On appeal from the Law Division of the Superior Court, whose opinion is reported in
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Heher, J.
By this civil action in lieu of mandamus, plaintiff seeks to compel the defendant township to extend its water mains laid in Intervale Road through an intersecting street known as Fairway Place, for a distance of 600 feet, "under the usual terms and conditions," to provide water for lands of plaintiff on either side of Fairway Place in process of development for residential uses.
Plaintiff applied for the extension on April 26, 1950, and again on May 31, ensuing; and not long thereafter, on June 14, it was advised in writing by the local governing body that the township then had "a more than ample supply of lots" having a frontage of less than 100 feet; that the Intervale Lake area, which includes plaintiff's lands, "deserves lots of 100 feet frontage," and "In order to benefit the township by having your development built up in 100 foot lots, * * * we are willing to reduce your improvement costs by supplying all the labor for installing whatever mains, hydrants, fittings, etc. are needed on your land for a water system, and by rebating to you over a period of years out of water rental received from your parcels fronting on the said water system thus installed on your land the cost of the materials needed in such system -- providing you revise your map in 100 foot frontage lots approved by the Planning Board." Reference was made to "sad cesspool and septic tank experiences in several parts of the Township where, before the adoption of a Zoning Law, lots smaller than 100 foot frontage have been built on." Plaintiff rejected the condition and thereupon brought this proceeding. The Superior Court ruled that "the extension of a water main by a municipality is a governmental function" calling for "the exercise of a degree of discretion on the part of the municipality," and there was no abuse of discretion here. We have a different view.
The action taken by the local authority was arbitrary and unreasonable. The water facility is a municipally-owned public utility established under legislative authority.
R.S. 40:62-47, et seq. The provision of water for the public and private uses of the municipality and its inhabitants is the exclusive province of the local agency; and it is elementary that the exercise of the power must be in all respects fair and reasonable and free from oppression. There can be no invidious discrimination in the extension of the service thus undertaken by the municipality as a public responsibility. Equal justice is of the very essence of the power. Impartial administration is the controlling principle. The rule of action must apply equally to all persons similarly circumstanced. There is a denial of the equal protection of the laws unless the water service be available to all in like circumstances upon the same terms and conditions, although the rule of equality may have a pragmatic application. Persons situated alike shall be treated alike. Washington National Insurance Co. v. Board of Review, 1 N.J. 545 (1949); Librizzi v. Plunkett, 126 N.J.L. 17 (Sup. Ct. 1940); Millville Improvement Co. v. Millville Water Co., 92 N.J. Eq. 480 (Ch. 1921); Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886); People v. Kuc, 272 N.Y. 72, 4 N.E. 2 d 939 (Ct. App. 1936).
There are cases holding that the establishment of a water system and its operation for protection against fire and other dangers to the public health and safety constitute a governmental function comprehended in the police power of the municipality. Chicago v. Ames, 365 Ill. 529, 7 N.E. 2 d 294, 109 A.L.R. 1509 (Sup. Ct. 1937); Canavan v. City of Mechanicville, 229 N.Y. 473, 128 N.E. 882 (Ct. App. 1920). But there is general agreement that the distribution of water by a municipality to its inhabitants for domestic and commercial uses is a private or proprietary function which in its exercise is subject to the rules applicable to private corporations. This is the rule in New Jersey. Lehigh Valley R.R. Co. v. Jersey City, 103 N.J.L. 574 (Sup. Ct. 1927), affirmed 104 N.J.L. 437 (E. & A. 1928); Fay v. Trenton, 126 N.J.L. 52 (E. & A. 1941). See, also,
Olesiewicz v. City of Camden, 100 N.J.L. 336 (E. & A. 1924).
A public water company is under a duty as a public utility to supply water to all inhabitants of the community who apply for the service and tender the usual rates. The obligation includes the establishment of a distributive plant adequate to serve the needs of the municipality and the enlargement of the system to meet the reasonable demands of the growing community. The utility is under a duty to serve all within the area who comply with fair and just rules and regulations applicable to all alike. The obligation is enforceable by mandamus. Bordentown v. Anderson, 81 N.J.L. 434 (E. & A. 1911); Woodruff v. East Orange, 71 N.J. Eq. 419 (Ch. 1906); Millville Improvement Co. v. Millville Water Co., cited supra. While it has been held that a municipality so engaged exercises a governmental discretion as to the extension of the water mains, governed largely by the extent of the need and economic considerations, the discretionary authority must be fairly and reasonably used; and the remedial process of mandamus may be invoked for an abuse of discretion if the extension be arbitrarily refused. Lawrence v. Richards, 111 Me. 92, 88 A. 92 (Sup. Jud. Ct. 1913); City of Greenwood v. Provine, 143 Miss. 42, 108 So. 284, 45 A.L.R. 829 (Sup. Ct. 1926); Lukrawka v. Spring Valley Water Co., 169 Cal. 318, 146 Pac. 640 (Sup. Ct. 1915). See, also, 47 L.R.A. (N.S.) 656; 56 Am. Jur. 964 et seq. It would seem that no sound distinction can be made, in respect of the extension of the service, between a municipality which has undertaken to provide water to the community and a water company performing the function of a public utility. In Chicago v. Northwestern Mut. Life Ins. Co., 218 Ill. 40, 75 N.E. 803 (Sup. Ct. 1905), it was held that when a municipal corporation not obliged to furnish water to its inhabitants undertakes to do so, it proceeds "not by virtue of the exercise of the power of sovereignty," but rather engages in "a business which is public in its nature, and belongs to that class of occupations or enterprises
upon which public interest is impressed," and is under a duty to act reasonably and not arbitrarily in the fulfillment of that function and to "serve all who may apply on equal terms."
Here, the provision of water to the plaintiff landowner was conditioned not by a circumstance of action or being reasonably bearing upon the exercise of the function, but rather by wholly alien considerations related to planning and zoning; and this was not within the province of the governing body. Compare Magnolia Development Co. v. Coles, 10 N.J. 223 (1952). There was then no suggestion that the enlargement of the service was indefensible on economic grounds. The need was not denied; nor was it asserted that the cost would be prohibitive or greatly disproportionate to the return. Indeed, the municipality offered to "reduce the landowner's improvement costs" by supplying labor at the outset and by rebating over a period of ...