For the prosecutor, Stanger & Howell (Robert G. Howell, of counsel).
For the respondents, John A. Casarow (Darid L. Horuvitz, of counsel).
Before Justices Bodine, Perskie and Wachenfeld.
The opinion of the court was delivered by
PERSKIE, J. This is a water rate case. Broadly stated, the question requiring decision on the facts of this case, and the law applicable thereto, is whether the resolution of August 1st, 1944, and the ordinance (No. 512) of July 3d, 1945, adopted by respondents, regulating the supply of water to its consumers, and fixing the rates are, as claimed by prosecutor, illegal.
Respondent the City of Bridgeton (hereafter referred to as City) owns and operates its own water plant. Pamph. L. 1907, ch. 99, § xxxv (Comp. Stat. 1709-1910, p. 1412), saved from repeal by R.S. 40:106-1; R.S. 40:62-47; R.S. 40:62-79. It has a population of about 16,000 inhabitants who are housed in about 4,000 homes. It has a large number of plants in which various substantial industries, such as canning of foods, & c., are conducted. Prosecutor is the owner and operator of such a plant.
The first regulatory measure for the supply of water to its consumers was adopted by the City (Ordinance No. 159) on January 12th, 1909. So far as is here pertinent, this ordinance provides both for a flat or unmetered rate and for metered rates. The former was, generally stated, based upon the number and type of outlets and faucets used irrespective
of the size and number of supply lines, or quantity of water consumed. The latter was based upon the water consumed as evidenced by meters at the following rates:
"First 30,000 gallons or less, per quarter 15 cents per 1,000 gallons.
For the next 40,000 gallons or less, per quarter 12 cents per 1,000 gallons.
For the next 50,000 gallons or less, per quarter 10 cents per 1,000 gallons.
For the next 70,000 gallons or less, per quarter 8 cents per 1,000 gallons.
For the next 100,000 gallons or less, per quarter 6 cents per 1,000 gallons.
For the next 200,000 gallons or less, per quarter 5 cents per 1,000 gallons.
For the next 500,000 gallons or less, per quarter 4 cents per 1,000 gallons."
Prosecutor calculates that the average cost of each 1,000 gallons for the total number of gallons (990,000) set forth in the foregoing schedule, was $.0514. The fact is that from the date of the passage of th first ordinance (No. 159) up and until the day of the passage of the resolution (August 1st, 1944) under review, the City billed consumers under the unmetered provisions of the ordinance. Upon that basis, prosecutor paid the City a little less than $400 a year for the large quantities of water which it consumed. More as to this later.
Prior to 1929, the City's source of supply came from surface waters. Either because of the unrestrained pollution of such waters, or its insufficiency to meet the needs, or both, the City was obliged to change its source of supply from surface to sub-surface waters. Accordingly, it finally acquired five artesian wells between 1909 and the end of 1941. The fifth well (Irving Avenue) was acquired upon conditions which were imposed by the State Water Policy Commission on the authority of R.S. 58:1-21. The conditions, accepted
by the City, were that the City, within one year from the date of its acceptance, would, first, install meters in the plants operated by four of the largest consumers of water, of which prosecutor was the largest, and second, that the City would prepare and submit a plan for the meterization of the water supplied to all the inhabitants of the City.
Although the fifth well was completed and put to use in 1942, the City took no action to satisfy the conditions imposed and assumed by it relating to the installation of meters. This inaction is charged to war conditions which the City claims precluded it from obtaining water meters. Pressure on the part of the Water Policy Commission, and the easing of priorities finally enabled the City in 1944 to purchase and install meters in the plants of five of the largest consumers of water of which, as already indicated, prosecutor was the largest one. These meters were finally installed on August 1st, 1944. On the same day, the City adopted a resolution which recites the installation of the meters in the five named plants, their locations and fixes the rate to be charged to the named industrial plant consumers, at $.055 for each 1,000 gallons.
This rate (5 1/2 cents) continued until July 3d, 1945, when the City adopted ordinance No. 512, under review, amending sections 32 and 34 of ordinance No. 159. Section 34 was amended and reads as follows:
"Section 34. That the subject of meters of Section 34 of said Ordinance No. 159 be amended so that the same shall cease to read as heretofore, and shall hereafter read as follows:
For the first 10,000 gallons or less per quarter, 25 cents per 1,000 gallons.
For the next 30,000 gallons or less per quarter, 20 cents per 1,000 gallons.
For the next 40,000 gallons or less per quarter, 18 cents per 1,000 gallons.
For the next 50,000 gallons or less per quarter, 15 cents per 1,000 gallons.
For the next 70,000 gallons or less per quarter, 12 cents ...