96 N.J.L. 184 | N.J. | 1921
The opinion of the court was delivered by
The judgment appealed from, so far as it affects Hackensack and Temafly, was entered in a certiorari proceeding instituted by tlio Hackensack Water Company to review the action of the board of public utility commissioners fixing t-lie rates to be charged by that corporation to various municipalities that it supplied with water under powers conferred upon it by its charter. The situation developed bjr the proofs was this:
Oil the 28th. day of July, 1920, the water company formally notified forty-six of the municipalities supplied by it that on and after the 1st day o-f August then next the rates Charged for water would be increased to each one of them by seventeen and a half per cent. At the same time the
From tin's part of the judgment the Hackensack Improvement Commission and the borough of Tena,fly have appealed.
The first contention made before ns by these two municipalities is that the Supreme Court “had no jurisdiction to set aside tire order of the board of public utility commissioners.” The ground of this contention, is that the power of the Supreme Court in a case like that mow before us is a limited one, conferred upon it by section 38 of the Public Utilities act of 1911, as1 amended in 1918. Pamph. L. 1918, p. 305. By that statutory provision the court is given juris
Tills is a finding of fact, and the only question which this court will consider on a review of such a finding by the Supreme Court is whether there were anj' proofs whatever in the case to support it; for it is entirely settled that we will not consider alleged errors of fact in a review of a judgment of the Supreme Court, but only alleged errors of law. Vreeland v. Bayonne, 60 N. J. L. 168; Beecher v. Board of Street and Water Commissioners, 65 Id. 307; Tuckerton Railroad Co. v. State Board of Assessors, 77 Id. 614.
Looking at the proofs which were sent up with the writ of eei tio-rari, we fin'd sufficient evidence to support the Supreme Court’s determination of fact. These appellants, therefore, can take nothing by this ground of appeal.
The next contention is that the Supreme Court, by adjudging that these municipalities should pay to the water company the increased, rates fixed by the schedule of July 28th, 1920, pending a rehearing by the hoard or a review by this court, exceeded its jurisdiction because it lias no power to fix rates. But this contention is based upon a misapprehension of what the court really did. By the sixteenth section of the Public Utilities act, item d (Pamph. L. 1911, p. 377) every public utility corporation is required to file with the board a complete schedule of the rates it proposes to charge
The only other matter argued by these appellants is that the judgment under review is erroneous because it commands the board of public utility commissioners “to fix rates for the prosecutor in accordance with the principles laid down by this court in ’this cause.” It is contended that this part of the judgment is in conflict with the Public Utilities act which cleaxty intends that1 the powers of the board shall be free and unrestricted, except as limited by the statute itself. But we are not. willing to concede that it was the purpose of
Our conclusion, therefore, on the appeal of these two municipalities is, that so far as they are concerned, the judgment under review must be affirmed.
The appeal of the city of Hoboken from that part of the judgment which affects it: presents a different question from that which has already been considered. The proofs sent up with the writ show that some twenty years ago this municipality and the Hackensack Water Company entered into a contract by which the rates to he paid for the water furnished by the company to the municipality were fixed for the full term of the contract, which has not yet expired. That, in September, 1919, owing to the fact that the cost of labor and material had increased very greatly, the contract rate had ceased to be remunerative; and that for this reason, the company filed a petition with the board, asking it to increase the rates beyond those fixed by the contract to such an extent as to return a fair compensation to the water company for the capital invested and for the services rendered. That the hoard, after considering this petition, dismissed it on the ground that there was no such emergency confronting the company as would justify an alteration of the contract rate.’ That later, and during the hearing upon the question of the propriety of increasing the rate to the forty odd municipalities, specified in the schedule which has been referred to in the earlier part of this opinion, the company filed another petition asking the hoard to take up, as
The water company, by tire certiorari which it sued out, sought to review not only the propriety of the order of the board fixing the rates to be charged to the forty odd municipalities, but also that part of its order which refused to consider its application with relation to the Hoboken rate. The Supreme Court, dealing with this phase of the case, adjudged that the order of the board determining that no action should be taken with respect to the rates paid by the city of Hoboken be set aside, that the board take up the consideration of this matter and fix a proper rate to be charged to that municipality, and “file a rate charging the city of Hoboken the same surcharge as it makes to every other of its consumers;” and that, pending the rehearing or an appeal to this court, Hoboken pay the same rate as the other municipalities.
On this appeal Hoboken contends, first, that the board has no authority to override a contract rate fixed by the agreement of the company and municipality; and second, that the Supreme Court is without power to compel the board to fix a rate charging the city of Hoboken the same surcharge as it makes to every other of its consumers.
The first point, we think, must be decided adversely to the appellant’s contention. It may be conceded that neither the city of Hoboken nor the water company can alter this contract without the consent of the other party to it, but as was said by this court in Atlantic Coast Electric Railway Co. v. Public Utility Board, 92 N. J. L. 168, 173, a contract of this kind imposes no restriction on the sovereign power of the state to fix just and reasonable rates as subsequent conditions may make desirable. It is a contract subject to
Turning to the second proposition, we have no doubt of the power of the Supreme Court to send the case back to the board where it appears to the court that the action complained of was the result of a misapprehension by the board as to the duty imposed upon it by the statute with relation to the matters contained in the water company’s petition. We consider, however, that the court exceeded its jurisdiction in commanding the board to fix the same rate to be charged to the city of Hoboken as that fixed for every other of the company’s municipal consumers. The power to fix the rate is vested in the board' of public utility commissioners by the statute, and the twenty-eighth section declares that when the Supreme Court shall order a rehearing the board shall thereupon proceed to it on the testimony theretofore taken before it, and upon which the order under review is based, and upon such additional testimony, if any.
We conclude, therefore, that the judgment of the Supreme Court to the extent just indicated must be reversed.
What we have just said is equally applicable to that part of the judgment which authorizes the Hackensack Water Company, to charge the city of Hoboken the same rate which it charges, the other municipalities in this litigation, pending an appeal or a rehearing. The effect of the judgment setting aside the order of the utilities board was, as we have already indicated, to restore tire conditions which existed prior to the making of that order. The city of Hoboken was a.t that time paying the contract rate, and that contract rate was left unaltered by the board. Tire Supreme Court was without power to' substitute what it considered a fair rate for that which then existed, and its attempt to do so was extrajudicial for the reason already indicated.
The water company undertakes to justify this part of the judgment upon the theory that it is warranted by a provision contained in the latter part of section 38 of the Public Utilities act, as amended in 1918, which provides that “The Supreme Court may order that such rehearing be had upon such terms and conditions as are reasonable.” But this provision must be construed in the light of the situation with which the legislature was dealing, and that is a ease where a party claiming to be aggrieved by the order of the board sought to have that order set aside by certiorari and a re-
The judgment under review, so far as it affects the city of Hoboken, will be reversed to the extent indicated.
On the appeal of Hackensack Improvement Commission and the borough of Tenafly:
For affirmance — Tiie Chancellor, Chief Justice, Teenchard, Parker, Bergen, Minturn, Kaliscit, Black, White, Heppeniieimkr, Williams, Gardner, Ackerson, Yan Buskirk, JJ. 14.
For reversal—None.
On the appeal of the city of Hoboken:
For affirmance—Xone.
For reversal—The Chancellor, Chief Justice, Trenoí lard, Parker, Bergen, Minturn, Kaliscti, Black, White, Heppenheimer. Williams, Gardner, Ackerson, Van Buskirk, JJ. 14.