The right of a village to construct and maintain its own municipal electric light plant is dependent upon the will of the *Page 50 Legislature. By article 14-A of the General Municipal Law (Cons. Laws, ch. 24) this right has been specifically conferred upon municipalities. As the right originates with the Legislature it may limit the use and exercise of this right as it sees fit. A village is not deprived of its property, within the meaning of the Federal Constitution, when the Legislature or any of its agencies fixes the rates which municipal light plants may charge. If, therefore, the Legislature should provide that municipalities taking over the electric light business should run it at cost, and that the consumers should not be charged such a rate as to give to the municipality a profit over and above cost of operation, such an enactment would be legal and constitutional.
I can find no limitation which the Legislature has placed upon the municipalities regarding rates, except that contained in the Public Service Law (Cons. Laws, ch. 48). The power of the Commission, with reference to the rates charged for electricity by villages, may be found in article 4, section 66, subdivision 5 of this law, which reads in part as follows: "* * * Whenever the commission shall be of opinion, after a hearing had upon its own motion or upon complaint, that the rates, charges or classifications or the acts or regulations of any such person, corporation or municipality are unjust, unreasonable, unjustly discriminatory or unduly preferential or in anywise in violation of any provision of law, the commission shall determine and prescribe in the manner provided by and subject to the provisions of section seventy-two of this chapter the just and reasonable rates, charges and classifications thereafter to be in force for the service to be furnished * * *."
Article 4, section 72, of the Public Service Law, which is the section referred to in the excerpt just quoted, provides in part:
"* * * After a hearing and after such an investigation as shall have been made by the commission or its officers, agents, examiners or inspectors, the commission *Page 51 may, by order, fix just and reasonable prices, rates and charges for gas or electricity to be charged by such corporation or person, for the service to be furnished * * *.
"* * * In determining the price to be charged for gas or electricity the commission may consider all facts which in its judgment have any bearing upon a proper determination of the question although not set forth in the complaint and not within the allegations contained therein, with due regard among other things to a reasonable average return upon capital actually expended and to the necessity of making reservations out of income for surplus and contingencies."
Apparently the Legislature has treated municipalities and private enterprises alike and the rate is to be determined in the same way and according to the same elements in both cases.
The appellants strenuously urge that when the Legislature permitted municipal corporations to establish electric light plants and enter into this kind of public service, it did so for the purpose of reducing rates to consumers upon a co-operative plan, furnishing them electric current at cost and without any idea or purpose that the municipality was to enter into a business venture for profit. If this were the idea, the Legislature has failed to express it. We should wait until the Legislature's intention becomes quite apparent, and not give a strained construction to the Public Service Law for the purpose of accomplishing what we may think the State of New York intended to do.
For these reasons I am for the affirmance of the determination of the Appellate Division. The question certified should be answered in the negative.
LEHMAN, O'BRIEN, HUBBS and CROUCH, JJ., concur with FINCH, J.; CRANE, Ch. J., concurs in result in separate opinion in which LOUGHRAN, J., concurs.
Order affirmed, etc. *Page 52