Pub. Serv. Electric Co. v. Bd. of Pub. Util. Com'rs

• Decision Date: 06 March 1916
• Docket Number: No. 25.,25.
• Citation: 96 A. 1013,88 N.J.Law 603
• Parties: PUBLIC SERVICE ELECTRIC CO. v. BOARD OF PUBLIC UTILITY COM'RS et al.
• Court: New Jersey Supreme Court

96 A. 1013

88 N.J.Law 603

PUBLIC SERVICE ELECTRIC CO.

v. BOARD OF PUBLIC UTILITY COM'RS et al.

No. 25.

Court of Errors and Appeals of New Jersey.

March 6, 1916.

(Syllabus by the Court.)

Appeal from Supreme Court.

Certiorari by the Public Service Electric Company against the Board of Public Utility Commissioners and the City of Plainfield. From a Judgment setting aside the order of such board (87 N. J. Law, 128, 93 Atl. 707), it and the City of Plainfield appeal. Affirmed.

Frank Bergen, of Newark, for Public Service Electric Co. Charles A. Reed, of Plainfield, for City of Plainfield. Grover C. Richman, of Camden, and Frank H. Sommer, of Newark, for Public Utility Commissioners. John Milton, of Jersey City, Albert O. Miller, Jr., of Passaic, and Spaulding Frazer, of Newark, for New Jersey State League of Municipalities.

WALKER, Ch. On July 12, 1898, the city of Plainfield by ordinance designated certain streets and highways in that municipality through and upon which posts or poles of the Plainfield Gas & Electric Light Company might be placed and maintained, providing for the manner of placing the same, and for the construction, maintenance, and use by the company of underground conduits, cables, etc., for the distribution of electricity for light, heat and power.

On November 26, 1898, the Plainfield Gas & Electric Light Company and the city of Plainfield, by their respective corporate names and under their corporate seals, made and entered into a written agreement which recited that it was understood and agreed before the passage of the ordinance mentioned, and in consideration thereof, that the light company should enter into the contract for the benefit of the city and of persons residing therein. It contained an agreement that the company, its successors or assigns, would at all times thereafter, while it, its successors or assigns, should continue to use any of the streets of the city, light by electricity, free of charge, the common council chamber, the office of the mayor, collector, street commissioner, and city clerk, city jail, station house, almshouse, fire houses, and all offices, rooms, or buildings owned or occupied by the city officers, or that might thereafter be owned or occupied for city purposes.

Subsequently the Public Service Electric Company acquired and took over the rights, privileges, and duties of the Plainfield Gas & Electric Light Company, and the ordinance and agreement mentioned thereupon became binding upon the Public Service Electric Company.

Since the date of the ordinance and agreement the Plainfield Gas & Electric Light Company, and its successor, the Public Service Electric Company, have continued to use the streets of Plainfield in the ordinance and agreement mentioned, and continued to light by electricity, free of charge, the offices and buildings owned or occupied by the city for city purposes, until February 1, 1914, when the Public Service Electric Company discontinued and further refused to do such lighting in accordance with a notice served on the city on or about December S, 1913.

The ground upon which the Public Service Electric Company rests its refusal to be further bound by the terms of the agreement, in so far as it provides for the lighting of the municipal buildings of the city without charge, is that P. L. 1911, p. 374, the statute creating the board of public utility commissioners, enacts that no public utility as therein defined shall make any unjust or unreasonable, unjustly discriminatory, or unduly preferential rate for any product or service supplied or rendered by it within this state, or make or give, directly or indirectly, any undue or unreasonable preference or advantage to any person or corporation, or to any locality, and that, by the terms of the act, the company can no longer furnish the light provided for in the agreement free of charge, because that would be discriminating in favor of Plainfield and according a preference to that city.

Upon the refusal of the company to furnish the light the city presented a petition to the board of public utility commissioners, praying that it make an order requiring the company to comply with the agreement and to continue lighting the municipal buildings in conformity with its terms. After hearing, the board made an order directing the company to conform to the duties imposed upon it by the agreement, and to furnish free of charge to the city of Plainfield such service as the agreement provided for.

Upon certiorari to the Supreme Court the order so made was set aside, upon the ground that the provision of the agreement for free service to the municipality was avoided by the enactment of the provision of the public utility act prohibiting undue and unreasonable discrimination.

The opinion of: the Supreme Court properly states that the statute creating the board of public...