For the prosecutor, William H. Speer.
For the board, John A. Bernhard.
For the city of Plainfield, William Newcorn.
Before Justices Parker, Lloyd and Donges.
The opinion of the court was delivered by
PARKER, J. This is a certiorari to an order of the board of utility commissioners, dated June 5th, 1935, directing the Water Company, prosecutor, to repay within thirty days to the city of Plainfield the sum of $7,679.08, the amount found by the board to have been "without warrant or justification exacted by way of surcharge from the city by the company." So runs the language of the order. It is attacked on four principal grounds: (1) that at the time of hearing on the application of the city for repayment, no statutory power was vested in the board to order repayment; (2) that chapter 48 of the laws of 1935 (Pamph. L., p. 127) relied on by the
board, was not enacted until nearly a year after the hearing, which was held April 16th, 1934, and remained undecided until the act of 1935 had become a law; and that said act is not retroactive; (3) that if it be held retroactive, it is unconstitutional, and (4) that the excess payments made by the city were voluntary and cannot be recovered back.
For present purposes, the first point may be conceded. Mr. Justice Donges, then a Circuit Court judge, so decided in 1928. National Radiator Co. v. Pennsylvania Railroad Co., 6 N.J. Mis. R. 778, 781, as did the board itself in 1933. Flanagan v. Hackensack Water Co., P.U.R. 1933B, p. 395. However, it is unnecessary for us to pass directly on the point, for reasons presently to be stated.
Point 2 is that the act of 1935 is not retroactive so far as relates to directing restoration of moneys found to have been unlawfully exacted. This is the really important point in the case, and requires a careful examination of the statute, which is entitled as a supplement to the Public Utility act of 1911 (Pamph. L., p. 374) and reads as follows:
"1. Whenever any public utility shall heretofore have been or shall hereafter be authorized by the Board of Public Utility Commissioners to collect a surcharge to raise a definite amount of money or for a specified purpose and the Board, after hearing upon notice, shall determine that the amount authorized has been collected, or that the specified purpose has been accomplished, the Board is hereby empowered to require by an order in writing the immediate discontinuance of such surcharge.
"2. Whenever after hearing upon notice the Board shall determine that any public utility has collected by means of a surcharge an amount of money exceeding the authorized amount or has continued to collect a surcharge after the specified purpose for which it was authorized has been accomplished, the Board is hereby empowered to require such public utility by an ...