segregation for the use of particular locali- sion of the quantity necessary for the applities. The question became so momentous that in 1907 the Legislature undertook to deal with it, and in that year (P. L. p. 633) a statute was enacted which provided for the appointment of five persons to constitute a commission to be known as the State Water Supply Commission "charged with a general supervision over all the sources of potable and public water supply to the end that the same may be economically and prudently developed for the use of the people of this state." Section 2 of this act declares that no municipal corporation engaged in supplying, or proposing to supply, its inhabitants with water "shall have power to condemn lands or water, or any new or additional source of water supply, or to divert water from such new or additional source until such municipal corporation, corporation or persons has first submitted descriptions thereof, which shall be accompanied by maps and plans, to said commission, and until said commission shall have approved the same." Section 3 authorizes municipal corporations to make application to the commission for the approval of its plans for obtaining a new or additional source of water supply, and provides for a public hearing upon due notice at which all persons affected by the proposed plans may be heard for or against the granting of the application. It further provides that after due hearing "the commission shall decide whether the plans proposed are justified by public necessity, or reasonably anticipated public use, and whether such plans interfere unduly with the opportunity of other municipalities to obtain a water supply by the taking of waters necessary for their use, or whether the reduction of the dry season flow of any stream will be caused to an amount likely to produce unsanitary conditions, or otherwise unduly injure public or private interests." And it was also declared that the approval of the commission shall constitute the state's assent to the diversion of water and the construction and operation of waterworks. In 1910 (P. L. p. 551) the commission was given the same jurisdiction and supervision "over well, subsurface or percolating water supplies now or hereafter furnished to the inhabitants of any municipal corporation as it now has over surface water supplies so furnished." [1] This statute, in our opinion, does not confine the power of the State Water Supply Commission to the approval or nonapproval of the physical character of the construction proposed, for it is expressly charged with a general supervision over all sources of potable water supply to the end that it may be economically and prudently developed for the use of the people of this state, and this supervision includes the determination of whether the plans proposed, which include the source of supply, are justified by public cant's use will interfere unduly with the obtaining of water by other municipalities, and also whether the amount taken will so affect the flow of any stream as to be likely to produce unsanitary conditions or otherwise unduly injure public or private interests. All of this requires more than the approval of the physical structure, and we think that it commits to this commission the power to say whether in a given case the supply of water to be taken is likely, among other things, to interfere unduly with the opportunity of other municipalities to obtain a water supply, and whether what is proposed to be done is justified by public necessity or reasonably anticipated public use. The power of the Legislature to conserve the public waters of the state for the benefit of all the people of the state is not questioned, and, if the Legislature has committed to its agent what, in the estimation of some of its citizens, appears to be an undue power, it can only be corrected by the Legislature, and not by the courts of the state, and finding, as we do, that the power to sanction and approve or to withhold it is committed to this commission, we cannot say that its action was illegal, if reasonable. Is it reasonable? is the remaining question. On this point the appellant argues that, as the water which is now supplied to the borough of Collingswood by contract with a private corporation is drawn from the public water supply, such supply would not be diminished by granting this application, because, to the extent of the diversion from a new source, the present draft on the public water supply would be relieved, and therefore there is no escape from the conclusion that the presence of the existing water plant was the only fact which led to the refusal of this application, and that the effect of the refusal is the protection of a monopoly. This is not a fair statement of the position of the commission, their determination being that, as the municipality was now being supplied with water in sufficient quantity, of good quality, and at reasonable rates, there existed "no public necessity or reasonably anticipated public use" which required a new draft upon the public waters of the state; and this, we think, was the exercise of a discretion conferred by the Legislature, for, when a municipality proposes a draft upon a new source of water supply, the commission have a right to consider the fact that the municipality is now being supplied from another source in determining whether there is a "public necessity or reasonably anticipated public use" required to be supplied by tapping a new source of supply, and we cannot say that, in determining that no such public necessity existed, the commission abused the discretion conferred upon them by the statute, or that such conclusion is without evidential support and therefore unreasonable. growing community increasing rapidly in population, and that its expansion would be stimulated if it was known that it owned its own municipal water supply plant. This argument does not affect the question of the reasonableness of the determination of the commission. It bears upon the promotion of the growth of the city, rather than in support of the claim that there is a public necessity or a reasonably anticipated public use. It is also urged that the suggestion contained in the opinion of the Supreme Court that the private corporation now furnishes water which does not come from the public water supply was not correct, because the supply furnished by the private corporation to appellant is provided by the Merchantville Water Company, which derives its supply from the public water sources of the state. But, assuming that to be so, the judgment of the Supreme Court was not put upon that ground. It was simply an argument in answer to a proposition advanced by the appellant, and not necessary to the determina tion of the cause. We are of opinion that the commission is given by the statute the power to refuse a municipality the right to divert water from a new source of supply, if there exists no public necessity or reasonably anticipated public use therefor, and where, as in this case, the Supreme Court has determined as a question of fact that such determination was reasonable, the conclusion of the Supreme Court will not be reviewed, if there was any evidence justifying the finding by the Supreme Court. Sisters of Charity v. Cory, 73 N. J. Law, 699-703, 65 Atl. 500. We think there was such evidence, and therefore the judgment of the Supreme Court is affirmed, with costs. WHITE, J. (dissenting). In stating my reasons for voting to reverse the judgment of the Supreme Court in this case, I am authorized by Mr. Justice GARRISON, who is prevented from being present, but who participated in the conference of this court on this case, to use the dissenting memorandum prepared and intended to be filed by him, which is as follows: "The power of this court at this time to review the action of the respondent is conferred by the statute that created that public agency which expressly provided that its action 'shall at all times be subject to review by the courts for reasonableness, legality and form,' not at one time by a court, but by 'the courts' at all times.' relation of vendor and vendee between a private vendor of water and the municipality, establishes the unreasonable doctrine that a municipality that is buying its water will because of that fact be denied the right to have waterworks of its own. This necessarily results in a monopoly that is perpetual at the will of the private purveyor of water, for there is a period in the history of every newly organized municipality when it is too sparse in population and too weak financially to have waterworks of its own, and hence must, in the performance of its governmental duty, become a purchaser of water, which municipal act is, by the interpretation placed by the commission upon its power, and by the construction placed upon the statute by the court below, a plenary reason for denying to such municipality when it has grown larger and stronger the right to perform for itself the governmental function in question. "That the existing relation between the borough and such private vendor of water is in the present case the sole determining factor is perfectly apparent both from the report of the commission and the opinion of the court below. "In my judgment the question whether the borough should continue to buy its water was one of legislative policy to be determined by the municipality whose action was not subject to review or reversal by the State Water Supply Commission under a proper construction of its statutory powers, and that, in overriding such municipal action, the commission exercised powers that were ultra vires such state agency, and which neither the Supreme Court nor this court would venture to assert under like circumstances. "The great importance of keeping the several state agencies or commissions, which are rapidly growing in number, within the sphere of their proper activity, coupled with the establishment of a monopoly and the peculiarly obnoxious interference with home rule that results from the doctrine established in the present case, justifies this brief statement of the grounds upon which I vote for the reversal of the judgment entered in the court below." Further amplifying upon the reasons expressed in this view of Justice GARRISON, in which I heartily concur, I think the action of the State Water Supply Commission in this case particularly obnoxious from a practical as well as from a legal standpoint. If this state agency is to be permitted to decide that, because, and only because, the business of a private water company now supplying "The action thus brought under review in the territory in question would otherwise be my opinion lacks legality because it is found- impaired, the people are to be deprived of ed upon a misconception by the commission their natural right to take for themselves of the scope of its statutory powers based the water with which nature has supplied upon a misconstruction of the statute which them in their own territory, then not only the confers and circumscribes such powers, and state Constitution's prohibition against speit lacks reasonableness because the sole rea- cial laws granting exclusive privileges to cor unanimous public opinion antagonistic to monopolies in public utilities, will have become a farce. All that will be necessary will be for a political boss of sufficiently large power, owning a water corporation, to procure the appointment of a complaisant water supply commission of friends or relatives in order to create his company, chartered and intended to serve the people, into a monopoly to oppress them. I think it a particularly dangerous doctrine which will vest such a power as this in any commission, and I do not think the Legislature has so vested it here. What the Legislature has done, and what only in my judgment it could do, is to vest in this commission the right to prevent one community from taking more water than its reasonable necessities require it to take, where to do so would deprive some other community of a supply sufficient for its reasonable necessities. Under such circumstances it may well be that one community, which is reasonably supplied from one supply, will be prevented from tapping another supply, where it appears that to do so would deprive some other community of its necessary supply. Such reasonable conservation of the public supply for all so that all may partake of it is within the state's police power, and is consequently valid. But where, as here, the only deprivation to result from the taking is of profits of a corporation for private profit, I cannot think any ground has been laid for the commission's action. Our Constitution prohibits the taking away of private property for public profit without compensation. The reason that it did not make a similar prohibition as to the taking away of public rights from the public for private profit was doubtless because it was never intended that it should be done. And yet in this case this commission has said that the public of Collingswood shall not be permitted to exercise their natural right to take for themselves water for their necessary consumption from their own territory, where it does not appear that to do so will deprive any other citizens of the state of their full water supply, because to do so will affect the private profits of a water company whose charter does not and could not pretend to give it any exclusive or monopolistic rights. I think the judgment should be reversed. (82 N. J. Eq. 648) SUTTON v. SUTTON. (Court of Errors and Appeals of New Jersey. March 16, 1914.) DIVORCE (8 54*)-DEFENSES-RECRIMINATION. Assuming that a wife, though living with her husband and sleeping in a room accessible to him, deserted him by refusing to have sexual intercourse, he was not entitled to a divorce, where, instead of making sincere advances to end the separation, he treated her with repulsion, scorn, and indignity, and did everything he could to estrange himself from her, and finally left her and refused to return, though asked to do so, especially where both were past middle age and had children depending on them. Cent. Dig. §§ 190-196; Dec. Dig. § 54.*] [Ed. Note. For other cases, see Divorce, Appeal from Court of Chancery. Suit for divorce by Francis M. Sutton against Louise S. Sutton. From a decree dismissing the petition, the petitioner appeals. Affirmed. Advisory Master Charles J. Roe filed the following conclusions in the Court of Chan cery: December 17, 1912. The petitioner seeks a "The petition in this cause was filed on divorce from his wife, the defendant, for desertion since the month of August, 1908. This desertion is based solely on the claim that the defendant, although performing all other wifely and motherly duties, refused to her husband, the petitioner, sexual inter course. In and three children, the youngest being 16 The parties were married in 1892, years of age, is the result of this union. It is admitted that since 1898 the permanent residence of the parties was at Allenhurst, N. J., although the defendant says that since January 1, 1911, she, by advice of counsel, has claimed Brooklyn as her permanent home; Brooklyn being the place where both parties have lived during the winter. their testimony both parties date their differences from the time of their marriage, but I fail to find any serious trouble between them prior to 1908. There had been disputes between them about minor matters, which were afterwards continually revived and exaggerated in subsequent communications with one another. One of the earliest of these disputes arose over the petitioner objecting to having his wife's mother live with him, but this was early settled, the husband the title to the same in his wife's name. buying a residence in Brooklyn, and placing This property was subject to a mortgage of $10,000. It is admitted that there was an agreement between the parties to occupy separate sleeping rooms-rooms which were accessible to one another when they lived at their Brooklyn home. The summers were passed at Allenhurst. "In the year 1908, the defendant, wife, had discovered that her husband, the petitioner, had been guilty of infidelity, and she says that he confessed his crime to her. He does not deny this. At all events, as a result of this discovery, it is evident that the petitioner exerted himself to placate his wife. He gave to his wife at this time $10,000, which was the amount of the mortgage on the Brooklyn residence, and there was a reconciliation between the parties. At all events the parties resumed for a short time marital relations. Shortly afterwards their relations become more hostile than ever. The cause of this is not evident. It may ly had reference to the payment of the interest upon the mortgage. In this letter the wife speaks about the petitioner being ungenerous in leaving her in the difficulties in which she is in, and refers to her lawyer, whom she says she had consulted. We have no reply to this letter, but we have a letter written by the defendant bearing date July 27th of the same year, and indicating that it is an answer to certain questions that her husband has proposed. "In the letter she speaks of her desire for a reconciliation, and says that he will not make one step towards it, and refers to a suggestion that he makes with regard to their having sexual intercourse, and states to him that, while her confidence in him is gone, it would take time and patience to restore her feeling of affection, but that it could be accomplished again if he would do his duty, and she censures his arbitrary methods with his family, and tells him why it is necessary for her to consult a lawyer, and expressly states that she will come to him at Allenhurst. On September 2d of the same year the petitioner writes to the defendant a letter in which he indicates that he is pleased at her willingness for a reconciliation. Subsequent to this a correspondence takes place between the lawyers of the petitioner in Brooklyn, in which the differences between the parties are discussed, and which seems to have broken off any attempt on the part of the petitioner to effect a reconciliation with his wife. He returned to the home of his wife in Brooklyn and continued to live in the same house with her. During this period the defendant and petitioner seem to have lived together; but there is very little evidence of the manner in which they lived during this year, but it evidently was, as I take it, of the same character in which they had lived during the preceding years. One of the witnesses says that in 1910 the petitioner talked about his wife being intimate with her broth have been due to the suspicions of the de- | not produced in evidence, but which evidentfendant arising out of the old fault of her husband. She says it was because he humiliated her by publicly boasting of her having, by sexual intercourse, condoned his offense. At all events their cohabitation ceased, and their relations became estranged. In the winter of 1908 and 1909 a mutual friend attempted to reconcile them, and this was accomplished in February, 1909, when the petitioner and defendant met and agreed on a reconciliation. Almost immediately after this was broken because the defendant wanted the petitioner to wait for a period before they should have sexual intercourse. This demand angered the petitioner, and he at once broke off any further attempt to reconcile with his wife. In this affair I cannot but think that the petitioner was entirely blamable. His attitude appears to have been that all he cared for at that time was sexual intercourse with his wife-sexual intercourse following a reconciliation after a season of bitter quarrels and bickerings, without any effort on his part to regain the affection of his wife, but for the simple purpose of using her to gratify his sexual indulgence. After this period I am entirely satisfied, by the evidence, that the petitioner's conduct towards his wife, living together in the same house a great part of the time, was of such an ugly and disagreeable character that it seemed designed for the purpose of making the situation of the wife unendurable. While the defendant was performing all the household duties of their home and taking care of petitioner and their children, he would rarely speak to his wife, when in her presence sit and glare at her, accuse her of running after men, and deliberately, both in his actions and his conduct, doing all he could to estrange his wife. In June, 1909, in the presence of a witness, the petitioner came to his house in Brooklyn and packed his trunk, and, after showing violence to his wife, left the house and went, as his wife learned afterwards, to his home at Allen-er-in-law, and that his treatment of her was hurst, without inviting her to accompany him. After he had gone to Allenhurst the wife received a letter from the holder of the mortgage, saying that the interest was unpaid upon the mortgage on the Brooklyn residence. The petitioner had theretofore paid the interest upon that mortgage and the assessments upon the property. The wife at this period consulted a lawyer in Brooklyn, and on July 14th of the same year stie wrote her husband a letter, referring to that subject, and to the effect that she had consulted this lawyer. The petitioner says that the reason that he did not pay interest was that he wanted his wife to convey the property back to him. The petitioner produces a letter written by his wife on July 14, 1909, which seems to have been an answer written to some letter that the husband of a very unkind character. In the spring of 1911 the husband went away on a business trip to South Africa, and while he was gone, or just before he went, his wife filed a complaint against him in New York for divorce on the ground of adultery alleging the adultery to have occurred in 1907. To this complaint he filed an answer, alleging that his wife, between the 1st of July, 1907, and the 1st of November, 1908, had condoned the offense. In that suit, which is in evidence, he filed an affidavit which was taken on February 12, 1912, in which the petitioner swears that since 1907 he had lived in the same house with his wife, except when absent on business trips, or at his country residence in Allenhurst, and during said time cohabited with his wife, and during all of said time, except during his absence, to Jan with his wife and children, or some of the children, eating at the table with them, and occupying a bedroom with access open between his room and that of his wife, except during a few nights, not over a week altogether, when the door was locked between her bedroom and his. In December of 1911 the defendant wrote letters to her husband, asking him not to come to the Bainbridge street house, Brooklyn, and in fact locked the door upon the petitioner. This she explains was done under the advice of her counsel, and because she had her suit for divorce for adultery pending in New York. This suit was discontinued by mutual consent in May, 1912. After this time, and up until the time of the bringing of this suit, a number of letters passed between the petitioner and defendant. The burden of these letters on the part of the defendant was a request for her husband to return to her, and his answers to these were evasive, filled with recriminations, and he finally expressed a desire that she should leave the house. In fact they were not fair and frank answers to her efforts to conciliate their differences. On November 12th, prior to the bringing of this suit by the petitioner, the defendant had brought a suit for separation in the state of New York. I do not think that for the purpose of deciding this case it is necessary for me to consider the effect of this suit, brought by the wife against her husband in the state of New York-whether it is a bona fide suit or otherwise—but all that I have to deal with is the evidence which is laid before me in the present cause. "From this evidence so recited I do not think that I am obliged to decide this case on the conflicting doctrine of whether the withdrawal of one of the parties from sexual intercourse is of itself alone a cause for desertion. I do not consider that the facts in this case make it necessary to apply that principle. It is clear to me from the evidence in this case that the petitioner has failed in his duty as a husband to the defendant. He expressly says that since July, 1909, he has not asked his wife to have sexual intercourse with him, for the reason that he believed such request would be unavailing. The defendant on her side says that, if he had requested her to have sexual intercourse, at certain times and on certain occasions she would have been willing. Admitting that the withdrawal of one of the parties from sexual intercourse is in itself a complete desertion under our statutes, the obligations and duties imposed on the other party still remain. The petitioner cannot demand relief on account of a grievance which he has helped to make. "This is quite a different principle from that embraced in Moores v. Moores, 16 N. J. Eq. 275, which held that conduct which would justify desertion must be such as comes more properly under the principle of connivance, which applies to all suits for divorce, on whatever ground instituted. Bishop on Marriage & Divorce, vol. 2, or under the principle laid down in McGean v. McGean, 63 N. J. Eq. 285, 49 Atl. 1083, and Hooper v. Hooper, 34 N. J. Eq. 93, and that is that a suit for the cause of adultery can only be sustained where the desertion is without the petitioner's fault or consent. "If the defendant refused in August, 1908, to have sexual intercourse with her husband, although at the time they were living together and sleeping in accessible rooms, and by that refusal we assume desertion began, certain duties then devolved upon the husband to end such assumed desertion. Unless there is evidence of a settled determination on the part of the wife to desert, where the husband has not contributed to the desertion, as laid down in Hall v. Hall, 65 N. J. Eq. 709, 55 Atl. 300, the duties involving on the husband are the necessary advances to bring an end to the separation. As classified in Biddle on Divorce, pages 84 and 85, these advances must be sincere, just, and in fact be real advances to end the desertion. It would be a hard rule to establish that if the wife has refused sexual intercourse to her husband on one or more occasions, the husband can thereafter treat her with repulsion and act towards her with scorn and indignity, and do everything he can to estrange his wife's affection for him, and to estrange himself from her, and then say that it is useless for him to approach her again because her affection towards him, being completely gone, would make it unavailing. Certainly it should be unavailing with a virtuous woman, and the petitioner knew it would be; but here again he made it so. His approaches were not just or sincere. "In January, 1912, the defendant did drive the petitioner from their home in Brooklyn; by the advice of counsel she says that it was not proper for them to live together during the pendency of a suit for adultery; but, after this suit was settled in the May following, she by letters and communications again and again solicited his return, and was as constantly repulsed by the petitioner. So that I am satisfied that since May, 1912, and up until the commencement of this suit, the petitioner himself was in fact the deserting party. "Under all of the circumstances of this case and in view of the fact that the parties are both past middle age, and in view of the fact that they have children depending upon them, in view of the fact that since May, 1912, the petitioner himself has actually deserted the defendant and refused to return to her, I must find that the petitioner has not sustained his allegation that the defendant, his wife, has willfully, obstinately, |