Eastwood, Freund and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
An action in lieu of mandamus brought by plaintiff to compel the defendant municipality to extend, at the municipality's expense, certain of its water mains, eventuated in a judgment adverse to plaintiff and it appeals therefrom.
The plaintiff is the owner of certain lots of land fronting on unimproved streets in the defendant township. It intends to develop and sell the lots for residential construction. Presently, there are no houses on the lots nor is there any specific assurance as to when such dwellings will be erected.
Pursuant to enabling legislation, the municipality operates a water supply system. As the result of a previous judicial proceeding between the parties, reported in 10 N.J. 229 (1952), the defendant was compelled to extend the water main some 600 feet in one of the streets abutting the plaintiff's development area. By the instant proceeding plaintiff sought to compel the main extension to other areas. In the area there are 43 other lots, whose owners are not parties to this action.
By a letter to the defendant in November, 1950, the plaintiff requested an extension of the mains 3,060 feet to certain designated areas. On December 16, 1950, plaintiff again forwarded a letter request for the desired extension. No further action was taken in the matter. Thereafter, on August 5, 1952, the defendant township enacted an ordinance
requiring that developers install water mains, and the like, at their own expense, where extensions are sought.
On August 8, 1952, the plaintiff again requested the main extensions in question and the township has sought to impose the conditions of the aforementioned ordinance. Plaintiff's action not only sought to compel the municipality to extend its water mains without complying with the provisions of the 1952 ordinance, but also to set aside the ordinance as invalid.
The plaintiff argues that the denial of water main extensions is unreasonable, discriminatory and an arbitrary abuse of power; that the ordinance in question was not applicable to plaintiff's request, since it predated the passage of the ordinance; that the prior judgment between the parties estops defendant from denying the extensions sought and that the ordinance is invalid in its attempt to exact the cost of main extensions from the applying developer.
The defendant municipality contends that the installation of main extensions is a governmental function and that mandamus will not lie to compel that act unless there is a plain abuse of discretion by the municipality in its refusal; that the ordinance in question is valid and applicable to plaintiff's case; that the municipality is under no duty to extend its water mains, where, as here, no immediate or prospective need is shown to warrant the expense and that the ruling of the Supreme Court in the prior case between the parties is not controlling under the circumstances of the instant action.
The defendant's water facility is a municipally owned public utility established under legislative authority of R.S. 40:62-47 et seq. There is authority for the position that the establishment of a water supply system and its operation for the protection of the public health and safety is a matter comprehended in the police power of a municipality and as such, is a governmental function.
In the prior case between the present parties, Mr. Justice Heher, speaking for the Court, ...