insists that said judgment was improvidently recovered and entered and that the same is not a lien upon or an encumbrance against any property of this defendant.”

The defendant? Price, Wolfson and Plechner filed an answer making the same ayermen t with reference to the bank’s judgment.

The defendant the National Bank of New Jersey moves to strike out those answers. As to that of Mrs. Wickers because— first, she answered without her husband joining her and without leave of the court for that purpose obtained, and second, because the averment that the judgment is pretended, was improvidently recovered and entered, and is not a lien upon the defendant’s property, is insufficient and raises no defence, and amounts to collateral attack upon The judgment. As to the answer of Price, Wolfson and Plechner, because the averment concerning the judgment amounts to collateral attack.

It may be that the answer of Mrs. Wickers would formerly have been irregular, because put in separately by the wife without her husband joining her, and without leave of the court therefor (Dick. Ch. Prec. 82, note “a," and eases cited; also McDermott v. French, 15 N. J. Eq. 78); but that could only have been objected to by the complainant, to whose bill it is responsive, the defendant the National Bank of New Jersey having no interest whatever in that question. But now, under the provisions of rule 219 of this court, a married woman, party defendant in any cause, may appear by solicitor and file an answer, plea, demurrer or other pleading, in her own name, separately from her husband and without any special order therefor. And, furthermore, whatever the character of these answers with reference to the point made against them, to the effect that the attack on the judgment is collateral, the defendant who objects to them has no standing to make the attack. And for these reasons:

The averments in the answers are directed to an allegation of the complainant’s bill. The defendant the National Bank of New Jersey has filed no pleading in the case against which this attack is leveled by a co-defendant.

If either of the defendants, M.rs. Wickers or Price, Wolfson and Plechner, had filed an answer in the nature of a cross-bill against their co-defendant, the National Bank of New Jersey, alleging the judgment recovered by it against Wickers and others to be void, and praying that it be set aside in favor of their encumbrances, then the bank would have had standing to make the objection that it now levels against an answer not preferred to any pleading or allegation which it malees, but put in only to the bill filed by the complainant, another party; because in such case the motion would have been tantamount to a demurrer to a cross-bill. Westervelt v. Ackerson, 35 N. J. Eq. 43.

The test as to wdiefher a. party to a chancery suit may demur to a bill, or move to strike out an answer in the nature of a cross-bill, or put in exceptions to an answer, must be, whether or not, in the alternative, the party objecting could answer the pleading. A defendant is required to plead, answer or demur to a bill of complaint. A complainant is required to reply to an answer or file exceptions to it for scandal, impertinence or insufficiency. To an answer in the nature of a cross-bill, the complainant in the original bill or a co-defendant against whom it is preferred, as the case may be, is required to answer the pleading by a special replication, or may move to strike it out in lieu of demurring. Beyond this, neither the rights nor the obligations of the parties go.' And, measured by this test, a defendant may neither except to a co-defendant’s answer nor move to strike out an answer in the nature of a cross-bill, not directed to him. And, further, measured by this test, the motions to strike out in this case are misconceived.

Of course, a judgment pronounced by a court of competent jurisdiction is final and conclusive between the parties to it, with respect to all matters put in issue in the suit in which it is recovered, and it must stand and be so treated everywhere, unless and until it is set aside by the court which pronounced it, or is reversed in direct appellate proceedings. See National Docks Co. v. Pennsylvania Railroad Co., 52 N. J. Eq. 58, 61. But that does not prevent a proceeding in equity to set' aside a judgment as fraudulent or collusive. See N. J. Dig., tit. “Judgment ” & Equit. Rel. §§ 150, 151, and cases cited.

The answering defendants claim that under the authority of Brantingham v. Brantingham (Chancellor Williamson, 1858), 12 N. J. Eq. 160, they ¿re entitled to set up in answers in a foreclosure suit, that a judgment recovered against the mortgagor in another court, which would displace their lien or interest, is invalid, at least as against suqh lien or interest.

Apparently, Mrs. Wicker’s only interest in averring the invalidity of this judgment is, tiiat if there should be any surplus money arising from tire sale of the mortgaged premises after the payment of the complainant’s mortgage and the two Marx mortgages, all of which she admits are valid liens, she would he entitled to the remainder, without its being tolled to pay the bank’s judgment. And, quite apparently, the interest of the defendants Erice, Wolfson and Plechner, in averring the judgment to be invalid, is to put' themselves in position to reach the surplus after the payment of the complainant’s mortgage, although they do not aver, in terms, that by reason of the invalidity of the judgment their mortgages are to be advanced in priority over it.

These averments in the answers of Mrs. Wickers and of Price, Wolfson and Plechner are apparently within the practice laid down in Brantingham v. Brantingham, supra, except that the averments before me may, in and of themselves, he insufficient (by reason of meagreness and lack of detailed facts) to raise the issue that the defendants seek to import into the case. But, as-to that, no decision is necessary.

The motions to strike out in this case are tantamount to exceptions to an answer, which may be taken for scandal, impertinence or insufficiency. I cannot better describe the situation on this head in the ease at bar than to quote the,language of Vice-Chancellor Eeed in Steepy v. Public Service Corporation, 65 N. J. Eq. 529 (at p. 530), where he said:

“I do hot perceive that the answer is obnoxious to an exception upon either of these grounds. It is not scandalous, nor impertinent, nor insufficient, in the sense in which that word is used in this connection. Insufficiency means that a portion of the hill has not been answered, to which portion the complainant is entitled to an answer. It does not mean that it is insufficient in the sense that it presents no equitable defence.”

Subjected to this test, it will be seen at a glance that the answer, in the respect objected to, is not insufficient. Therefore, the motions to strike out cannot prevail. But, moreover, as already stated, such motions, if well founded, could only be made by the complainant, to whose bill the answers are responsive. They cannot bo made by a defendant against a co-defendant whose pleading in response to the complainant’s makes an averment that the objecting defendant’s encumbrances are invalid. The encumbrancer thus assailed is in no worse position than as if his co-defendant made á verbal statement to the same effect. He would not be obliged to answer either, and, consequently, would be bouiid by neither.

As the defendant the National Bank of New Jersey had no standing whatever to make the motions to strike out the answers under consideration, quite aside from the defendants’ right to plead as they did, both motions must be denied, with costs;


author: Walker, Chancellor.

text:
    The Board of Health of the State of New Jersey v. The Inhabitants of the Town of Phillipsburg.
    [Decided August 28th, 1914.]
    1, By an act of the legislature (P. L. 1899 p. 536) entitled “An act to prevent the pollution of the waters of this state by the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards, and prescribing, defining and regulating the powers .and duties of such commission and such boards,” the state sewerage commission was constituted; and, by a supplement thereto (P. B. 1908 p. 605) reciting the title of the original act, all the' powers and duties theretofore vested in and executed by the state sewerage commission were vested in, and were to be executed by the board of health of the State of New Jersey. Upon a bill filed by the board of health of the State of New Jersey to enjoin the town of Phillips-burg from polluting the waters of the Delaware river by permitting sewage and other polluting matter to flow therein from its sewers and drains — Held, that such legislative transfer of jurisdiction from the state sewerage commission to the state board of health is efficacious, although not expressed in the title of the supplement.
    2. While the constitution, article 4, section 7, plaoitum' 4, provides that “every law shall embrace but one object, and that shall be expressed in the title,” the meaning is that the.leading subject of a statute should be fairly expressed in a statute; but the means or instruments by which the general purpose is to be attained, or matters merely incidental to it, are not a necessary part of the title, the words “subject” and “object” with regard to this constitutional provision having come to be regarded as synonymous.
    3. If it is only necessary to express the general object of a statute in its title, and in expressing it, it is not necessary to express' the means or method of attaining that object, or name the instrumentality for carrying it out, then, even if such minor or incidental matters are included in the title of a given statute, they cannot operate to deprive the legislature of its power to amend a given act in reference to those minor and incidental matters, through amendments of, and supplements to, the original act, appropriately reciting the title of that act.
    4. The supplement of 1907 (P. L. Í907 p. 360), providing that “ ‘waters of this state,’ as used in this act and the act to which this is a supplement, shall include the ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this state or subject to its jurisdiction,” extends to, and comprehends, the Delaware river at the town of Phillips-burg.
    5. While the title to the bed of the Delaware river above tidewater is in the private riparian owners, subject to the paramount public right of user, that use can as well be directed towards purification of the stream as towards control for the purpose of navigation.
    6. As power to conserve the potable waters of the river Delaware by legislation, enforceable on, in and under the waters flowing within the boundary, and subject to the jurisdiction, of the State of New Jéísey. was not included in the enumeration of rights to be exercised conjointly by the States of New Jersey and Pennsylvania in the compact of 1783 (Comp. Stat. p. 5368), that power, was retained by this state by as clear an implication as though it was, by express language, so reserved in the pact.
    7. It is no ground for denying an injunction to stop the town of Phillipsburg from discharging its sewage into the Delaware river, that the sewage of the city of Easton in the State of Pennsylvania, and the polluting flow of the Lehigh river in the State of Pennsylvania, are discharged into the same stream in the same locality.

      8. The authority given originally to the state sewerage commission, but now vested in the state board of health, authorizes the board, if it finds that any of the waters of this state are being polluted in such manner as to cause or threaten injury to any of the inhabitants of this state either in health, comfort or property, to apply to this court for an injunction to prevent violation, or to enforce the provisions of, the act; and, therefore, the injury need not be actual, but only threatened.
    On bill' &c. On final hearing oh pleadings and proofs.

      Mr. Nelson B. Gashill, assistant attorney-general, for the complainant.

      Mr. John I. Blair Beiley and Mr. Gilbert Collins, for the defendant.
   Walker, Chancellor.

The complainant in this cause is a gwasi-corporation created and existing under and by virtue of an act of the legislature! approved March 31st, 1881 (P. L. 1887 p. 80), and the various acts amendatory thereof and supplementary thereto.

The state sewerage commission was constituted under and by an act of the legislature approved March 34th, 1899. P. L. 1889 p. S86. The title of this act is important in this litigation. It reads as follows:

“An act to prevent the pollution of the waters of this state - by the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards, and proscribing, defining and regulating the powers and duties of such commission and such boards.”

This act was subsequently amended in extenso by an act approved March 31st, 19Q0. P. L. 1900 p. 118.

To this act a supplement-was passed, approved May- 1th, 1901. P; P. 1907 p. 861. '

In and by section 1 of the last-mentioned act it was provided as follows:

“The state sewerage commission .is hereby authorized and empowered to inspect any of the waters of this state, and if it finds that any of the waters of this state are being polluted in such manner as to cause or threaten injury to any of the inhabitants of this state, either in health, comfort or property, it shall be its duty to 'notify, in writing, any person, municipal or private corporation found to be polluting said waters that prior to a time to be fixed by said commission, which time shall not be more than five years from the date of said notice, said person or corporation must cease to pollute said waters and make such other disposition of the sewage or other polluting matter as shall be .approved by said commission; any person or corporation aggrieved by any such finding may appeal therefrom to the court of chancery at any time within three months after being notified thereof, and the said •court' is hereby authorized and empowered to hear and determine such appeal in a summary manner, according to its course and practice in other cases, and thereupon to affirm, reverse or modify the finding of •said commission in such manner as it may deem just and reasonable.”

And by section 2 as follows:

“The state sewerage commission is hereby authorized to apply to the •court of chancery for writ of injunction to prevent any violation of or enforce the provisions of this act and the act to which this is a supplement, and it shall be the duty of the said court, in a summary way, to hear and determine the merits of said application; and in all such •cases to restrain violation of or enforce the provisions of the said acts.”

And by section 3 as follows: •

“ ‘Waters of this state,’ as used in this act and the act to which this is a supplement, shall include the ocean and its estuaries, all springs, •streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this state or subject to its jurisdiction.”

By section 8 of the amendatory act of 1900 (P. L. 1900 p. 113) it is provided as follows:

“It shall be unlawful for any person, corporation or municipality, after the. date specified in the notice provided for by the fifth section of this act. to permit or allow any sewage, or other polluting matter, to flow into said waters from any sewer, drain or sewerage system, under the control of said person, corporation or municipality, except under such •conditions as shall be approved by the state sewerage commission.”'

Subsequently, and by virtue of an act of the legislature approved April 16th, 1908 (P. L. 1908 p. OOB), the terms of- office of the several members of the state sewerage commission were terminated: and by another act approved on the same day (Ibid.) entitled

“A supplement to an act entitled ‘An act to prevent the pollution of the waters of this state by the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards, and prescribing, defining and regulating the powers and duties of such commission and such boards,’ approved March twenty-fourth, one thousand eight hundred and ninety-nine,”

all the powers and duties theretofore vested in and executed by the state sewerage commission were vested in, and were to be executed by, the board of health of the State of New Jersey, and it was therein further provided that nothing contained in that act should be held to abate or render invalid any notice or proceeding, or suit at law or in equity, which had been served,'begun or instituted by the state sewerage commission, prior to the date of the said act, but that the same should continue in full force and effect, and be further advanced and prosecuted in the name of the board of health of the State of New Jersey.

The town of Phillipsbui'g is located upon the east bank of the Delaware river, within the State of New Jersey, which river is numbered among the waters of this state used for potable purposes by its citizens, and is subject to the jurisdiction of this state, as will presently be shown.

The town of Phillipsbui'g was incorporated by an act of the legislature approved March 8th, 1861, by the name of “the inhabitants of the town of Phillipsbui'g.”

The state sewerage commission, prior to its abolition, investigated a complaint of pollution of the ivaters of the Delaware river by ihe flow of sewage and other polluting matter from the town of Phillipsbui'g, and found that the river was one of the waters of this state used for potable purposes by its citizens, and that those waters were being polluted by the town of Pbillipsburg in such manner as to cause, and threaten to cause, injury to the inhabitants of this state in their health, comfort and property by permitting sewage and other polluting matter to flow into the waters of the Delaware river from the seiverage systems and drains of the town, and therefore, on the 8th clay of October, 1906, the said state sewerage commission gave notice, in writing, to the town of Phillipsbui'g (which was duly served on the 13th day of October, 1906, on Joseph H. Firth, mayor of the town of Phillipsburg), directing and commanding that town to cease polluting the waters of the Delaware river by permitting sewage and other polluting matter to flow therein from the sewers and drains of the town, prior to the 1st day of October, 1907, being not more than five years from the date of the notice, and that before the date mentioned the town of Phillipsburg should make such disposal of its sewage and other polluting matter as should be approved by the state sewerage commission.

The town of Phillipsburg lias not appealed to the court of chancery from the notice to- cease from polluting the river from and after October 1st, 1906, nor had it, at the time of filing- the bill in this cause, ceased to pollute the Delaware, one of the potable waters of this state, nor prior to October 1st, 1907, made such disposal of its sewage and other polluting matter as should be approved by the state sewerage commission. And this situation continues.

The city of Trenton, and various other cities of this state, are now using the waters of the Delaware river for potable purposes, supplying the same to their citizens, inhabitants of Yew Jersey, who, by reason of the pollution of the waters of that river, as hereinabove set out, are suffering injury in their health, comfort and property, in that they are compelled to expend large sums of money to purify the waters of the Delaware for potable purposes, for the protection of their health, and to exercise .unusual precaution to protect themselves from risk' of disease .arising from pollution of those waters.

The bill prays that the town of Phillipsburg, by mandatory injunction, may be compelled to cease from polluting the waters of the DelaAvare river by permitting sewage and other polluting matter to flow therein from its sewerage system and drains, and to make such disposal of its sewage and other polluting matter as shall be approved by the board of health of the State of New Jersey, and for other and further relief.

The first defence leveled at the complainant’s proceedings is that the state board of health, while endeavoring, has not the power to enforce the notice of the state sewerage commissiofi of October 8th, 1906, requiring the town of Phillipsburg to cease polluting the waters of the Delaware by permitting sewage and other polluting matter to flow therein from its sewers and drains, prior to the 1st day oí October, 1907. The contention is that the attempt to transfer jurisdiction from the state sewerage commission to the state board of health was nugatory because not within the title of the supplement of April 16th, 1908. P. L. 1908 p. 60S.

With this contention I disagree. I concede that the complainant's right to maintain this suit must rest upon the validity of the act last mentioned, for, surely, if the state hoard of health was not authorized to abate the nuisance of the pollution of the Delaware river on September 34th, 1908, its hill filed on that day would not lie. The question, therefore, resolves itself into this: Could the legislature, by the supplement of April 16th, 1908 (P. L. 1908 p. 805), transfer from the state sewerage commission to the state board of health the right to enforce the provisions of the original act to which it was a supplement, and which original act clothed the state sewerage commission with the power sought to be enforced in this suit by the state hoard of health ? I think it could, and for this reason:

While the constitution, article 4, section 7, placifum 4, provides that “every law shall embrace hut one object, and that shall be expressed in the title,” it was held, in Onderdonk v. Plainfield, 42 N. J. Law 480, that “the leading subject of a statute should he fairly expressed in the title, but the means or instruments by which the general purpose is to be attained, or matters merely incidental to it, are not a necessary part of the title.”

Although the word “'subject” is substituted for “object” in the syllabus, “object” is the word intended, as appears from an examination of the opinion, and “object” is the language of the constitutional provision; hut this is quite immaterial as “subject” and “object,” with reference to this constitutional provision, have come to be regarded as synonymous. Sawter v. Schoenthal, 83 N. J. Law 499, 500, 501.

The act under consideration in Onderdonk v. Plainfield was entitled “An act to lay out and open streets in the township of North Plainfield, in the county of Somerset, and in the city of Plainfield, in the country of Union.” The act provided for its being carried into effect through the instrumentality of certain commissioners. This was in the body of the act, no mention of the commissioners — the instrumentality fox carrying out the act — being made in the title. The supreme court said (at p. 483) :

“It was, therefore, manifest to all that the object sought could only be gained through the creation of new instrumentalities, and the expression of a purpose of enabling streets to be laid out, necessarily implied the adoption of new machinery. These were merely incidental to the general object of the act.”

In Bumsted v. Govern, 47 N. J. Law 368, Mr. Justice Dixon, speaking for tire supreme court, said (at p. 373) :

“The constitutional provision is that 'every law shall embrace but one object/ and that shall be expressed in the title.
“It is not necessary to review the numerous decisions involving the application of this and similar clauses. It is, on all hands, agreed that its purpose is to require the title of a bill to be such as will inform the public and the members of the legislature of the object of the enactment, and that this purpose is accomplished when the title fairly indicates the general object, although-it does not indicate the means or methods of attaining this object.”

And again (on p. 374) :

“The question then is, whether this title was fairly adapted to apprise the public and the members of the legislature of the general object of the law. I think it clearly was. * * * That was the general object of the act, and that alone was necessary to be expressed in the title. Eor the particular method of reaching the end every one was legally bound to examine the body of the statute.”

To the same effect are State v. Town of Union, 33 N. J. Law 350; Johnson v. Asbury Park, 58 N. J. Law 604; Drew v. West Orange, 64 N. J. Law 481.

Wow, if it is only necessary to express the general object of a statute in its title, and that in expressing it it is not necessary to indicate the means or method of attaining that object, or name the instrumentality for carrying it out, then, surely, even if such minor or incidental matters are included in the title of a given statute, they cannot operate to deprive the legislature of its power to amend the given act, in reference to those minor and incidental matters, through amendments of, and supplements to, the original act, appropriately reciting that act’s title.

Let me illustrate: If the act under consideration had been entitled “An act to prevent the pollution of the waters of this state,” and stopped there, it would have been just as efficacious for the attainment of the legislative purpose as the title which was adopted, containing these superadded words:

“By the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards, and prescribing, defining and regulating the powers and duties of such commission and such boards.”

If the short title just suggested had been employed, and in the body of the act alone had provision been made for the instrumentality for carrying out the act, namely, the creation of the state sewerage commission, then, surely, that instrumentalit}1could have been changed by the abolition of that commission and the devolution of its powers upon the state hoard of health by an act which could have been entitled “A supplement to an act entitled eAn act to prevent the pollution of the waters of this state.’ ”

It is no answer to say that because the legislature chose to embrace in the title of the original act a description of the instrumentality through which its general purpose was to be carried out, that, therefore, in auy amendment, having for its object a change of that instrumentality, it would he necessary to express the particular change in the title of the amending act, because the instrumentality originally created was described in the original title; for this reason, and it is all sufficient, that no such trammel rests upon the legislature, unless it is to be found in a mandate of the constitution, and there is none such.

Anciently, statutes had no titles and the practice of prefixing them to acts of the English parliament probably commenced in the reign of Henry III. (State v. Town of Union, supra); and, doubtless, they might he omitted from legislative hills in this state but for the constitutional provision that the object of every act shall be expressed in its title.

A ease quite in point is that of Drew v. West Orange, supra. There the act, whose constitutionality was attacked, was entitled “An act authorizing the inhabitants of townships to purchase or erect a building for township purposes.” And Mr. Justice Dixon, speaking for the supremo court, said (64 N. J. Law, at p. 482):

“The Fecond objection is that the-title of the act docs not constitutionally express the object of the law, since the title states-that the inhabitants are to be authorized to purchase, &c., while-in the body of the act they are only empowered to authorize the township committee to purchase, &c. We think the object of the law is correctly expressed in the title, the feature of the act above adverted to merely pointing out the agency through which the-authority delegated to the inhabitants shall be exercised.”

In that case it will be observed the general object expressed in the title was to authorize the inhabitants of townships to acquire buildings for township purposes. In the title the inhabitants of the townships were the agency or instrumentality described as having power to make the acquisition. In the body of the act quite another agency or instrumentality was set up, namely, township committees, after authorization by the inhabitants of the townships. This title was held good because the supreme court did not regard the description of the- agency to carry oat the object of the act as necessary to be stated in the-title, and, it seems to me, held in effect that the agency might be-incorrectly described in the title, because, in that ease, the fair intendment of the language used in the title was to point out the inhabitants of townships (in their collective capacity in town meetings, doubtless) as the agency authorized to purchase or erect township buildings, when, in fact, in the body of the act, those agencies were only authorized to effectuate the object of the law by delegating authority to another instrumentality.

To sum it np: On this head of the argument I deduce the rule to be that when in an act of the legislature, which can constitutionally have but one object and that object must be expressed in the title, superaddod words are inserted in the title, describing instrumentalities and other minor or incidental matters, such words cannot operate to foreclose the legislature from afterwards amending the bodjr of the act in such a way as to affect those instrumentalities, minor and incidental matters, under and by a title which expressly amends the original act, appropriately reciting its title. In other words, because an act in its title expresses objects, minor and incidental to its general object, it cannot thereby raise those minor and incidental matters to the dignity and importance of the main object, so as to restrain and limit the legislature from dealing with that act by way of amendment or supplement relating to those minor and incidental matters unless they too be mentioned in the title of the later act, and thus create a constitutional restriction which does not, in fact, exist.

In this case, I think, I may pertiently paraphrase the remarks of Mr. Justice Swayze, speaking for the court of errors and appeals, in Sawter v. Schoenthal, supra (at p. 503), and say:

Everyone must, according to our legal maxim, be presumed to know that an act of the legislature constitutionally can have but one object, and that that object must be expressed, in its title, but that if minor and incidental matters are expressed in the title, they cannot be held to restrict the law-making body in legislating with reference to those minor or incidental matters in subsequent acts amending or supplementing the original act by • reference to its original title only without expressing in the title of the amending or supplementing act the change proposed to be made with reference to those minor and incidental matters. With this knowledge no one could help inferring that the object of the supplement of April 16th, 1908 (P. L. 1908 p. 605), was to probabty change some minor or incidental provision of the original act, and, possibly, the instrumentality through which it was to be enforced, although that object was not expressed in the title of the supplement.

Mr." Justice Swajcze goes on to remark that in the known state of the law with which he was dealing the title of the act tiren under consideration gave notice, not only of its immediate object clearly expressed, but of its ultimate object clearly implied. I cannot paraphrase this observation in the case at. bar for want of analogous facts, nor is it necessary. A supplement in a certain sense gives no intimation of its object. It is expressed to be a supplement to the original act, reciting the title of that act. The only notice contained in the title of a supplement is, that something germane to the original act is therein enacted. Now, as we have seen in Drew v. West Orange, the title of an original act may incorrectly describe a minor or incidental matter contained in the body of the act, namely, the instrumentality through which the act itself is to be effectuated and carried out. By analogy, the original act “to prevent the pollution of the waters of this state by the establishment of a state sewerage commission,” &c., might as lawfully have' provided for the carrying out of the object of the act, namely, ilie prevention of pollution, by making the state board of health the instrumentality for carrying it out, instead of the state sewerage.commission, although the state sewerage commission and not the state board of health was mentioned in the title, at least so fár as any constitutional requirement is concerned. The general" object of the act (to prevent pollution of the waters Of the state) being expressed in the title — the language in the title pointing out the agency through, which the delegated authority should be exercised, expressing ’ something merely incidental; was unnecessary, and, although expressed in' the title, its presence there could not control or restrict the enacting clauses. 'Again, the general object of the act being "expressed in the title, namely, to prevent the pollution of the waters of this state, áll persons interested in that subject "would be obliged to look at the enacting clauses to see what provisions were made for carrying the act into effect (quite ¿side from the instrumentality created), 'and it could make no difference to "them if'they found that the legislature had, in "the body of the act', 'departed from its gratuitously expressed intention with reference to' thé instrumentality for effectuating' its objects as expressed in the title — that being minor and incidental to thé general and paramount object, which was, I 'repeat, the prevention of the pollution of the waters of this state, rio' matter how — and they would be charged with knowledge, too, even if they did not look into the act, that the legislature might make such departure from expressed intention be+wcen. title and enacting clauses, in a minor matter — one not referable to the general object, or at least not necesmrüy involved in it.

Holding, as I do, that the supplement of April 16th, 1908, is valid and efficacious to transfer from the state sewerage commission to the state board of health the right to enforce the provisions of the original act to prevent the pollution of the waters -of this state, it is unnecessary to decide whether the act approved. April 17th, 1909 (P. L. 1909 p. 215), to change and amend the title and body of the supplement of April 16th, 1908, which act of 1909 also vests in the state board of health the powers and duties theretofore vosled in the state sewerage commission, constitutionally effected the change contended for by the complainant. For the same reason it is unnecessary to decide whether the same result was accomplished by the act of April 1st, 1913 (P. L. 1912 p. 51fl), to also amend the title of the original act so that the same shall indicate the object of the •act to vest in the state board of health all the powers and duties theretofore exercised by the state sewerage commission. It 'would seem that these last-mentioned acts of 1909 and 1913 were passed because of some doubt as to the validity of the title of the supplement of 1908 so far forth as changing the instrumentality to enforce the principal object of the original act was -concerned. Whether so or not, I think the doubts, if they existed, were illusory; but, if not, the transfer of power by one or the other, or both, of these acts (1909 and 1913) may be saved upon the doctrine enunciated by the court of errors and appeals in Sawter v. Schoenthal, supra, but that question, also,, it is unnecessary to decide.

The defendant contends that, quite irrespective of the question just considered, the complainant is impotent to enforce tire ■statute against it because the legislation in question does not ■extend to and comprehend the Delaware river. The act, as has been observed, is “one to prevent the pollution of the waters of this state.” These words are in the title and body of the act. In the supplement of 1907 (P. L. W'07 p. 360), giving authority to bring an injunction suit, it is provided in section 3:

“ ‘Waters of this state,’ as used in this act and the act to which this is a supplement, shall include the ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this state or subject to its jurisdiction.”

Chancellor Runyon held in Attorney-General v. Delaware and Bound Brook Railroad Co., 27 N. J. Eq. 1:

“The Delaware river became, by conquest, the boundary between the States of New Jersey ánd Pennsylvania; and being-such, and the original property being in neither of them, and there being no convention between them in regard to it, when, in 1783, the King of Great Britain relinquished all claims to government, propriety and territorial rights in the United States, each state, by the rule of international law, had dominion to the middle of the stream.”

And also:

“New Jersey has no jus privatum in the soil of the Delaware river above tidewater — that is, in the riparian owners, subject to the public easement of navigation, and to such regulations by the legislature of the waters as the public right of navigation may require. As to the jurisdiction and power of the state over it, the river above tidewater is to be regarded as a navigab Je stream.”

This is a direct decision, to the effect that New Jersey controls the Delaware river to the middle of that stream. This ease was affirmed by the court of errors and appeals (Ibid'. >681), the third syllabus laying it down that:

“The bed of the Delaware river above tidewater, from the easterly bank ad fthim medmrn aquas, passed by the grant from Charles II.,. to the Duke of York, dated March 12th, 1664, and is private property.”

And in the opinion, Mr. Justice Dixon, speaking for that court, said (at p. '&4-1) :

“Of this class, then, is the Delaware river above the tide; the title to the bed is in the private owner, but is subject to the paramount public right to use the river as a common highway, in which is included the right to so control and change the bed as to preserve and improve the navigability of the water.”

If, then, while the title to the bed of the Delaware river above tidewater is in the private riparian owners, subject to the paramount public right of user, that use can as well be directed toward purification of the stream as to control for the purpose of navigation.

Wilson, Attorney-General, v. Hudson County Water Co., 76 N. J. Eq. 543, was a case dealing with the state’s ownership of land lying under tidewater, but holds, upon authority, that this ownership extends to arms of the sea within its boundaries and to the centre of waters which are the boundary line between this state and New York. Ibid. Slfl. It, of course, follows, that where this state does not own, but controls, waters within its boundaries, as in the case of ñon-tidal waters, that control extends ad filum medium aqua to ail waters dividing this from any other state. And such is the situation at Phillipsburg within this state, situate as it is on the east bank of the Delaware river above tidewater. This holding is not inconsistent with any of the provisions of the compact of 1783 between the States of New Jersey and Pennsylvania settling jurisdiction over the Delaware river. • Comp. Stat. p. S86S. It was expressly decided by this court in Attorney-General v. Delaware and Bound Brook Railroad Co., supra, that the objects and purposes of the compact were merely to secure the administration of justice and the use of the river as a public'highway, the provisions for concurrent jurisdiction having reference to the former only and were a mere police regulation. This holding was in nowise modified in the court of errors and appeals. See S. C., 681:

The language of Chancellor Runyon on this particular question, in the Delaware wild Bound Brook Railroad Case, is so illuminative and dispositive of it, that 1 feel justified in quoting from his remarks at some length. He said (27 N. J. Eq., at p. 12 et seq.):

“In 1817, differences arose between the states in regard to wingdams and obstructions placed in the river on the New Jersey side by riparian owners, of which Pennsylvania complained on the ground that they were injurious to the navigation. The’ report of a committee of the general assembly of this state to that body on the subject, is evidence of the construction which had been put upon the compact of 1783. ■ It was presented by the. chairman, Isaac H. Williamson, -and it' distinctly asserts the right of each state to authorize, without the concurrence of the other, the erection of mills and wingdams on its own shores, and within its own jurisdiction, not injurious to navigation. Min. Assern. 1817. And still further, the commissioners appointed by this state to settle, in conjunction with those appointed by Pennsylvania, the differences above mentioned, were William S. Pennington, David Thompson and Elliot Tucker. In their first written communication, dated September 15th, 1817, to the commissioners of Pennsylvania, they say:

“ ‘It appears to us that the respective legislatures of Pennsylvania and New Jersey, notwithstanding the agreement of 1783, have a right to give their assent to, and to regulate by law, the erection, on their respective shores, of all useful piers, docks, wharves, banks, and even milldams, or other buildings for the beneficial use of the respective shores; but that in the exercise of this authority they are bound, as well by public law as by the agreement of 17S3, to preserve the navigation of the river. We consider the agreement of 1783 nothing more than a declaration that the river Delaware, within the limits prescribed, then was, and should continue to be, a public navigable river, in contradistinction to a private river, and that it must be subject to the same law as all other public navigable rivers that are deemed public highways. We apprehend it to be a mistaken opinipn, however extensively it may have spread itself, that the whole bed of the river is sacred, and cannot be touched without a violation of the rights of the state we represent. The soil of the river to the midway thereof, at least at and above the falls of Trenton, if not below, is vested by law in the owners of the adjoining land. It is true the same principle of law that vests this private right in the owners of the adjacent soil, also vests in the public the rights of unobstructed navigation. We admit that this private right must be so exercised as not to injure the public right of navigation. It is not every erection on the bed of the river that becomes a nuisance, and is to be construed as a violation of the agreement of 1783; if this was the case, all the piers and docks erected in the river must be destroyed. Docks and wharves judiciously placed on the river are useful to commerce; in which case they are innocent and lawful erections. But, should they become so far extended as to obstruct navigation, they would become public nuisances, be unlawful, and liable to prostration. We apply the same reasoning to milldams, and other erections on the river. Their lawfulness or unlawfulness depends on the fact whether they are or are not obstructions to navigation. We have been more particular in disclosing our opinions on this head, that we might, at one view, enable you to understand the reasoning that led to certain legislative acts of New Jersey relative to wingdams.’

“The commissioners close a subsequent communication to the commissioners of Pennsylvania, dated September 17th, 1817, as follows:

“ ‘Whether the English doctrine, conferring the bed of the river to the middle thereof, on the owners of the adjacent soil, is adopted in this country or not, is a question wholly immaterial in the present inquiry. Whether it is in the owners of the adjoining land, the representatives of the original proprietors, or the state, is a question to be settled in each state by the laws thereof, and has no bearing on the subject under investigation. It is sufficient that it is in one or another of them. We contend that the agreement of 1783 did not touch the soil, but was confined to questions of jurisdiction and navigation, and that the bed of the Delaware river to the midway thereof, from the first settlement of the country to this hour, has belonged to the State of New Jersey, or some of the citizens thereof, and that the Commonwealth of Pennsylvania never had, and, as we believe, never pretended to have any title thereto.’

“It appears from these public documents, which respectively have the sanction of two eminent names of the past generation, the first, Governor Pennington and Governor Williamson, that thirty-five years after the making of the compact, the theory of joint ownership of the river was not entertained by this state, and was not regarded as an implication from the compact. It has never been recognized since tiren. The act of March 1st, 1820, to 'prevent obstructions to the navigation of the river Delaware’ (Rev. L. p. 708), cited in support of it, does not recognize it. The objects and purposes of the compact were merely to secure the administration of justice and to secure to the contracting parties the use of the river as a public highway. The provision for concurrent jurisdiction had reference to the former only. It was a police regulation merely, and gave to neither of the states any dominion or authority whatever over, or right in, or control of, that part of the soil of the river which, by the law of nations, belonged to the other. The construction put by the court of appeals of New York, in People v. Central Railroad Co. of New Jersey, 42 N. Y. 283, upon the compact made in 1833 between this state and the State of New York (Nix. Dig. p. 965), is in point. By the third article of that compact it was declared that How York should have and enjoy exclusive jurisdiction of and over all the waters of Hudson river lying west of Manhattan Island, and to the south of the mouth of Spuytenduyvel creek, and of and over the lands covered by the said waters, to the low-water mark on the westerly or New Jersey side thereof, subject to certain designated rights of property and jurisdiction of New Jersey, among which was the exclusive right of property in the land under water lying west of the middle of the bay of New York, and west of the middle of that part of Hudson river which lies between Manhattan Island and New Jersey, and exclusive jurisdiction of and over the wharves, docks and improvements made, or to be made, on the shores of this state, and of and over all vessels aground on the shore, or fastened to any such wharf or dock, except that such vessels were to be subject to the quarantine or health laws of New York. The suit was brought by the attorney-general, in behalf of the state, to abate as nuisances, and cause the removal of certain wharves, bulkheads, piers and railroad tracks, and other erections which the defendants had placed in the harbor of New York, and extending’into the harbor and the Hudson river about a mile from the New Jersey shore. The complaint claimed that the erections were within the limits and jurisdiction of New York, and were an obstruction to navigation, and injurious to the public health, and were constructed without lawful authority. They were all placed on the west of the designated boundary line. It was held that the jurisdiction conferred upon New York over the waters of the river and bay was a qualified and limited jurisdiction, for police and sanitary purposes, and to promote the interests of commerce in the use and navigation of those waters, and was not designed to confer or create control over the lands or domains of New Jersey or to give to New York any right to interfere with the complete political or governmental jurisdiction of this state, as a sovereign state, of and over her. own soil, and its appurtenances and of and over every description of property of any appreciable value, within her territorial limits.

“The appositeness of the conclusion expressed in that case to the case now under consideration will be all .the more noticeable when it is observed that by the compact just referred to, excltusive jurisdiction was given to New York, not only over the waters, hut over the lands covered hy the waters, while, by the compact with Pennsylvania, concurrent jurisdiction is given to the contracting parties, and such jurisdiction is expressly confiyied to the waters.

“The compact of March 28th, 1785, between Maryland and Virginia, among other things, provides that the Potomac river shall be considered as a common highway for the purposes of navigation and commerce to the citizens of those states, and of the United States, and to all other persons in amity with Maryland and Virginia, trading to or from either of those states; and it establishes concurrent legislation; also for the preservation of fish, and for the performance of quarantine, and keeping open the channel and navigation by preventing the throwing out of ballast, or making any other obstruction. Laws of Md. 1785 ch. 1. It has been held that the compact was confined exclusively to matters of jurisdiction and navigation, and left the territorial rights of the parties to it untouched. Binney’s Case, 2 Bland 99, 126, 127.

"The compact of 1783 gives no jurisdiction to Pennsylvania over the soil of the Delaware within the territorial limits of this state, nor does it confer on her any right therein.”

As power to conserve the potable waters of the river Delaware by legislation, enforceable on, in and under the waters flowing within the boundary and subject to the jurisdiction of the State of New Jersey, was not included in the enumeration of rights to be exercised conjointly by the States of New Jersey and Pennsylvania in the compact of 1783, that power was retained by this state by as clear an implication as though it was, by express language, so reserved in the pact.

It is idle for the defendant to ask of what avail it would be to stop the town of Phillipsburg from discharging its sewage in the Delaware;, when the sewage of the city, of Easton opposite, and the polluting flow of the Lehigh, are discharged into the same stream in the same locality.

Vice-Chancellor Stevens said, in construing a similar statute, in State Board of Health v. Diamond Mills Paper Co., 63 N. J. Eq. 111 (at p. 117):

"The language -here used is plain and unambiguous. The prohibition is against placing in the water of the river anywhere above the point from which the city obtains its supply any factory refuse--which will either impair, or tend to impair, its quality.
"If, at the place of discharge, the factory refuse put into the river impairs it, or even tends to impair it, the prohibited, act is done.”

And I said, when vice-chancellor, in State v. Town of Phillipsburg, post p. 422.

“Because Easton is polluting the river much more than Phillipsburg (which is regrettable) is no ground for denying an injunction, even if issuance of the writ would be ‘futile or inequitable/ as claimed by the defendant. The act in question has been construed m this court and held to extend to a case of refuse which will impair, or tend to impair, the quality of the water.” Citing State Board of Health v. Diamond Mills Paper Co., supra.

The authority given to the state sewerage _ commission (now vested in the state board of health) in the act which is being pursued in this case, authorizes the board, if it finds that any of the waters of this state are being polluted in such manner as to cause or threaten injury to any of the inhabitants of this state either in health, comfort or property, to apply (after certain preliminary proceedings) to this court for an injunction to prevent violation or to enforce the provisions of the act.

So that, as in the statute under consideration in the Diamond Mills Paper Co. Case, the injury need not, be actual, but only threatened. In that case the inhibited act was pollution by refuse which would “impair, or tend to impair, the quality of the water,” and in this case it is, if any of the waters of this state “are being polluted in such manner as to cause or threaten injury to any of the inhabitants.” Under neither act does actual injury have to be demonstrated.

A word as to the facts: The waters of the Delaware river are used by the inhabitants of this state for potable purposes, and this is so with reference to the supply of drinking water at Trenton. Voluminous testimony was taken, and to my mind it conclusively shows that if the waters of the Delaware river at Trenton are not polluted by infusion of sewage at Phillipsburg in such manner as to cause injury to the inhabitants of Trenton, at least injury to those inhabitants is threatened from that pollution, and, therefore, the ease, on the facts, is brought directly within the purview of the statute.

The result reached is that a mandatory injunction must issue in accordance with the prayer of the hill, to compel the town of Phillipsburg to cease its unlawful act of polluting the waters of the Delaware liver by permitting sewage and other polluting matter to IIoav therein from its seiverage systems and drains, and to make such disposal thereof as shall be approved by the state board of health.


author: Walker, Y. C.

text:
    The State of New Jersey, at the relation of the board of health of the State of New Jersey, v. The Inhabitants of the Town of Phillipsburg.
    [Decided January 30th, 1909.]
    Every municipality having a public sewer or system of sewers, drain or system of drains, legally constructed at the date of the passage of “An act to secure the purity of the public supplies of potable waters in this state,” approved March 17th, 1899 (P. L. 1899 p. 73), is, under the first proviso of the first section, exempt from the provisions of the enacting-clause, and, therefore, is exempt from the provision against dumping refuse on the bank of a river, as well as from the provision against discharging sewage into it, — the clearly expressed legislative intention being to exempt such municipalities from all the provisions oi the act.
    On bill for injunction. On application for preliminary injunction. Heard on bill and affidavits.

      Mr. Nelson B. Gashill, assistant attorney-general, for the complainant.

      Mr. John I. Blair Reiley, for the defendant.
   Walker, Y. C.

The bill alleges that the toivn of Phillipsburg maintains on the easterly bank of the Delaivare river two garbage dumps, one of which is located at the southerly extremity of the town at the juncture of Lopatcong creek and the river, and the other at the northerly end of the town, on which dumps the municipal authorities place and deposit, and suffer to be placed and deposited, and suffer to remain, domestic and factory refuse, consisting’ of ashes, decayed vegetables, house rubbish of all kinds, tin cans, old clothes, discarded shoes, broken barrels, glass bottles, and in fact everything which might be considered as domestic and factory refuse, which refuse;, in normal times by reason of the natural slope of the ground at the two dumps will, and does, find its way into the waters of the river, and in case of freshets is washed directly into the waters of the river; that the city of Trenton now is and for some lime past has been supplying its inhabitants with water for domestic use and obtains its public supply of water from the Delaware • river below the town of Phillipsburg; that by reason of the refuse so placed and suffered to remain on the banks of the river at Phillipsburg, and the finding of its way into the waters of the river, those waters are greatly polluted, and the refuse so placed and suffered to remain on the banks of the river and finding its way into the waters of the river tends to corrupt and impair, and in fact does corrupt and impair, the quality of the water, and tends to render, and in fact does render, such waters injurious to health, and tends to pollute, and in fact does pollute, the public supply of water for domestic use in the city of Trenton; that these acts are directly within and subject to the provisions of an act of the legislature entitled “An act to secure the purity of the public supplies of potable waters in this state,” approved March 16th, 1899 (P. L. 1899 ¶- 78), and that tire town of Phillipsburg in operating and maintaining the dumps directly violates the provisions of the act.

The.defendant does not deny the maintenance of the dumps in question, but contends that no factory refuse but only domestic and store refuse is deposited thereon; that because the town of Phillipsburg has a public sewer system constructed under municipal authority discharging its drainage and sewage into the river, it is within the first proviso of the act, and is therefore not liable to be enjoined in this suit; further, that it would be futile and inequitable to enjoin the town from using the dumps while the refuse of the city of Easton, Pennsylvania, just across the river, having a population of about three times that of the town of Phillipsburg, is being dumped into the channel of the Delaware by boats and from wagons driven out upon the bridge which connects Easton and Phillipsburg.

The act of the legislature under which the bill was filed (P. L. 1899 p. 78) provides, among other things, in its first section, that no sewage, drainage, domestic or factory refuse, excremental or other polluting matter of any kind whatsoever which, either by itself or in connection with other matter, will corrupt or impair, or tend to corrupt or impair, the quality of the waters of any river, brook, stream or other reservoir from which is taken or may be taken any public supply of water for domestic use in any city or other municipality of this state, or which will render, or tend to render, such waters injurious to health, shall he placed in or discharged into the waters of any such river or other reservoir above the point from which any city or other municipality shall or may obtain its supply of water for domestic use;, nor shall any sucli sewage, drainage, domestic or factory refuse, excremental or other polluting matter, be placed or suffered to remain on the banks of any such ri ver or other reservoir above such point. The proviso under which it is claimed the town of Phillipsburg is exempt, enacts that the provisions mentioned shall not be held to apply to any city or other municipality of the state which, at the date of the passage of the act, had a public sewer or system of sewers, drain or system of drains, legally constructed under municipal authority, discharging its drainage or sewage into any such river or other reservoir. The public, sewerage system of the town of Phillipsburg was, in fact, constructed under proper authority prior to the passage of the act.

The attorney-general argues that the proviso is not a shield to the town, and that it extends no further than to permit of tire maintenance of the sewerage system which was lawfully constructed before the passage of the act, and that the proviso was plainly intended to preserve the usefulness and legality of a sewerage system which could not lawfully he constructed in the face of the statute, and that, as the proviso is only meant to protect an established system of sewers and drains, legally constructed under municipal authority, it is not intended to permit a municipal corporation, which has such a system, to place, or suffer to remain, upon the banks ol a river, domestic or factory refuse, excremental or other polluting matter which, either by itself or in connection with other matter, will corrupt or impair, or tend to corrupt or impair, the quality of the water in such river for potable purposes; and he contends that the only rational way to read the proviso, as it mentions only sewage and drainage, is, that it does not affect deleterious matter dumped on the river bank, which it does not mention.

I am unable to adopt the construction contended for by the attorney-general. The enacting clause provides that no deleterious matter shall be discharged into the waters of a river used for potable purposes, and that no polluting matter shall be placed or suffered to remain upon the banks of such river. It is plausibly, but not convineingty, argued that as the proviso excepts from the operation of the enacting clause municipalities having a public system of sewers, legally constructed, the only exception intended is as to a sewerage system, because it would be unjust to have authorized a municipality to expend its money in the construction of a sewer emptying into a river, and to now require that sewer to be closed and discontinued, thereby casting large and unnecessary expenses upon a given municipality, and perhaps breeding pestilence therein by the forcible discontinuance of such a public necessity as a system of sewers. But it is to be observed in this connection that the act in question does not provide that where there is an existing sewerage system, that another method of sewage disposal shall be adopted by the municipality and then the existing system discontinued. On the contrary, the only provision is one whereby it is rendered impossible for municipalities thereafter to lawfully build such sewerage -systems. And it is urged that all that is intended to be protected by the proviso is an existing sewerage system, and that the additional pollution of the water resulting from the dumping of deleterious matter on the river banks is prohibited without qualification.

To this I am unable to assent. There is nothing ambiguous about the proviso. Its language is as plain as it is general. It is that the act

“shall not be held to apply to any * * * municipality * * * which * * * has a public sewer or system of sewers * * * legally constructed * * * discharging its drainage or sewage into any such river.”

The statute is penal in character, and, doubtless, remedial also. The section authorizing the state hoard of health, instead of proceeding to recover the penalty prescribed for violation of the act, to file a bill in chancery in the name of the state on the relation of such board for an injunction to prohibit further violation, appears to be remedial. The general rule for the construction of provisos in statutes is that they are strictly construed and take no case out of the enacting clause which does not fall fairly within their terms; but in penal statutes the provisos must be liberally construed. And this, subject to the cardinal rule that the court must, if it can, give effect to the legislative intent to be gathered from the whole act. 26 Am. & Eng. Encycl. L. 680.

In Van Reipen v. Jersey City, 58 N. J. Law 262, the supreme court said (at p. £67) : “The proviso of an act is sometimes resorted to for the interpretation of ambiguous or doubtful language in the enacting clause, but there is nothing ambiguous or doubtful for interpretation in this case.” So, in the case in hand, there'is nothing ambiguous or doubtful either in the enacting clause or in the proviso.

Regarded either as a remedial statute, in which case the proviso is to be strictly construed, or as a penal act, in which case it is to be liberally construed, the defendant prevails, because there is no ambiguity discoverable in the enactment, the clearly expressed legislative intention being to except from all the provisions of the act such municipalities as had sewerage and drainage systems at the time of its approval. There is nothing to construe — nothing to interpret. The defendant is clearly within the exemption in the proviso.

If we were required to go outside of the words and look to the subject-matter as an aid in interpretation, it would be found to be at least, if not more, reasonable to say that the legislature intended to exce]ot municipalities having the required sewerage system from the provision against dumping upon the banks of a river as well as against sewering into it, because it would be more or less absurd to enjoin the dumping of deleterious matter upon the banks of a stream into which an unlimited quantity of filth could be discharged through the sewers. In other words, it seems reasonable that the legislature should have intended that in the case of municipalities lawfully discharging sewage into a river from a given area, and thereby polluting the stream, the same municipality, if it chose, might dump refuse upon the banks of the stream, for thereby its waters would doubtless not be any more effectually polluted. If a town is permitted to discharge its entire sewage into a river through a sewer system, it seems almost absurd to say that that may continue, but that the dumping of refuse upon the bank shall be prohibited because the refuse may find its way into the waters and corrupt, or tend to corrupt, them.

Because-Easton is polluting the river much more than Phillipsburg (which is regrettable) is no ground for denying an injunction, even if the issuance of the writ would be “futile or inequitable,” as claimed by the defendant. The act in question has been construed in this court and held to extend to a case of refuse which will impair, or tend to impair, the quality of the water. State Board of Health v. Diamond Mills Paper Co., 63 N. J. Eq. 111, 117. In this case the proviso is adverted to, but was not under review and was not- considered. It is not because an injunction would be futile, which I do not concede, but it is because the defendant, is saved by the proviso in the act that the injunction is denied.

If, in the general scheme upon which the state has entered for the purification of our potable waters, it is deemed necessary to prevent a municipality from dumping deleterious matter upon the bank of a river into which it may nevertheless discharge the sewage of its inhabitants numbering, as in the case in hand, several thousand people, the remedy lies with the legislature— the courts are powerless to extend it.