134 N.E. 828 | NY | 1922
Lead Opinion
The Rochester Gas and Electric Corporation petitioned the public service commission for permission to increase the price of manufactured gas. The commission made an order fixing the rate at $1.30 per thousand cubic feet of gas in addition to a "service charge" against each consumer of forty cents per month. The service charge alone is the subject of this controversy. The city of Rochester, one of the consumers affected by the *44 order, prays an injunction directed to the commission and the company. The submission restricts the controversy to three questions:
First. Did the Public Service Commission of the state of New York, second district, have authority and jurisdiction to order or permit the service charge of forty cents per consumer per month as provided in its orders of July 1, 1920, and October 14, 1920?
Second. Is such service charge unjust and unreasonable or unjustly discriminatory, regardless of the amount thereof?
Third. Does such service charge constitute "rent on a gas meter" within the meaning of section 66 of the Transportation Corporations Law, and is the charging and collection thereof consequently barred by such section?
If these questions are answered in favor of the plaintiff, the stipulation is that an injunction is to issue. In view of this stipulation, we do not attempt to consider whether the remedy would be held appropriate if objection had been made to it. We pass directly to the merits.
The expenses of a gas company are incurred partly in manufacture and partly in distribution. Its income must be adequate to reimburse it for the one outlay as for the other. Expenses of manufacture may be apportioned among consumers in proportion to the quantity of gas consumed. Expenses of distribution in their division may follow other lines. Some remain constant whether consumers are few or many. Others increase or diminish at a uniform rate with the number of the patrons. A service charge is an attempt to make the incidence of the burden as wide as the incidence of the benefit. From all the items included in the cost of distribution it segregates, and divides per capita, those dependent upon numbers. Such items there always are. Whenever a building is connected with a main, there is expense which continues while the connection is maintained. This expense will be the same though only a trifling quantity *45 of gas, or even none at all, is used by the householder requiring the connection. In the absence of a service charge or some similar device, there is the benefit of facilities, which would otherwise be needless, without the burden of contributing to the cost of supplying or maintaining them. The householder who closes his dwelling for the summer, and pays nothing in the interval, shifts the cost of maintenance incurred in his behalf to the householder whose dwelling is open throughout the year. The occupant who consumes something, but not enough to pay his share of the expense, is carried by his neighbors when rates are increased to compensate for profitless accounts. Sometimes this result is avoided through the device of a minimum bill, which differs from a service charge in this only, that the charge is absorbed and disappears when the minimum is reached. For the man who does not take anything, or less than the amount prescribed, the two devices are the same. Each is an expedient for maintaining the equilibrium between service and requital.
With this statement of the problem, the first subject of inquiry will be the jurisdiction of the commission. The argument is made that jurisdiction is limited to prescribing the charge for gas as distinguished from the charge for service. We find no such limitation in the statute. "Every gas corporation" is required to "furnish and provide such service, instrumentalities and facilities as shall be safe and adequate and in all respects just and reasonable" (Public Service Commissions Law, sec. 65, subd. 1; Consol. Laws, ch. 48). "All charges made or demanded by any such gas corporation, * * * for gas, * * * or any service rendered or to be rendered, shall be just and reasonable and not more than allowed by law or by order of the commission" (sec. 65, subd. 1). "Every unjust or unreasonable charge made or demanded for gas, * * * or any such service, or in connection therewith, or in excess of that allowed by *46
law or by the order of the commission is prohibited" (sec. 65, subd. 1). We are told that the plaintiff, being a public service corporation, is bound to serve, and that since it is bound to serve, it may not charge inactive accounts for maintaining facilities for service. The conclusion does not follow from the premise. The law imposes the duty to establish connections for the householder who demands them, but it does not impose the duty either to install or to maintain gratuitously. No one is under an obligation to permit connections to be made between his building and the mains. If he demands the facilities with the added expense that follows, he thereby invites a service, and must be numbered among those for whom service is maintained. The legislature has nowhere said that benefit shall be divorced from burden. On the contrary, permission is expressly given to assess upon the householder the entire cost of installing service pipes beyond the street line (Transp. Corp. Law, sec. 62; Consol. Laws, ch. 63; Moore v. Champlain Electric Co.,
We pass then to the second question whether the service charge is "unjust and unreasonable or unjustly discriminatory, regardless of the amount thereof." The statute prohibits a gas corporation from charging, demanding, collecting or receiving "from any person or corporation a greater or less compensation for gas * * * or for any service rendered or to be rendered or in connection therewith * * * than it charges, demands, collects or receives from any other person or corporation for doing a like and contemporaneous service with respect thereto under the same or substantially similar circumstances or conditions" (Public Service Comm. Law, sec. 65, subd. 2). Formal equality there indisputably is. The service charge is imposed, not on some only, but on all, and on all at the same rate. Discrimination, if it exists, must inhere in remoter incidents or consequences. We start with the recognition of the truth that perfect equality in operation as well as in form is not to be attained by any scheme of rates. Classification is not forbidden, if founded upon reason, and not upon caprice or favor. There are those who think that a schedule which does not impose a service charge is discriminatory, since it shifts upon some consumers the burden of carrying the others. Occasional hardships there will be with any plan. It is a question largely of degree. The argument against the charge seems to rest upon the assumption that unjust discrimination inheres in every rate that is not a flat or uniform rate for every foot of gas supplied. The scale of charges must not be graduated, it is said, so as to adapt the *48
payment to the cost. But that has never been the rule of rate making for public service corporations. Varying charges are not prohibited always and everywhere, but only varying charges for like services in substantially similar circumstances or conditions. The commuter does not pay the same rate as the occasional traveler. The shipper by carload is not charged as the shipper of a single package. Telephone rates per message are lowered as the number of messages increases (Cf. N.Y. TelephoneCo. v. Siegel-Cooper Co.,
With these provisions in force, we see no escape from the conclusion that a service charge, reasonably computed, and moderate in amount, does not involve per se an illegitimate discrimination between classes of consumers. Into the computation of this charge, we are not required to enter, except in so far as it may be thought to involve a rent for the use of meters. The question propounded to us in the submission is whether such a charge is unlawful "regardless of the amount thereof." We do not mean to suggest that the classification is one which the commission must accept. Considerations of advantage are to be weighed with those of inconvenience. The balance may be found to be in favor of other methods of graduation, of other groups and classes. That is a question calling for the exercise by the commission of its own judgment and discretion. The courts will not interfere with the conclusion except to safeguard the consumer against arbitrary power (People ex rel. N.Y. QueensGas Co. v. McCall,
The conclusion thus reached is confirmed with impressive force by the judgments of courts and commissions in other jurisdictions. Service charges have been sustained by the courts of Louisiana and Rhode Island (State of Louisiana v. Sloan,
We reach the third question, whether the service charge constitutes "rent on a gas meter" within the meaning of section 66 of the Transportation Corporations Law (Cons. Laws, ch. 63). This section is in substance a re-enactment of a statute passed in 1868 (L. 1868, ch. 253), long before the days of public service commissions. In its present form it reads as follows: "No gas light corporation in this state shall charge or collect rent on its gas meters, either in a direct or indirect manner, and any person, party or corporation violating this provision shall be liable to a penalty of fifty dollars for each offense, to be sued for and recovered in the corporate name of the city or village where the violation occurs, in any court having jurisdiction, and when collected to be paid into the treasury of such city or village and to constitute a part of the contingent or general fund thereof." The objection that this statute has been violated would not, if it were sustained, affect the service charge as a whole. At the utmost it would require a reduction slight in extent and easily computed.
In estimating the expenses of the business chargeable to the cost of service, the commission has included the cost of installing meters (part of an item of $17,683) *51 and the cost of repairing them ($21,925). The gas company wished to add a return of eight per cent on its investment in the meters, and also a sum sufficient to repair the yearly depreciation, but these items were excluded. No other item has any relation to meters, except one which includes the cost of reading them, and which is obviously a payment not for a thing, but for a service. The aggregate of all the items entering into the computation of the charge is $373,794, which has been divided by 80,000, the number of subscribers, in order to arrive at theper capita apportionment.
We find no charge for rent within the meaning of the statute. Rent is the periodic return for the privilege of use (Seligman, Principles of Economics, pp. 205, 206; cf., with reference to the varying uses of the term, 2 Taussig, Principles of Economics, pp. 63, 124). The rental value of a machine when capitalized for a term which varies with durability of use is equal to the capital value or the price (Seligman, supra, p. 374). There may, of course, be rents that will not yield a profit, i.e., a surplus over expenses, for the subject-matter may be incapable of earning an adequate return. None the less, profit within the limit of capacity is typically and normally the end and aim of the exaction. "The usual rule is that the rent of anything shall be somewhat in proportion to its cost or value" (HISCOCK, J., inCity of Buffalo v. Buffalo Gas Co.,
We think it would be a strained and forced construction that would find in the distribution of such expenses among the entire body of consumers the quality of rent. Such license of construction is surely not permissible to extend to doubtful situations the prohibitions of a penal statute (U.S. v.Wiltberger, 5 Wheat. 76; U.S. v. Bathgate,
A final consideration remains to be noted. The query was propounded in the court below, what would happen to the consumer in the event that payment was not made? The court answered the query by saying that the meter would be removed. This was thought to prove that the charge must be regarded as equivalent to rent, even though it omitted the cost of installation and repair. Such an argument proves too much. If the price of gas is not paid, there will be the same result. The meter is removed whenever the customer is in default (Transp. Corp. Law, sec. 65). If the right to remove is the concomitant of rent and nothing else, the company makes a charge for rent when it makes a charge for anything.
The judgment should be reversed, and judgment directed in favor of the defendant, with costs in both courts.
Dissenting Opinion
I think that the service charge as described herein is discriminatory and an indirect method of collecting rent for meters. The fact that all are charged alike for widely different degrees of service creates the discrimination. A uniform compensation for service is provided when the service to consumers is unequal. The payment is distributed pro rata among the consumers and so bears no relation to the actual value of the services rendered. It is an arbitrary imposition in addition to the charge for gas consumed. A consumer to whom no service is rendered, for whom no installation or repair work is done, except nominal services for reading meters, sending out bills and the like, ready and able to pay for all gas consumed and all services actually rendered to him, may be deprived of his supply of gas if he refuses to pay the service charge. If he uses no gas, he certainly requires little or no service; if he uses much gas and requires no service, the charge is the same as for him who has much service.
Again what is this charge but an indirect charge for *55 rent of a meter within the meaning of section 66 of the Transportation Corporations Law? It is not economic rent but it is neither a commodity charge nor a charge for services actually rendered. It is a uniform charge for the privilege of having the gas pass through the meter. If it is not rent, it is what rent would be and the equivalent of rent. It is a flat charge for the privilege of using gas as distinguished from actual services rendered or gas consumed.
I dissent.
HISCOCK, Ch. J., McLAUGHLIN, CRANE and ANDREWS, JJ., concur with CARDOZO, J.; POUND, J., reads dissenting memorandum, with whom HOGAN, J., concurs.
Judgments revered, etc.