248 A.D. 39 | N.Y. App. Div. | 1936
This case was argued with an appeal from an order denying an alternative order of prohibition against the Public Service Commission and the Jamaica Water Supply Company, on the application of the city of New York, decided herewith. (248 App. Div. 36.)
As appears in that case, the Public Service Commission instituted a proceeding to determine, among other things, the hydrant rate to be paid by the city of New York to the water company for furnishing water and hydrant service in parts of the city for fire protection and other public uses. Due notice was given, but the city did not appear therein; and after hearings held and proof taken, the Commission fixed a yearly rate of forty dollars per hydrant to be collected by the water company from the city.
The city denies the jurisdiction of the Public Service Commission to fix such rate, and alleges, among other things, that the power to fix the rate for the public and private use of water by the city of New York and its inhabitants is lodged in the first instance in the commissioner of water supply, gas and electricity; that in case of
The statute provides that the Supreme Court “ shall have power in any action or proceeding to declare rights and other legal relations,” and may grant final judgment therein. (Civ. Prac. Act, § 473.) But whether there should be such a declaration, or such a judgment entered, is discretionary. (Rules Civ. Prac. rule 212.) Where a declaratory judgment is useful and necessary it will be granted; but apart from such reasons it should not be employed. And where existing forms of action are reasonably adequate, the discretionary remedy should be withheld. (Newburger v. Lubell, 257 N. Y. 383, 386; Colson v. Pelgram, 259 id. 370, 377; James v. Alderton Dock Yards, 256 id. 298, 305; Socony-Vacuum Oil Co., Inc., v. City of New York, 247 App. Div. 163.) These authorities make it evident that the Special Term would have been justified in dechning jurisdiction and dismissing the action because of its form alone.
On the merits, the city has no inherent rate-making power. (People ex rel. Village of South Glens Falls v. Public Service Commission, 225 N. Y. 216, 223; Matter of Niagara, Lockport & O. P. Co. v. Prendergast, 229 App. Div. 295, 297.) But the city contends that the power to make water rates for it and its inhabitants is found in section 472 of its charter. That section provides that the commissioner of water supply, gas and electricity is authorized to examine into the source of water supplied by private companies supplying the city or its inhabitants, to establish rules and regulations in respect thereof, to exercise superintendence, regulation and control in respect of the water supply of such companies, “ including rates, fares and charges to be made therefor.” And the section
On the other hand, article 4-B of the Public Service Law (Laws of 1931, chap. 715) placed water companies under the jurisdiction of the Public Service Commission. And section 89-b of that article brings within the jurisdiction of the Commission “ every water-works corporation,” and provides that rates shall be reasonable “ and not more than allowed by law or by order of the Commission.” And further, it is provided that every charge “ in excess of that allowed by law or by the order of the Commission is prohibited.” Section 89-c gives the Commission general supervision of all waterworks corporations, and of their equipment for furnishing water “ for domestic, commercial or public uses ” (Subd. 1); and to examine and investigate the methods employed in supplying water (Subd. 2); and that it may prescribe uniform accounts (Subd. 3). And subdivision 4 provides that the Commission may upon its own motion, after hearing, determine and prescribe “ just and reasonable rates, charges and classifications thereafter to be enforced for the service to be rendered, notwithstanding that a different rate or charge has heretofore been prescribed by general or special statute, contract, grant, franchise, condition, consent or other agreement.”
The appellant laid stress on subdivision 10 of section 89-c as indicating that the Commission’s power did not affect the rights of a municipality to fix rates. It will be observed that subdivision 10 has reference only to the “ power to require ” companies to file and keep open to public inspection schedules of all rates to be charged and all forms of contracts or agreements relating thereto. Then follows another provision relied upon particularly by the appellant, viz., “ this subdivision shall not apply to State, municipal or Federal contracts.” As above noted, no contract is alleged to exist between the city and the water company, and hence there is
The judgment and order should be affirmed, with costs.
Hill, P. J., Rhodes, Crapser and Bliss, JJ., concur.
Judgment and order affirmed, with costs.