On certification to Superior Court of New Jersey, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the Court was delivered by Handler, J.
[82 NJ Page 247] The issue presented by this case is whether the City of Plainfield can compel Public Service Electric & Gas Company (PSE&G) to continue to supply free lighting service to municipal buildings pursuant to a contract entered into in 1898. The utility contends that the contract is not enforceable because it violates the statutory prohibition against discriminatory and unreasonable rates and preferences, L. 1911, c. 195, § 18, codified as amended (L. 1930, c. 35, § 1) at N.J.S.A. 48:3-1 and 48:3-4. The municipality asserts, however, that its contractual rights cannot be altered or impaired because the contract was entered into prior to the enactment of that statutory prohibition. It relies primarily on a 1916 judicial decision, Public Service Elec. Co. v. Board of Public Utility Comm'rs, 88 N.J.L. 603 (E. & A.), which involved claims between these same parties concerning
the same contractual provision wherein it was determined that the City was entitled to prevail under the contract.
In July 1898 the City of Plainfield enacted an ordinance designating certain streets in the city along which the Plainfield Gas & Electric Light Company, the predecessor of PSE&G, could place and maintain poles and conduits for the distribution of electric service. In November 1898 the utility and municipality entered into a written agreement relating to the manner in which such service was to be furnished. This contract provided that so long as the utility uses city streets it shall "light by electricity, free of charge" certain designated municipal buildings as well as all other municipal buildings generally, including any to be owned or used by the City in the future.*fn1
Pursuant to this provision of the contract, the utility furnished free electric lighting to several municipal buildings, some of which were acquired after 1898. In December 1913, however, Public Service Electric Company, successor to Plainfield Gas & Light Company, notified the City that it would discontinue lighting the City's buildings free of charge as of February 1, 1914. The utility believed that this action was required by the Public Utility Act of 1911, L. 1911, c. 195, § 18, which provided that "[n]o public utility . . . shall [m]ake, impose or exact any unjust or unreasonable, unjustly discriminatory or unduly preferential . . . rate," id. § 18(a), or "[m]ake or give, directly or indirectly, any undue or unreasonable preference or advantage to any person or corporation or to any locality," id. § 18(d).
In response to this notification, Plainfield petitioned the Board of Public Utility Commissioners (the Board), asking that the utility be compelled to comply with the terms of the 1898 contract. The Board issued an order directing the utility to
comply with the contract terms. The utility then filed suit to set aside the Board's order. The trial court ruled in favor of the utility, finding that, while the performance required by the contract had been made unlawful by the 1911 legislation, the Board nevertheless lacked statutory authority to order specific performance of contracts. Public Service Elec. Co. v. Board of Public Utility Comm'rs, 87 N.J.L. 128, 130-131 (Sup.Ct.1915).
Plainfield appealed to the Court of Errors and Appeals, which affirmed the lower court's judgment vacating the Board's order compelling specific performance of the 1898 contract. The City, nevertheless, prevailed in its legal contention under the decision of the Court of Errors and Appeals. While the Court confirmed the lower court's ruling that the Board's order was invalid because it had gone beyond its statutory powers in ordering specific performance of the 1898 contract, 88 N.J.L. at 608-609, it rejected the lower court's reasoning with respect to the applicability of the 1911 act, finding the legislation to be "entirely prospective and not at all retroactive," id. at 607.
Following that decision, the utility resumed, and has since continued to provide, free lighting service to a number of city-owned facilities. In September 1974 Plainfield notified PSE&G that three additional buildings should be included under PSE&G's contractual obligation to furnish free lighting. The utility rejected the request, maintaining that these three buildings did not fall within the 1898 contract. In addition, it questioned whether the contract could still be enforced with respect to any municipal buildings, even those then receiving free service. Since 1975 PSE&G has refused to furnish free service for the three buildings under the 1898 contract and the City has withheld payment of substantial portions of its electric lighting and power bills attributable to these three buildings.
Plainfield filed a complaint in Superior Court for declaratory judgment to determine whether PSE&G is required to provide free lighting service for the three additional buildings -- a library, a youth center, and a museum -- and, if so, whether the
City is entitled to a credit against future billings for the partial amount paid to PSE&G for lighting each of these buildings since it was acquired by Plainfield. PSE&G by answer denied that the three additional properties fall within the coverage of the 1898 contract, and further asserted that the provisions of the contract regarding free lighting service are illegal; it also filed a counterclaim asking the court to hold the agreement unenforceable. In answer to PSE&G's counterclaim, Plainfield pleaded the 1916 decision of the Court of Errors and Appeals as a bar to any attack on the enforceability of the 1898 contract.
The trial court ruled in favor of Plainfield on its complaint and on PSE&G's counterclaim, concluding that the three new facilities fell within the language and intent of the 1898 contract. It emphasized, however, that PSE&G's contractual obligations to provide free service extended only to electric lighting, not to all electric service. It found that the 1898 contract obligated PSE&G to furnish free lighting service for each of the three additional buildings. Because this obligation had not been met in the past, the court ruled that Plainfield would be allowed to make a claim against future billings for al sums previously paid to PSE&G for lighting each building since the date it had initially been occupied for municipal purposes. PSE&G filed a notice of appeal with the Appellate Division. In an unreported per curiam decision, that court affirmed the trial court's decision on the ground that the 1916 decision of the Court of Errors and Appeals was binding. This Court granted PSE&G's petition for certification. 79 N.J. 487 (1979).
The essential issue in the case is whether particular provisions of the Public Utility Act, viz. N.J.S.A. 48:3-1 and 48:3-4, should be applied to invalidate unjustly discriminatory utility rates or unreasonable preferences set by a contract between a public utility and a ...