I concur in the result reached by Judge CRANE.
The right to regulate rates of public service corporations is a governmental power vested in the state in its sovereign capacity. It may be exercised by the state, or through a commission appointed by it; or it may delegate such power to a municipality. The delegation of this power, however, is never implied since the effect is to extinguish, no matter for how short a time, protanto a power of the state. Therefore, when delegated its existence and the authority to make it must clearly and unmistakably appear. (Matter of Quinby v. Public ServiceCommission, 223 N.Y. 244.) Every doubt must be resolved in favor of the continuance of the power in the State (Home Telephone Telegraph Co. v. Los Angeles, 211 U.S. 265; Wyandotte CountyGas Co. v. Kansas, 231 U.S. 622.) *Page 226
Our attention has been called to no provision in the charter of the village of South Glens Falls by which it is claimed the power was given to such village to fix the maximum rate at which gas should be sold to consumers. It may be assumed that the charter gave to the village the right to make certain contracts necessary for its corporate existence, but this power did not include the right to make a contract fixing the rate at which gas should be sold to the public. When the franchise was granted to the United Gas, Electric Light and Fuel Company, both it and the village were bound to take notice of the right of the state to step in at any time and fix a rate other than that stated in the franchise. The legislature by the creation of the public service commission delegated to that body the power to fix a rate, and this it may exercise whenever it sees fit to do so notwithstanding the provision of the franchise fixing the maximum price for a term of fifty years. The act of the village and the gas company in thus contracting, while it may have been binding upon the parties to it, had no effect upon the power of the state acting through the public service commission to which has been delegated all the power the state has in fixing rates at which gas can be sold to the public. The whole act creating the public service commission indicates as clearly as language can that the legislature intended to give to that body all the power necessary to fix a rate at which gas could be sold throughout the state. Thus article 1, section 4, of the Public Service Commissions Law provides that the commission shall possess the powers and duties specified in the act but "also all powers necessary or proper to enable it to carry out the purposes of this chapter." Article 4, section 66, subdivision 5, provides that "whenever the commission shall be of opinion, after a hearing had upon its own motion or upon complaint, that the rates or charges or the acts or regulations of any such *Page 227 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 the just and reasonable rates and charges." And article 4, section 72, provides that after the hearing and after such investigation as shall have been made by the commission or its officers or agents "the commission within lawful limits may, by order, fix the maximum price of gas or electricity not exceeding that fixed by statute 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. * * *"
It is true that in article 7, section 61, subdivision 2, of the Transportation Corporations Law (L. 1909, ch. 219) the right of a public service corporation to lay conductors for conducting gas through the streets of a city or village is given, but this right cannot be exercised without the consent of the municipal authorities "under such reasonable regulations, as they may prescribe." "Reasonable regulations" does not include the right to fix a rate so that the state cannot interfere and fix a different one. (Wyandotte County Gas Co. v. Kansas, supra;Portland R., L. P. Co. v. City of Portland, 201 Fed. Rep. 119; City of Benwood v. Public Service Commission,75 W. Va. 127;Milwaukee Electric R. Lt. Co. v. Railroad Commission,153 Wis. 592. See, also, People ex rel. N.Y. N.S.T. Co. v.Public Service Commission, 175 App. Div. 869; People ex rel.Bridge Operating Co. v. Public Service Commission, 153 App. Div. 129. ) If this view be correct, then it necessarily follows that there is at the present time lodged in the public service commission the power to fix a rate at which gas shall be sold by the appellant. *Page 228
But it is urged that this view is in conflict with the one expressed in Matter of Quinby v. Public Service Commission (supra). I do not think so. On the contrary it seems to me that case is clearly distinguishable. There the question presented related to rates of a street surface railroad operating in the city of Rochester. Before the railroad company occupied the streets of the city it had to obtain the consent of the municipal authorities. The Constitution, as amended in 1875, so provided (Article 3, section 18). The consent was obtained but only on condition that the rate for one continuous ride should not exceed five cents per passenger. The condition thus imposed was accepted and the franchise granted by the city in 1890. In 1894 another contract was entered into between the city and the railroad company which ratified and confirmed the contract of 1890 as well as all ordinances relating to it. This contract was expressly recognized by the legislature in paragraph 173 of the Railroad Law (L. 1910, ch. 481); and in section 181 of the same law a provision was inserted which prohibits a railroad operating in any incorporated city or village from charging any passenger more than five cents for a continuous ride. In 1915 the legislature amended the charter of the city of Rochester and added a new section which provides that all street surface railroads operating cars in the streets of the city should not charge more than five cents per passenger for each continuous journey. In view of the constitutional provision requiring the consent of the local authorities, the agreement as to the maximum fare to be charged as a basis of the consent, the legislative recognition of the contract, and the act of 1915 fixing the maximum rate at five cents, this court held that it did not find in the Public Service Commissions Law that the state had delegated to the public service commission the power to increase the rate in excess of that agreed upon between the railroad company and the local *Page 229 authorities, and that if the legislature had so intended then such intent should have been expressed in "clear and definite language."
In the present case there was no constitutional provision requiring the consent of the local authorities before the streets of the village could be occupied by the gas company. There has been no legislative recognition of the terms imposed as a condition of granting the franchise. No statute has been enacted fixing the maximum price at which gas can be sold. And it does appear from the Public Service Commissions Law that the legislature intended to and has given the commission the power either to increase or to decrease the price at which gas shall be furnished to the public.
The distinction thus made is not fanciful. It is real. It is substantial. In the Quinby case the intent on the part of the legislature to delegate the power to fix a rate could not be found, and there was a fair inference, at least, from legislative acts that such power had not been given but was retained by the state. In the present case the intent does appear. The statute creating the public service commission indicates as clearly as language can that the legislature intended to give to the commission all the power necessary either to increase or to diminish rates at which gas should be sold.
Entertaining these views I am of the opinion that the order of the Appellate Division should be reversed, etc.