
    WALTER A. SUMMERTON ET AL., PLAINTIFFS IN ERROR, v. THE CITY OF ELIZABETH, DEFENDANT IN ERROR.
    Argued June 17, 1909
    Decided June 28, 1909.
    On error to the Supreme Court.
    For the plaintiffs in error, Frank P. McDermott.
    
    For the defendant in error, Frederick J. Faulks.
    
   Per Curiam.

The judgment of the Supreme Court is affirmed, for the reasons stated in that court by Mr. Justice Bergen, whose opinion we adopt with one reservation, viz., that we do not decide that municipalities that bound upon a stream used by them for sewerage are not within the purview of the statute. A decision upon this point is not called for. We agree with Mr. Justice Bergen that the classification on which the statute is based is justified, and that it is not arbitrary or illusory, but instead of placing its validity upon the fact or even upon the assumption that such classification excludes those cases in which a stream so used is the boundary between two municipalities, we prefer to put it in the alternative, and to say that municipalities so situated are either excluded from the class by a strict construction of the statute or else fall within its purview by a more liberal construction. One or the other must be so, and in either event the classification is eonstitutional, and it is immaterial to the plaintiff in error which of these views the court may take when the question is presented for determination. It is, however, highly important to the municipalities affected by such construction that the matter be not prejudged, even arguendo, in their absence. With this exception by which the question stated is reserved, the judgment is affirmed upon the opinion delivered in the court below.

For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Parker, Minturn, Bogert, Vredenburgh, Gray, Dill, Congdon, JJ. 12.

For reversal — Hone.  