
    Edward J. Arsenault & another vs. City of Peabody (and a companion case).
    July 25, 1978.
    
      Philip Litman for the plaintiffs.
    
      Maurice J. Ferriter for the defendant.
    
      
       John Shynk vs. City of Peabody.
    
   In view of the plaintiffs’ concession (contrary to the position originally taken by them in the Superior Court) that G. L. c. 164, § 94G, has no application to a municipal power plant such as that operated by the defendant (see Gas & Elec. Commrs. of Middleborough v. Department of Pub. Util., 363 Mass. 433, 437-438 [1973]), the only remaining legal issue raised by these cases appears to be whether the defendant’s use of a fuel adjustment clause, pursuant to which the unit cost of electricity may fluctuate (and has fluctuated) from month to month with fluctuations in the cost of fuel used in the production of electricity sold to customers, violates the provisions of G. L. c. 164, § 58, as amended by St. 1964, c. 401, which require that changes in the "fixed schedules of prices for gas and electricity” furnished by a municipality shall not occur more often than once in three months, shall take effect on the first day of a month, and shall first be advertised in a newspaper published in the municipality. On the authority of Consumers Organization for Fair Energy Equality v. Department of Pub. Util., 368 Mass. 599, 605-608 (1975), we hold that it does not. Several other issues which have been tentatively raised at various stages in these proceedings have been waived, either in this court or in the Superior Court, or depend on facts not established by the records in these cases.

Judgments affirmed.  