Sherwood v. Bergen-Hackensack Sanitary Sewer Authority

The question for decision is the constitutionality vel non of chapter 300 of the laws of 1945 (pages 852 to 881). Judge Leyden, sitting in a Supreme Court issue, held ubi supra, at page 56, that the act is special, and that as no notice had been given of an application to apply for the legislation as required by the constitution, the act was void. The present appeal challenges the propriety of that decision. We conclude that it should be affirmed, for reasons now to be stated.

The history of the legislation on this particular subject should properly be considered. The first act seems to have been passed in 1930 (chapter 144 of that year, Pamph. L., at p. 556). It is entitled "An act to create a sewerage district to be called Hackensack Valley Sewerage District, to authorize the appointment and define the powers and duties of the commissioners therefor, to provide a plan for the prevention of the pollution of the Hackensack river and its tributaries and to authorize the raising and expenditure and payment of moneys necessary for this purpose," and it provided for the creation of a sewerage district inclusive of all "the natural drainage area of the Hackensack river and its tributaries" between Newark Bay and the New Jersey-New York State line. This, as a glance at the map will show, included the whole drainage area of the Hackensack River in New Jersey, and under the jurisdiction thereof. It does not appear that that statute has ever been challenged. A later act of 1933 (Pamph. L., pp. 1024-1057) legislates further as regards the same territory, and provides for a "Sewerage Authority" to deal with it.

The controversy now before us seems to have originated in 1945, when by chapter 300 (Pamph. L., p. 852) the legislature reduced the area of the "sewerage district" by eliminating from it all territory lying in Hudson County; so that as so reduced, it is confined to Bergen County alone. The language of the 1945 act, so far as material, is: "All those municipalities now or hereafter existing, all or parts of which are situated and lie within the natural drainage area of the Hackensack River and its territories between the boundary lineof Hudson County and Bergen County (italics ours) and the boundary line between the State of New Jersey and the State of New York." Or to put it simply, such part of the drainage area of the Hackensack River in this state as lies within Bergen County.

The settled rule in this state is that "a law is special, in a constitutional sense, when by force of an inherent limitation it arbitrarily separates some persons, places, or things, from others upon which, but for such limitation, it would operate."Budd v. Hancock, 66 N.J.L. 133. That decision was in the Supreme Court, but is fully recognized in this court.Burlington v. Pennsylvania Railroad Co., 104 Id. 649, 654;Raymond v. Teaneck, 118 Id. 109, 112. Tested by that rule, it seems obvious enough that a statute undertaking to set up a drainage district for the Hackensack River and its tributaries, applicable to only one of the two counties drained by it, was properly held by Judge Leyden to contravene the constitutional requirements: and the judgment under review is accordingly affirmed.