195 A.D. 1 | N.Y. App. Div. | 1921
Lead Opinion
Ordinarily this court does not review the discretion of the Special Term in granting or refusing an injunction pendente lite, on appeal from the order, but will leave the parties to the trial. (Smith & Sons Carpet Co. v. Ball, 137 App. Div. 100; Duryea v. Auerbach, 164 id. 44; Ginsburg v. Woolworth Co., 176 id. 882.) Here, however, are questions of law that seem to make an exception to the ordinary rule upon such appeals.
The powers of the Public Service Commission to sanction an increase of rate beyond that authorized by statute have always been restricted to the statutory rates. The original Public Service Commissions Law (Laws of 1907, chap. 429, § 72) conferred the rate-making power to fix the maximum price for gas by the words “ within lawful limits.” In the present act the matter was stated more clearly by an amendment inserting the term “ not exceeding that fixed by statute to be charged by such corporation or person, for the service to be furnished.” (Consol. Laws, chap. 48 [Laws of 1910, chap. 480], § 72, as amd. by Laws of 1920, chap. 542.) In 1910, the date of the present law, improvements in gas production pointed to lower rates, and as
After the judgment entered on the Hughes report, the statute commanding the eighty-cent rate is unenforceable as to this particular defendant. (See Laws of 1906, chap. 125, as amd. by Laws of 1916, chaps. 604, 612, and. Laws of 1917, chap. 666.) Yet such findings and the judgment thereon did not destroy the statute, which still exists as a restraint upon the Commission. And this rests on a sound distinction. To hold a rate confiscatory is merely a finding that as to a particular manufacturing plant the enforcement of a fixed rate with the conditions of gas production and distribution, would deprive the company of property without due process of law. (See U. S. Const. 14th Amdt. § 1; State Const, art. 1, § 6.) Such conditions are not merely those of operating cost and adequate return, but proof of such a fair and continued practical trial of the working of the existing rate that proves upon experiment its inadequacy. •
Had it been otherwise, and this advance been regularly made under section 72 of the Public Service Commissions Law, the proper remedy would be by certiorari, and not by this form of equity suit. But the rate of one dollar and forty cents is now acknowledged as an independent increase. Such advance deserves that full investigation that can only be had through a trial. We cannot say that it was any error of discretion to preserve the status quo, where the defendant is fully protected by security. Even if plaintiff sued entirely alone, he would have a standing to contest the exaction of rates which are unfair or discriminatory. (Armour Packing Co. v. Edison El. Illuminating Co., 115 App. Div. 51; Richman v. Consolidated Gas Co., 114 id. 216.) We, therefore, do not depart from the ordinary practice to leave the parties to a trial, rather than to dispose of these doubtful questions upon affidavits.
The order, therefore, should be affirmed, with ten dollars costs and disbursements.
Mills, J., concurs; Blackmar, J., reads for reversal, with whom Jenks, P. J., concurs.
Concurrence Opinion
I concur in the affirmance of the order granting injunction pendente lite but for reasons which are not entirely in accord with those expressed in the prevailing opinion. In view of the fact that the statutory rates fixed for defendant by the Legislature have been declared confiscatory and void, I think the power to fix a reasonable rate devolved upon the Public Service Commission after due hearing and investigation. I think this was the intention of the Legislature in such case. (People ex rel. Village of S. Glens Falls v. P. S. Comm., 225 N. Y. 216.) The consumers of gas were not left solely at the mercy of the defendant company. (Town of North Hempstead
Dissenting Opinion
The complaint alleges that the Public Service Commission has made an order that on and after August 1, 1920, to and including July 31, 1921, the maximum price to be charged by the defendant for gas shall be one dollar and forty cents per
It is claimed that the decision of the Court of Appeals in People ex rel. Municipal Gas Co. v. P. S. Comm. (224 N. Y. 156) establishes as matter of law that the order of the Public Service Commission is void in that it authorizes a charge in excess of the rate fixed by statute, and may be disregarded in a collateral attack. That decision was rendered in a case where there was a statutory rate fixed and in force, and the court held that the power of the Public Service Commission was limited, by the terms of the statute conferring it, to fixing rates below the statutory limit. But in the case at bar it appears on the face of the complaint that, in a suit in equity the statutory rate has been adjudged confiscatory and void as to this defendant. Undoubtedly, as is said in the prevailing opinion herein, the statute still exists; but the effect of the judgment is that it is void as to the defendant. Such being the case, I think that the decision in the Municipal Gas Company case does not apply. If it does, we are driven to the conclusion that, as to the defendant, the whole conprehensive plan of State control of rates through the Public Service Commission has broken down. It is not necessary so to hold; it is inconsistent with the declared policy of the State so to hold; and in ' my opinion it is error so to hold.
In order to hold that the Commission had power to fix the rate in question it is not necessary to do violence to the words of the statute. I proceed within its letter. The statute empowers the Commission to fix the maximum price of gas “ not exceeding that fixed by statute to be charged by such
But whatever we may think of the power of the Commission to fix a rate in excess of eighty cents, yet the Commission had general jurisdiction over the defendant company and over the subject-matter. It certainly had power to fix a rate within the limits of the statute. If it was not warranted in exceeding eighty cents, this was an error in law and should be corrected by certiorari. The Public Service Commissions Law presents a comprehensive plan whereby all questions of reasonableness of charges of public service corporations where the Legislature has not directly acted, shall be settled by Commissioners whose special knowledge in this field of operation and whose facilities for investigation render them more fitting depositories of that power than the courts. .Their decisions may be directly reviewed by certiorari. But they cannot be attacked collaterally unless entirely void as beyond the power of the Commission. If I am right, the Public Service Commission which fixed the price in question acted within its general jurisdiction, and if, contrary to my opinion, it erred as fixing too great a rate, that should be corrected by direct review and not disregarded as void.
The subject-matter of this action concerns the charge to the plaintiff alone. He does not represent the public and can raise no question of the validity of the. general schedule of charges. As has been seen, this power has been conferred upon the Public Service Commission. The allegation of his complaint is thatjthe rate is “ unreasonable, excessive and exorbitant, and is more than sufficient to reasonably compensate the said defendant for its public service during a period when commodities necessary to comfortable existence should be furnished to the consumer at as low a rate as possible.” He prays, among other things, “ That it be decreed that the rate of $1.40 per thousand cubic feet for illuminating gas is, as to this defendant, unreasonably compensatory and void.” It is manifest that the claim of the plaintiff is that the defendant is making too much money. But with this the plaintiff has no
Prescribing a general rate for service is a legislative and not a judicial act.' It may be exercised by the Legislature directly or by an administrative body to which the power is delegated.' In the absence of such regulation, the power to fix the charges is vested in the corporation itself; and although a question may arise as to the reasonableness of the charge, depending upon the service rendered, as between an individual and the corporation, such power never concerns the power of the corporation to establish a system of rates. In the absence of such legislative regulation, the courts have no power to determine the question. (People ex rel. Linton v. B. H. R. R. Co., 172 N. Y. 90; Honolulu R. T. Co. v. Hawaii, 211 U. S. 282; Northern Pacific Railroad v. Dustin, 142 id. 492; People v. N. Y., L. E. & W. R. R. Co., 104 N. Y. 58.) The bill of complaint, concerning the plaintiffs rights only, furnishes no justification for this suit in equity.
If the order of the Public Service Commission is void, the defendant has the power to establish its own rates. The presumption is that they are reasonable, and a mere allegation of the pleadings that they are unreasonable, without evidence to support it, does not justify an injunction. In this record ■ there is not a scintilla of evidence tending to show that the
I think the order should be reversed and the motion denied.
Concurrence Opinion
concurs.
Concurrence Opinion
concurs.
Order affirmed, with ten dollars costs and disbursements.