1. The Equal Protection Clause of the Fourteenth Amendment
cannot be invoked by a city against its state. P. 262 U. S. 196
Trenton v. New Jersey, ante, 262 U. S. 182
2. So held
where it was claimed that the method adopted
in c. 252, Laws of New Jersey, 1907, for fixing maximum amounts of
water divertible without payment of license fees to the state,
Page 262 U. S. 193
arbitrary discriminations prejudicial to the City of Newark. P.
262 U. S.
Writ of error to review 117 A. 158 dismissed.
Error to a judgment of the Supreme Court of New Jersey, affirmed
by the Court of Errors and Appeals, in favor of the state in its
action to recover license fees from the City of Newark for water
diverted from the Pequannock River.
MR. JUSTICE BUTLER delivered the opinion of the Court.
The State of New Jersey recovered judgment against the City of
Newark for $18,104.08 and costs in an action brought in the state
supreme court. The judgment was affirmed by the Court of Errors and
Appeals, and the case is here on writ of error. It is based on a
state enactment which is attacked on the sole ground that it
violates the equal protection clause of the Fourteenth
The state's right to recover depends upon the validity of an
enactment of the state (c. 252, Laws of 1907) which is sufficiently
set forth in the decision of this Court, ante,
262 U. S. 182
handed down on this day.
In East Jersey Water Co. v. Board of Conservation &
91 N.J.Law 448, 453, it is said:
"The statute requires payment 'for all such water hereafter
diverted in excess of the amount now being legally diverted,' with
the proviso that no payment be required until the legal diversion
shall exceed one hundred
Page 262 U. S. 194
gallons per day per capita. We are of opinion that 'legally
diverted' means not a future diversion, but one now being exercised
under a legal right, and that, under this statute, a legal
abstractor may take what he was diverting in 1907, and, if that did
not reach the statutory maximum of exemption, as much more as is
required to make the total diversion one hundred gallons per day
per capita for each of the municipalities supplied, without payment
of the license fee."
"If, in 1907, the daily diversion exceeded one hundred gallons
per capita, the amount then diverted, if lawful, may be taken
without payment, and if it was less, no license fee can be imposed
until it exceeds the statutory quantity."
The complaint alleged that, under the provisions of this act,
the city was
"permitted to divert . . . an average daily free allowance of
water to the amount of 36,241,666 gallons, the said last mentioned
amount being the amount of water which was being diverted by said
municipality on June 17th aforesaid, the date when the act
aforesaid became effective and operative,"
and claimed, for each of the years subsequent to July 1, 1914, a
license fee of $1 per million gallons for the excess of the daily
average diversion of water over the quantity above specified. The
answer alleged that, prior to the passage of the Act of 1907, the
city had acquired a plant capable of furnishing 50,000,000 gallons
of water per day, and set up certain separate defenses. At the
trial, the court, on motion of the state, struck out the separate
defenses; the facts were not in controversy, and judgment was given
for the amount claimed. About the same time, the state also
recovered judgment against the City of Trenton for the license fee
imposed by the same act. Both cases were taken to the Court of
Errors and Appeals, the highest court of the state, and there, by
one decision, the judgments were affirmed. 117 A. 158. That court
Page 262 U. S. 195
"The facts are not in dispute. It is conceded that the City of
Trenton, at the time of the enactment of the Act of 1907, was
taking from the Delaware River daily 14,200,000 gallons of water
for local use, and that the City of Newark was daily extracting
from the Pequannock River 36,241,666 gallons for local use. These
diversions represent the ante
-statutory flowage, and are
considered by the state under the eighth section of the Act of 1907
to be nontaxable."
To establish its contention that § 8 of the enactment in
question so discriminates between those authorized to divert water
that it violates the equal protection clause of the Fourteenth
Amendment, the city says that the highest court has in this case
construed the words "now being legally diverted" to mean the amount
of water which was actually diverted on the day when the act went
into effect, namely, June 17, 1907; that, had the city flowed into
its mains 50,000,000 gallons that day, the tax would have been
levied only upon the excess over that amount, and, on the facts
shown in the complaint, there would have been no tax in the years
above referred to; that the purely accidental figure of 36,241,666
gallons, the amount actually diverted on that day, will for all
time be the basis of the assessment of the tax upon the city. It is
suggested that cities less populous by one-half than Newark, but
owning plants far in excess of their needs, might have diverted on
June 17, 1907, twice the amount of water which the City of Newark
diverted, and that a city twice as large might have diverted half
as much, and the former of such cities would thereby have procured
an almost perpetual exemption, and the latter would have brought on
itself an insupportable burden of indefinite duration, and that
accidents of climate, of conflagrations, and of breaks in the mains
on the critical date, June 17, 1907, would have resulted in
increasing the exemption.
Page 262 U. S. 196
The enforcement by the state of the provision of the act
imposing upon the city the specified annual payments for such
diversion of water does not violate the equal protection clause of
the Fourteenth Amendment. The regulation of municipalities is a
matter peculiarly within the domain of the state. In Trenton v.
decided this day, ante, 262 U. S. 182
is held that the imposition of the license fee specified in this
act is not a taking of property of that city in violation of the
Fourteenth Amendment. The reasons supporting that conclusion apply
here. The city cannot invoke the protection of the Fourteenth
Amendment against the state. *
former opinions of this Court, there is no substantial federal
question in the case.
The writ of error is dismissed.
* Cf. Williams v. Eggleston, 170 U.
, 170 U. S. 310
Mason v. Missouri, 179 U. S. 328
179 U. S. 335