trict,' approved March twenty-seventh, one thousand nine hundred and two, and for this purpose establishing therefor a district board of commissioners, defining its powers and duties and providing for the appointment, terms of office, duties and compensation of such commissioners, and further providing for the raising, collecting and expenditure of the necessary moneys." Its preamble recites that the Legislature has created and defined a sewerage district, embracing a large number of municipalities and parts of municipalities, in the counties of Passaic, Bergen, Hudson, and Essex, under the name of the Passaic Valley sewerage district; that the Passaic river and many streams flowing into it within said district are polluted by sewage and other deleterious matter to such extent that the health of the people residing in said district is seriously endangered; and that immediate relief therefrom is imperative; recites the previous appointment of commissioners to investigate methods and plans, and the adoption by them and report to the Legislature of a plan or method as already mentioned; and declares that in order to carry into effect such plan or method, with such modifications or additions thereto as shall hereafter be approved by said commissioners, it is necessary that further and greater power be given the said commissioners. It thereupon proceeds to provide by enactment for the continuance in office of the commissioners already appointed, and for the appointment of successors when their terms expire, or when vacancies otherwise occur. It constitutes these commissioners and their successors a body politic and corporate, with perpetual succession, under the name of Passaic Valley sewerage commissioners, with general corporate powers, and with specific power and authority to construct, maintain, and operate intercepting, main, trunk, and outlet sewers, with the necessary pipes, conduits, pumping works, and other appliances, for the purpose of taking up within the said district the sewage and offensive and deleterious matter which would or might otherwise pollute the streams and rivers in said district, and conveying the same to some proper place or places of deposit, discharge, or outfall in New York Bay, within the state of New Jersey, to be selected by the commissioners, there to be discharged. It approximately locates the place or places of discharge or outfall for such sewage, and authorizes the commissioners to establish within said district, when necessary, sewage disposal works. It requires that all work done and materials furnished in the prosecution of said work or works, the cost of which shall exceed $5,000, shall be let by contract to the lowest bidder after advertisement.

The act makes it the duty of all persons, corporations, and municipalities owning or controlling sewers or drains, within the limits of the district, which discharge directly or indirectly into the streams or rivers,

to cause the same to be connected with and to be discharged into the sewers constructed by the commissioners, and requires that all sewers and drains hereafter constructed by any person, corporation, or municipality within the district, which might otherwise discharge into the streams or rivers, shall be so constructed that the discharge therefrom shall be delivered into the drains or sewers provided by said commissioners, at the points and places to be designated by them; it being made the duty of the commissioners, in constructing intercepting or main sewers, to have them so constructed that connection therewith can be made at necessary or proper points.

The act provides that the main, intercepting, or trunk sewer to be constructed by the commissioners shall commence at or near the valley of Rocks, in the city of Paterson, and shall extend to the point of discharge or outfall in New York Bay, within the limits of the state of New Jersey. It requires that, before any moneys are expended or obligations incurred for the construction of any trunk or outlet sewer which shall discharge into New York Bay, the commissioners shall investigate whether such discharge is likely to pollute the waters of that bay, within the Jurisdiction of the state of New York, to such extent as to cause a nuisance to persons or property within that state, and shall present the result of such investigation to the Governor, with their opinion thereon, whereupon the same is to be considered by the Governor and the Attorney General, and no work is to be done or further proceedings taken unless the Attorney General shall, in writing, advise that no cause of action, either for damages or an injunction, will arise in favor of the state of New York or any of its inhabitants by reason of such discharge of sewage into the waters of New York Bay, and the Governor shall, by order in writing, advise said board that, in his judgment, it is safe and prudent to proceed with its work; due regard being had to all the risks and dangers of injunctive litigation.

It may be mentioned, in passing, that the return made to the writ of certiorari herein shows that these conditions have been complied with; and by stipulation of the parties it is made to appear that "the question of pollution or the extent of pollution by the sewerage commissioners through their proposed construction in the waters of New York Bay is not at issue."

The act further provides that the sewerage commissioners shall have power and authority to purchase and acquire lands and rights or interests in lands within or without the sewerage district, for the construction of sewers, drains, disposal, pumping, or other works authorized by the act, with power to condemn in case of disagreement with the owners. The commissioners are authorized to construct any sewer or drain under or over any water course, under or over

or across or along any street, turnpike, railway, canal, highway, or other way, and in or upon private or public lands, and upon lands of this state and under waters of this state, and to enter upon and dig up any street, road, highway, or private or public lands, either within or without the sewerage district, for the purpose constructing, maintaining, and operating sewers or drains upon or beneath the surface thereof. They are also given power to alter water courses, and, with the consent of the municipal authorities, to alter or change the grade or location of any highway, public street, or way crossed by any sewer or drain to be constructed under the provisions of the act. The commis

sioners are required to keep full and accurate accounts of their receipts, disbursements, and liabilities, reporting annually to the Secretary of State and to the clerk of each municipality within the district.

The act declares in its eleventh section that in order to provide for the payment of costs and expenses incurred or to be incurred by the commissioners for the purchase of lands and other property, and for the construction of its works, and expenses connected therewith, the commissioners shall have power from time to time to issue corporate bonds in an amount not exceeding $9,000,000, and not exceeding the total estimated cost and expenses of the whole work; the bonds to run not exceeding 50 years from date, and to be otherwise in such form and payable at such time and place as the commissioners may determine, bearing interest not exceeding 4 per centum per annum. By the same section the commissioners are required to keep the cost and expense of the construction of its plant separate from the cost and expense of maintenance, operation, and repairs. Section 12 (page 786) authorizes them to issue temporary certificates of indebtedness, to be retired from the proceeds of bonds when issued, and to provide a sinking fund to be raised from year to year, in the same manner as moneys necessary to pay the interest on the bonds are to be raised. By section 13 it is declared that all indebtedness of the commissioners incurred pursuant to the provisions of the act, with the interest thereon, shall be a charge upon all persons and property in the municipal or taxing districts lying in whole or in part within said sewerage district, as fully as the Legislature shall have power to authorize the

same.

By section 14 (page 787) the commissioners are required, on or before the 15th day of June in each year, to ascertain and determine the money necessary to be raised for the payment of interest upon bonds and other indebtedness, and for sinking-fund charges, and to apportion the same among the respective municipalities and taxing districts lying in whole or in part within the sewerage district, in such proportion as the taxable ratables within so much of said

municipality or taxing district as is embraced within the sewerage district bears to the total amount of taxable ratables within the whole sewerage district as returned and certified by the respective taxing boards and taxing officers of said municipalities or taxing districts for the preceding year, provided that all ratables in the district for this purpose shall be assessed at their true value; and it is made the duty of each assessor, taxing board, or taxing officer for the several municipalities and taxing districts lying in whole or in part within said sewerage district for this purpose to compute, determine, and certify to the sewerage board annually, by the 1st day of April, the amount of taxable property or ratables within so much of the several municipalities and taxing districts as lie within the sewerage district. By section 15 (page 788) the commissioners are required annually, on or before the 15th day of June, to ascertain and determine the amount of money necessary to be raised for operating, maintaining, and repairing the works and plant for the current fiscal year, and to apportion the money so estimated to be necessary among the several municipalities or taxing districts lying in whole or in part within the sewerage district, according to the amount of sewage by them respectively delivered to or discharged into any sewers or other receptacles provided or constructed by the commissioners for the reception thereof. The commissioners are to grant a hearing to the several municipalities upon the question of this apportionment, and the apportionment, when made by the commissioners, is declared to be final and, conclusive; provision being made at the same time for adjustment of any deficiencies and excesses in the annual estimates by adding or deducting the same in making up the estimates for the following year.

By section 16 (page 789) the commissioners are required, on or before the 20th day of June in each year, to order and cause a tax to be levied and assessed upon all persons and property within each of the municipalities and taxing districts lying in whole or in part within the sewerage district, for the purpose of raising the money necessary to pay interest and sinking-fund charges, and to provide for the proper maintenance and operation of the works and plant, and for all other expenses of the commissioners; and to this end the commissioners are to certify to the tax assessor, taxing board, or taxing officer of each municipality or taxing district lying within the sewerage district the amount of tax required to be levied, assessed, and raised in each of the respective municipalities and taxing districts; and the assessors, taxing boards, and taxing officers are required to assess these sums upon all the persons and property within their respective municipalities or taxing districts, liable to be assessed for state or county taxes, and the tax is to be levied, assessed, and

collected by the same officers, at the same time, and in the same manner, and with the same effect, as state or county taxes are required to be levied, assessed, and collected; and the taxes so levied upon real estate are to be and remain a first and paramount lien thereon until paid. By section 17 (page 790) it is made the duty of the disbursing officer of each municipality or taxing district, out of the first moneys collected, and not required by law to be paid to the county collector for state or county purposes, to pay to the treasurer of the sewerage commissioners the moneys directed by the commissioners to be assessed, levied, and collected in such municipality or sewerage district. By section 18 the commissioners are authorized to borrow money in anticipation of tax

es.

By section 19 (page 790) in case the streams and rivers within the said sewerage district are polluted by sewage or other deleterious matter discharged therein directly or indirectly from any municipality lying without the district, contracts are authorized to be made between such municipalities and the board of commissioners for the disposal of such sewage and other deleterious matters, and the commissioners are authorized to make provision for such disposal in the construction of their works. Such municipalities are authorized to raise the agreed annual consideration payable for this privilege by tax, and the moneys received by the commissioners under such contracts are to be applied, two-thirds to the payment of interest upon their bonds, and one-third to the payment of the expense of operation, maintenance, and repair of the works.

By section 20 the sewerage commissioners are given power within the sewerage district, exclusive of all other boards, to protect the rivers and streams from pollution, and to prevent the pollution of the same, and for this purpose to prohibit the discharge of sewage and other polluting matters into the rivers and streams, and to apply by bill or petition to the court of chancery for relief by injunction.

This outline of the provisions of the act may be concluded with the mention that its twenty-third section (page 792) declares that in case, for any reason, any section or any provision of the act shall be held to be unconstitutional or invalid, the same shall not be held to affect any other section or provision of the act.

The first ground assigned by the prosecutors for setting aside the proceedings under review is that chapter 48 of the Laws of 1902, whereby the Passaic Valley sewerage district was created (P. L. 1902, p. 190), is unconstitutional, because it is a local and special law regulating the internal affairs of towns and counties. This objection was not pressed in argument, and, in our opinion, is unsubstantial. The act contains no regulative provisions whatsoever, beyond

a declaration that the district shall be entitled to all of the authority and subject to all the laws concerning sewerage districts so created. This amounts to no more than an expression of the purpose for which the district was delimited, and does not of its own force establish any regulation for its government. Even as to municipal corporations (the district, as we shall see, is not such), the Constitution does not require that their creation shall be by general laws-a point that, after remaining undetermined for some time (Pell v. Newark, 40 N. J. Law, 71, 77, 29 Am. Rep. 266, in error 40 N. J. Law, 550, 553, 555; Long Branch v. Sloane, 49 N. J. Law, 356, 362, 8 Atl. 101; Dempsey v. Newark, 53 N. J. Law, 4, 11, 20 Atl. 886, 10 L. R. A. 700; State v. Borough of Clayton, 53 N. J. Law, 277, 279, 21 Atl. 1026; Lakewood v. Brick, 55 N. J. Law, 275, 277, 26 Atl. 91; Glen Ridge v. Stout, 58 N. J. Law, 598, 33 Atl. 858), was set at rest, so far as this court is concerned, by Miller v. Greenwalt, 64 N. J. Law, 197, 44 Atl. 880. And in Riccio v. Hoboken (N. J. Err. & App.) 55 Atl. 1109, 1114, 63 L. R. A. 485, it was said in the Court of Errors and Appeals: "We are not prepared to say that the Legislature may not by special act create a school district, just as they create new municipalities, by the delimitation of a specified portion of the area of the state for that purpose." The practice of establishing boroughs by special acts of incorporation has been followed by the Legislature since the enactment of the general borough law of 1897 (P. L. 1897, p. 285). It is, indeed, quite obvious that any course of procedure, be it by legislative enactment or otherwise, that has as its end and object the setting apart of any portion of the state's territory from the remaining portions thereof for any governmental purpose, must in the last analysis be specific, and in that sense special and local. Even though some tribunal subordinate to the Legislature be established by general law for the determination of the boundary lines of a new municipality or other governmental division, the delegated power must be specifically exercised in every given instance. Thus the power given to township committees to divide the township into districts for certain local purposes, where authorized by the Legislature, eventuates, when exercised, in a specific, and in that sense special and local, act establishing a municipality or quasi municipality. Such a legislative delegation of power was declared constitutional by the Court of Errors and Appeals in Allison v. Corker, 67 N. J. Law, 596, 604, 52 Atl. 362, 60 L. R. A. 564. What may thus be done under a power delegated by the Legislature may, of course, be done by the Legislature itself. We therefore have no doubt of the constitutionality of chapter 48 of the Laws of 1902, which establishes the Passaic Valley sewerage district.

Were we of a different opinion upon this

point, it would make no difference in the result. The geographical district would be recognized (Mortland v. Christian, 52 N. J. Law, 521, 20 Atl. 673; Van Vane v. Centre Township, 67 N. J. Law, 587, 589, 52 Atl. 359), and the case must still turn upon the constitutionality of the act of April 22, 1903 (P. L. 1903, p. 777), whose provisions are above recited at length. To this act the argument for the prosecutors was solely addressed. It is first attacked as violative of paragraph 11 of section 7 of article 4 of the amended Constitution, which, inter alia, prohibits the passage of private, local, or special laws (a) regulating the internal affairs of towns and counties; (b) appointing local offices or commissions to regulate municipal affairs; (c) conferring corporate powers.

To deal with the last of these points first: In Pell v. Newark, 40 N. J. Law, at page 76, 29 Am. Rẹp. 266, it was said by Justice Van Syckel, for reasons that we deem conclusive, that the prohibition of special laws conferring corporate powers has reference only to private corporations. The same view was adopted and made the basis of the decision of Vice Chancellor Stevens in State Board of Health v. Diamond Mills Paper Co., 63 N. J. Eq. 111, 114, 51 Atl. 1019, whose opinion was adopted by the Court of Errors and Appeals in affirming the decree, 64 N. J. Eq. 793, 53 Atl. 1125.

In dealing with the act in reference to the constitutional interdict of special legislation regulating municipal affairs, we may inquire, first, whether the powers conferred upon the commissioners are municipal powers; secondly, whether the act, in its main features, is a special act, within the prohibition of the fundamental law; and, if not, then, thirdly, whether the provisions of the act, so far as they incidentally regulate the internal affairs of municipalities already established, are to be characterized as special legislation in that behalf.

In

The main purpose of the act is to establish, within and for a designated portion of the area of the state, a great public work, for a great public purpose, which work is to be established, maintained, and operated through the instrumentality of an administrative branch of the central government of the state, at the cost of the present and future residents of the district particularly affected by means of taxation of the property, real and personal, within that district. effect, the act declares that the Passaic river and other natural streams within the district are so polluted by sewage and other deleterious matter as to be a menace to the health, not to mention the comfort, of the population. For practical purposes, the act treats this situation as a public nuisance. To the extent that the polluting materials proceed from municipal sewers that by legislative license are permitted to be discharged into the river, it would, of course, be inaccurate to describe the resulting pollution as a nui

sance in law, so long as the license remains unrevoked. One of the chief objects of this act is to revoke the legislative authority previously given to the municipalities in that behalf. The right of revocation is a controverted point in the present case; to be dealt with in its order. But a material part of the river pollution proceeds from sources independent of the municipal sewers, and not covered by any legislative authority. To this extent there is, or may be, nuisance in law. But as we take it, the validity of the statute does not depend upon whether the conditions existing in the lower valley of the Passaic are attributable to the exercise of lawful rights by municipalities or individuals, or are due to unauthorized pollution of the river. The acts deals with a practical situation. It proposes a compulsory cleansing of the river, to be accomplished by first constructing an artificial channel to car ry the polluting materials to the sea, and then requiring that this channel be used instead of the natural stream. And this is to be done not by delegating the work to the municipality or municipalities that happen to be chiefly concerned, nor by erecting a new municipality for the purpose, but by direct intervention of the central authority in the state.

The powers conferred upon the sewerage commissioners are executive and administrative in their character. The commissioners are constituted by section 3 (page 780) a body politic, with the essential powers of corporations; and by section 21 (page 792) they are authorized to make rules and regulations for the use, protection, and management of the works, property, and plant, and for the protection of the rivers and streams within the district from pollution. Beyond this, the commissioners have no legislative powers. By section 15 (page 788) they are required to give a hearing to the municipalities affected upon the question of the apportionment of the cost of maintenance, operation, and repair of the plant. This, of course, is a quasi judicial function, similar in character to that which is frequently imposed upon boards and officers having to do with the assessment and adjustment of taxes. And, while the same section declares that the apportionment when made by the commissioners shall be final and conclusive, this is manifestly subject, on constitutional grounds, to the review of the Supreme Court by certiorari. For all essential purposes, the corporate body created by this act is but an executive and administrative branch of the state government, charged with the duty of carrying out in detail a work that the lawmaking body has determined to establish and maintain for the good and welfare of the citizens of the state, and especially of those residing within the sewerage district. The powers of this board are closely analogous to those conferred upon the boards created for the establishment and maintenance of state hospitals for the insane, and other

public establishments of like character. To call this sewerage district, or the commission that is put in charge of this work, a municipal or quasi municipal corporation, is, we think, a misuse of terms. There is lacking the delegated power of legislation for local purposes, which is of the essence of municipal government. 2 Kent Com. *275. There is also lacking the direct and exclusive voice of the people locally concerned, so common in our municipalities. Some of our judicial decisions, indeed, have almost treated the right of local self-government as essential to the definition of a municipal corporation. State, Lydecker, Pros., v. Englewood, 41 N. J. Law, 157; Allison v. Corker, Assessor, 67 N. J. Law, 606, 52 Atl. 362, 60 L. R. A. 564. But, so far as observed, this point has not been necessarily involved in the cases. Self-gov. ernment in municipal affairs is so well-nigh universal in this country that it is sometimes thought of as a constitutional right; but perhaps it is not, in the absence of express constitutional provision. See 1 Dill. Mun. Corp. (4th Ed.) § 9, 19, 20, 21, 44, 58a, 60, 61, 183, and elsewhere passim. Our own Constitution now contains an express prohibition against special or local laws for "appointing local offices [sic] or commissions to regulate municipal affairs," which seems to imply the legislative power to enact general laws for these purposes. We therefore base our view that the Passaic Valley sewerage commission is not by this legislation made a municipal corporation, rather upon the absence of the political and legislative power that seems to be an essential faculty of municipal corporations, than upon the absence of loca! self-government. Dill. Mur. Corp. (4th Ed.) §§ 19, 20. The question then arises whether the Legislature is debarred by any constitutional limitation from carrying out the objects aimed at in this legislation by any instrumentality other than the establishment of a municipal corporation or corporations for the purpose. Must work of this character be confided to the municipalities? Is the Legislature impotent to act directly, and through its own chosen agencies, merely because its plans have reference to a limited portion of the state's area, where the emergency requires their adoption? It seems to us these questions must be answered in the negative. It is not, in our opinion, a constitutional right of the people to have all matters of local concern intrusted to municipal corporations. Within constitutional limits, the people of the state, acting through the general Legislature, may delegate to the municipalities such portion of political power as they may deem expedient, may withhold other powers, and may withdraw any part of that which has been delegated. Mt. Pleasant v. Beckwith, 100 U. S. 514, 25 L. Ed. 669; 20 Am. & Eng. Encycl. Law (2d Ed.) tit. "Municipal Corporations," p. 1218 et seq.

The constitutional prohibition of special legislation is absolute with respect to that 58 A.-37

which "regulates the internal affairs of municipalities." But the word "internal" here means governmentally, not territorially, internal. Such matters of local government as are confided to the municipalities at once be come, and until recalled remain, their "internal affairs." But it is not every matter of governmental regulation, local in its effect when territorially considered, that is an “internal affair" of the municipality, within the meaning of the constitutional interdict; otherwise there would have been little need for the accompanying prohibition of special laws relating to roads, public grounds, drawing jurors, changing the law of descent, granting the right to lay down railroad tracks, providing for the management and support of free public schools, etc.

So far as the present act operates upon the several municipalities that lie within the sewerage district, it will be dealt with presently. We are at the moment considering the district as a separate governmental establishment. So far as the act regulates the district, as a district, and the proposed sewage disposal system, it does not regulate the “internal affairs" of a municipality, for the district is not established as a municipal corporation. But after enumerating specified topics upon which special legislation is absolutely prohibited, the constitutional amendment in question proceeds as follows: "The Legislature shall pass general laws providing for the cases enumerated in this paragraph, and for all other cases which, in its judgment, may be provided for by general laws." The latter part of this clause plainly leaves much to the discretion of the Legislature. It implies that there are matters of local concern other than those especially enumerated in the paragraph; and, with respect to such others, it is left to the Legislature to determine, in its judgment, whether they can be reached by general enactments. Under this clause, it would require at least a plain case, amounting in effect to an evasion of the legislative duty, to justify us in declaring an act void for want of generality. State v. Price (recently decided by this court) 58 Atl. 1015. But is the act before us "local or special," within the constitutional interdict, even as relates to the establishment and regulation of the sewerage district as such? The fact that it applies in terms and by name to the Passaic Valley sewerage commission, and cannot without amendment be made applicable to any other commission of the same sort, is not controlling. If it applied in terms to "all sewerage commissions," its effect would be precisely the same, so far as present conditions are concerned; there being in fact no other territory established as a sewerage district, nor any other commission, to which the act could apply. It is the substance, and not the form, of the enactment that is to be looked to. Rutgers v. New Brunswick, 42 N. J. Law, 51, at page 54. In Van Riper v. Parsons, 40 N. J. Law, at page 6, Beasley, C. J.,