196 A.D. 644 | N.Y. App. Div. | 1921
Defendants appeal from an order made at Special Term, entered in the New York county clerk’s office on March 14, 1921, granting an injunction pendente lite, restraining the defendants from imposing or collecting any charge in excess of their “ General Rate and Rate A [retail] schedules * * * effective July 1, 1917,” and particularly from imposing and collecting any charge based upon standard contract riders Nos. 37 and 22 of defendants, The New York Edison Company and The United Electric Light and Power Company, respectively, both filed November 1, 1920, and effective December 1, 1920, and upon the -defendants’ schedules, revised sheets Nos. 33 (Edison Company) and 22 (United Company), filed November 26 and 27, 1920, respectively, and effective December 1, 1920.
The defendants were joined as parties by reason of their affiliation with each other, the stock of both corporations being almost entirely owned by the Consolidated Gas Company and the directorate being a common one. An understanding of the meaning of the injunction necessitates a brief recital of the facts touching the various rates under which the defendants have been operating since 1905. Prior to July 1, 1905, there was no statutory maximum limiting the rates chargeable by electrical corporations. By chapter 732 of the Laws of 1905 such companies were limited to the maximum rate of ten cents per kilowatt hour. By chapter 429 of the Laws of 1907 the Public Service Commission was created and given jurisdiction to regulate rates and practices of electrical and other public service corporations. This act, known as the Public Service Commissions Law, was amended and revised in
In October, 1911, one George Stadtlander and upwards of 100 other consumers complained to the Commission as to the rate charged by the defendant New York Edison Company. A proceeding was instituted upon this complaint, known as case No. 1395. In April, 1912, one Julius Ewoldt and upwards of 100 other consumers made a similar complaint against the defendant New York Edison Company, resulting in another proceeding known as case No. 1492. Thereafter these proceedings were consolidated and hearings were held therein up to February, 1915. In 1913 two other proceedings, known as 1798 and 1800, were instituted by the Public Service Commission with respect to the rates and practices of said defendant and the United Electric Light and Power Company. These proceedings were similarly consolidated. On November 17, 1914, the Merchants’ Association requested the Public Service Commission to institute a valuation of the Edison Company’s plant and property, and the association was thereupon permitted to intervene as a party complainant in cases Nos. 1395 and 1492. On February 9, 1915, hearings in all these cases were closed. An order of the Public Service Commission was made in the consolidated proceedings on March 16, 1915, fixing a maximum rate of eight cents per kilowatt hour as chargeable by the New York Edison Company for the period of three years commencing May 1, 1915. It appears that there was no separate order prescribing a rate for the defendant United Electric Light and Power Company. Both these defendants, however, filed revised rate schedules fixing a maximum eight-cent rate to take effect May 1, 1915. On August 21, 1916, the mayor of the city of New York applied to the Commission to reopen cases Nos. 1395 and 1492. The
On November 1, 1920, defendants filed with the Commission and published what have been called the standard contract riders No. 37 and No. 22, respectively, each of which reads as follows: “ Further that the price for each kilowatt hour of electric current supplied under this contract shall be subject each month to an addition or a deduction of $.0005 (50/1000 of a cent) per kilowatt hour based on each ten per cent (10%) of increase or decrease from the normal price for bituminous coal of $3.00 per long ton to [The New York Edison Company] [The United Electric Light and Power Company] f. o. b. New York Harbor, as filed with the Public Service Commission for the First District.” According to the defendants, these riders were duly posted and kept open to public inspection in each of the defendants’ offices where applications for service are received, in. accordance with the rules prescribed by the Commission for the posting of schedules. In corroboration of that fact, defendants submitted affidavits from the various managers of the several offices of the defendants and photographs showing how and where the schedules were posted.
On November 26 and 27, 1920, the respective defendants filed with the Commission to become effective December 1, 1920, and published their definitive coal adjustment charge schedules, upon what were called revised sheets No. 33 of the Edison Company and No. 22 of the United Company, fixing the surcharge upon -the rate for the month of December, 1920, reading as follows in each case; “ Actual cost of coal to the New York Edison Company for the month of October, 1920,
According to the affidavits submitted in behalf of the defendants, it appears that these definitive coal adjustment charge sheets were duly posted and kept open to public inspection in all of the defendants’ offices where applications for service are received in the manner prescribed by the rules of the Commission.
The action brought by plaintiff is solely based upon the theory that the filing in the month of November, 1920, with the Public Service Commission by each of the defendants of the various revised sheets just referred to was without authority of law. The claim of plaintiff in this respect is that the Commission had fixed seven cents per kilowatt hour as a maximum rate, and that the defendants had no right to increase the rate by filing the rate schedules above referred to. Plaintiff also contends that, in any event, even if the companies had a right to increase their own rates, they could do so only by filing and publishing amended rate sheets, and that the sheets relied upon by the companies are not rate sheets; that they are invalid and unauthorized, and further that there has been no publication of the rate as required by law. The case, therefore, does not involve the consideration of any question as to whether or not the rates charged by the defendants are justified as giving merely an adequate return upon the capital invested by the defendants in their business and the cost of production of electricity furnished by them.
The position of the defendants in the matter before us is that the rates were posted strictly in accordance with the regulations of the Commission and pursuant to its order made
Defendants further claim that when they consented to a reduction of the rate to seven cents per kilowatt hour, effective as of July, 1917, the average cost of coal was three dollars per long ton f. o. b. New York harbor, and that thereafter and during the war period the price of coal steadily kept on increasing, and that in the fall of 1920 it reached eight dollars, forty-three and nine-tenths cents per long ton f. o. b. New York harbor.
From the papers before us there hardly seems to be room for serious difference of opinion that the procedure of filing coal riders was authorized by the Commission by an express order, and that the basis upon which the order was made was that the cost of coal would automatically fix the rate. either by increasing or decreasing it monthly, dependent upon the cost of coal for a given month. It is claimed by the defendants that this automatic increase or decrease of rate is in all instances controlled by and subject to the maximum eight-cent rate fixed by the Commission, and that up to the present time the increases made from time to time have not reached the maximum.
Plaintiff relies upon a recent decision by Mr. Justice Benedict in the case of City of New York v. Brooklyn Edison Company, Inc. (N. Y. L. J. March 12, 1921). In that case the court held that the defendant had exceeded the rates fixed by the Public Service Commission on December 22, 1916, and, therefore, it differs essentially from the facts in this case, in which the defendants clearly have not exceeded the .eight-cent maximum rate.
Without, however, attempting to determine the question as to whether or not the defendants proceeded strictly in accordance with the orders of the Public Service Commission made within the scope of its authority, and whether they
Section 71 of the Public Service Commissions Law provides that the mayor of a city or 100 consumers may make a complaint in writing to the Commission as to the price charged for electricity by any company, and that the Commission “ shall investigate as to the cause for such complaint ” and hold public hearings thereon. Section 72 of the same law
Section 74 of the Public Service Commissions Law contains a provision for summary procedure by the Commission to enforce compliance on the part of the public service corporations with provisions of law or orders issued by the Commission. (Public Service Comm. v. Brooklyn Borough Gas Co., 104 Misc. Rep. 315; 189 App. Div. 62; Willcox v. Richmond L. & R. R. Co., 142 id. 44; 202 N. Y. 515.)
On the other hand, if a complaint be made to the Commission upon which it refused to act, its refusal is then subject to review on certiorari at the instance of the complaining consumer or the municipality. (People ex rel. Joline v. Willcox, 129 App. Div. 267; affd., 194 N. Y. 383.)
It is also to be borne in mind that the claims and charges
In Metzger v. New York State Railways (168 App. Div. 187) the plaintiff boarded a train operated by the defendant at a place known as Glen Edith, en route for Rochester. The plaintiff tendered eighteen cents, which was the amount of the fare from Glen Edith to Rochester. Plaintiff had no ticket, because it appeared the defendant maintained no ticket office at Glen Edith. The conductor nevertheless insisted upon the payment of the excess charge of ten cents, after informing the plaintiff that in case cash fare was paid for more than five cents, the regulations and tariff of the company provided for an excess charge of ten cents for which he would be given a duplex ticket receipt, redeemable at any office of the company if presented within ninety days. Plaintiff refused to pay such excess and was notified by the conductor that he would be obliged to leave the car unless he made such payment. The car was stopped at a regular stopping place; the passenger was removed therefrom, but without any unnecessary force. The court held in its opinion that “ the plaintiff's theory of the action is, that the regulation requiring the excess fare was unreasonable, and hence that plaintiff was justified in refusing to pay it. The defense relies upon the fact that the defendant had filed its tariffs, providing for such excess, with the Public Service Commission; that such regulation was reasonable, and that the refusal of plaintiff to comply therewith justified his removal from the car. Plaintiff has had a verdict, and from the judgment founded thereon and the order denying a new trial, this appeal is taken.” The court reversed the judgment, holding that the “ question of the propriety of the rule seems to be confided for initial determination to the Public Service Commission.”
In Baltimore & Ohio R. R. v. Pitcairn Coal Co. (215 U. S. 481, 493), which involved a question of certain regulations made in the exercise of the administrative powers of the Interstate Commerce Commission, the court said: “ When the situation is thus defined we see no escape from the conclusion that the grievances' complained of were primarily within the administrative competency of the Interstate Commerce Commission,-
It follows that the plaintiff was not entitled to any injunctive relief against the defendants, and the order appealed from is reversed, with ten dollars costs and disbursements, the injunction heretofore granted vacated and set aside, and the motion for the injunction is denied, with ten dollars costs.
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Amd. by Laws of 1920, chap. 542.— [Rep,