124 N.E. 105 | NY | 1919
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *529 In May, 1915, a corporation known as the Cayuga Power Corporation was organized under the laws of this state. Its incorporators said in their certificate that they were acting under article 7 of the Transportation *530 Corporations Law (Consol. Laws, chap. 63). The business, however, was to be a private one with no element of public service. The corporation, in the words of the certificate, was "to generate and distribute electricity solely on or through private property for railroad or street railroad purposes, or for its own use or the use of its tenants." The effect of this abdication of public functions was to withdraw the corporation, as thus organized, from the jurisdiction and supervision of the public service commission. The Public Service Commissions Law (Consol. Laws, chap. 48) provides (Sec. 2, subd. 13) that the term "electrical corporation" as used in that chapter shall include every corporation "owning, operating or managing any electric plant except where electricity is generated or distributed by the producer solely on or through private property for railroad or street railroad purposes or for its own use or the use of its tenants and not for sale to others" (See, also, Railroad Law, sec. 33; Consol. Laws, chap. 49). The new corporation issued stock of the par value of $75,000; it placed a mortgage upon its plant to secure $200,000 of bonds; and it proceeded to manufacture electricity for its own use and for that of its tenant, the Cayuga Cement Corporation. These conditions remained unchanged till December, 1916, when an attempt was made, by an amendment of the certificate of incorporation, to give the corporation the right to occupy the public highways. By the amended certificate, the powers and purposes of the corporation were broadened to include "manufacturing and using electricity for producing light, heat or power, and in lighting streets, avenues, public parks and places, and public and private buildings of cities, villages and towns within this state" (Transp. Corp. Law, sec. 60, Cons. Laws, ch. 63). At the same time, the authorized capital stock, which had previously been $75,000, was increased to $200,000. Franchises or permits for the use of the public highways were obtained *531 from neighboring towns and villages. Contracts for the supply of light and power were made with neighboring manufacturers. There was an issue of new stock. There was an enlargement of the plant. There remained seemingly but one thing to complete the transformation from a private to a public enterprise. The one thing yet lacking was the approval of the public service commission.
To win that approval, the corporation filed two petitions. The first petition, filed in April, 1917, prays permission to construct an electrical plant, with poles, wires, and suitable equipment, and to exercise public franchises in enumerated towns and villages. Section 68 of the Public Service Commissions Law provides that no "electrical corporation shall begin construction" of an "electric plant without first having obtained the permission and approval" of the commission, nor "exercise any right or privilege under any franchise granted" without like permission and approval (People ex rel. N.Y. Edison Co. v.Willcox,
We think the ruling of the commission must be sustained. However the incorporators might style it, this corporation, when organized, was not an electric light corporation within the meaning of article 7 of the Transportation Corporations Law. Such corporations may be organized "for manufacturing and using electricity for producing light, heat or power, and in lighting streets, avenues, public parks and places, and public and private buildings of cities, villages and towns within this state, or for two or more of such purposes" (Transp. Corp. Law, sec. 60), but always subject to the duty of service to the public. This is clearly indicated in section 62, which provides that electric light must be furnished by any electric light corporation upon the application of the owner or occupant of any building within one hundred feet of its wires. Other sections and cognate articles reveal a like scheme (Arts. 1 to 10). The duty to serve the public goes hand in hand with the privilege of exercising a special franchise, with the consent of the local authorities, by the occupation of the public highways (Armour Packing Co. v.Edison El. Co.,
The order of the Appellate Division should be reversed, and the determination of the public service commission affirmed, with costs in the Appellate Division and in this court, and the questions certified answered in the negative.
COLLIN, POUND, CRANE and ANDREWS, JJ., concur; CUDDEBACK, J., dissents; HISCOCK, Ch. J., not voting.
Ordered accordingly.