
    LEON D. HIRSCH, PROSECUTOR, v. WILLIAM F. BURK ET AL.
    Submitted March 21, 1912
    Decided July 10, 1912.
    The language of the so-called Commission Government act {Pamph. L. 1911, p. 462) is broad enough and sufficiently clear to include a department of the city of Trenton created by special act {Pamph. L. 1859, p. 38), which acted as a governing body having functions for the administration of affairs of the municipal water works, and this department and the water commissioners were abolished as soon as the commissioners for the government of the city of Trenton organized.
    On certiorari.
    
    Before Justices Bergen, Yoorhees and Kalisch.
    For the prosecutor, McCarter & English.
    
    For the defendánts, Charles E. Bird.
    
   The opinion of the court was delivered by

Voorhees, J.

The prosecutor in this case was appointed assistant secretary-treasurer of the Trenton Water Works by the board of water commissioners, created by an act of the legislature approved March 1st, 1859. Pamph. L., p. 38. ,

The fact that he was an appointee of the water commissioners created by this act, differentiates his case, he contends, from Ziegler v. Burk, post p. 207, which otherwise is controlling.

This act empowers the water commissioners to sue and be sued, prosecute and defend actions in the name of the Water Commissioners of the City of Trenton, and enacts that they shall be considered from the time of the organization of the board a body corporate.

The first commissioners were appointed by the act, and thereafter it was provided that the common council should annually elect two commissioners for three years.

It is argued that the prosecutor occupies a different position from Ziegler, because the board of commissioners of the city of Trenton have no jurisdiction whatever over him. It is also urged that the so-called Commission Government act (Pamph. L. 1911, p. 462) did not abrogate the separate organization or department known as the water department.

The special act provided that “The water works shall be conducted and managed exclusively by and through a board of commissioners,” to .possess all the authority and powers theretofore exercised and performed by the directors of the private water company, formerly owning the works which said special act provided might be acquired by the city.

These water works were essentially matters of local and municipal concern, and the board organized for the purpose of controlling them is not a state agency, but is in substance a municipal board, and its members are city officers.

Such municipal board is a representative and agent, of the city, and is not an independent corporation, although it may be authorized by statute to sue and have a common seal and to contract with reference to the works in its own name. Morton v. Power, 33 Minn. 521.

The opinion in Board of Water Commissioners v. People, 137 Ill. 660, reads as follows:

“The mere fact that the legislature saw fit for purposes of convenience and of administration to give it (the board of water commissioners) a corporate existence and invest it with certain corporate powers, did not prevent it from being simply a branch or an agency, created.for a special purpose of municipal government.”

See also Brenan v. People, 176 Ill. 620, in which the foregoing case is cited.

Although they were in a sense a body corporate, yet they were amenable to general acts of the legislature concerning municipal boards or departments. A case very similar to the one under consideration is Cohn v. New Brunswick, 44 Vroom 128. The water commissioners in that city were a body borporate with power to sue and be sued, yet they were held amenable to- “An act regulating the receipt and disbursement of money and the passage of ordinances pertaining thereto, in any city of this state.” Pamph. L. 1904, p. 259.

The creation of such departments is a legislative function and not a municipal function, unless specially delegated to> the municipality, and it follows that such departments may piso be abolished by the power which created them. Did the so-called Commission Government act effect the abolition of the water commissioners in the city of Trenton?

The language of the act is: “Upon the organization of the commissioners in any such city, elected under this act, the city council, or other governing body or bodies, theretofore acting as governing body or bodies in such city, and' having any other functions, shall be ipso facto abolished.”

We think this language is broad enough and sufficiently clear to include a department of the city such as that created' by the special act- above cited, which acted ¿s a governing body having the functions for the administration of the affairs of the municipal water works, and hence that this department and the water commissioners were abolished as soon as'the commissioners for the government of the city of Trenton organized.

The resolution, therefore, dispensing with the services of the prosecutor is placed upon the same basis as the resolution in Ziegler v. Burk, supra.

The resolution in question will therefore be .affirmed, with costs.  