City of Buffalo v. Buffalo Gas Co.

Nash, J. (dissenting):

■ The plaintiff recovered judgment against the defendant in the. Municipal Court of Buffalo for fifty dollars, being the amount of a *510penalty for an alleged violation of section 69 of chapter 566 of the Laws of 1890, which provides that if any gas light corporation in •this State shall charge or collect, rent on its gas meters, either in a direct or indirect .maimer, it shall be liable to a penalty of fifty dollars for each offense.

. The complaint alleged that the uniform price for which the defendant-had furnished gas to consumers prior to 1901 was twelve cents per 100 cubic feet of gas consumed, less two cents per 100 cubic feet discount if paid before the tenth-of the succeeding month; that one; Junius S. Smith had for a long- time prior to July 29, 1901, taken gas from the defendant, and. paid the uniform price therefor, at the rate above stated furnished to him at his place of business^ Ho. 27 Hain'street in the city of Buffalo; that, after July 29, 1901, and up to August 29, 1901, the defendant continued to supply gas to said Smith, and during said period he consumed 200 feet'of gas, for which at the price which had been before uniformly charged to hiña, he became liable to pay the defendant twenty-four cents, or; less the discount, twenty cents; that thereafter and on September 1, 1901, the defendant rendered to said Smith a bill for the gas consumed as. aforesaid, as follows:

“ Consumption, 200 cu. ft.
“ Gas at 12c per 100 and service........................ .60= ■
“Discount, 2 cents per hundred.. .................... . .10
“ Net, if paid on or before Sepk 10.........;........... ■ .50”

that thereafter, and on or about September 26, 1901, said Smith tendered the defendant twenty cents in payment of said bill, which was refused, and said Smith thereupon^ under protest, paid • to the defendant, fifty cents in settlement, of said bill.

It appears that the defendant gave notice to its customers that on and after August 1, 1901, it would render a minimum gas bill or service bill to consumers for the size of meter used by said Smith, which service charge would be the same as for 500 feet of gas — sixty cents gross, or fifty cents net if paid on or before the tenth of the following months or a fixed minimum charge of fifty cents a month for gas and service which, when the gas consumed exceeded 500 feet, during, the month, would be absorbed in the price of the gas.

*511It was shown on behalf of the defendant, that it cost to keep a customer’s name on the books of the company from three and a half to four dollars a year, which covers the expense of inspecting meters and keeping them in order, making entries in its books, making out and rendering and collecting bills.

It is urged on behalf of the appellant that the company’s charge was not directly or indirectly a meter rental; that when the company is required to install its meter and furnish gas to a customer certain services are required in addition to supplying the consumer with gas. It has to enter the customer on its books as a patron ; to send a man to inspect the meter monthly ; to enter the record of consumption; to make out and mail his monthly bill; to collect it; to make entries on its books of the amount due and paid; and to keep the meter in proper order; ” that a charge for these services which are rendered necessary and grow out of the relation between the parties is something quite distinct from rent. . I agree with the appellant in this contention.

In the notice to customers stating that a minimum gas or service bill would be charged, a rate was fixed varying in amount with the size of the meter, and it is suggested that it costs no more to read a meter, make out a bill and make a monthly inspection of a threeliundred-light meter than for a ten-light meter. We are dealing here only with.tlie offense proved, for which the penalty was imposed, and as to that we agree with the appellant’s contention that it cannot be said that rent of the meter formed any part of the gas and service bill collected by the defendant.

If, however, some part of the minimum sum fixed for gas and service includes a charge for rent of the gas meter, so that it may be regarded as a violation of the statute, then we come to the question of power in the Legislature to impose the penalty for such violation, i. e., to compel a gas company to furnish gas to a patron at less than half the cost of the service to the company. The twenty cents for the gas actually consumed was little more than half the cost of furnishing it. This patron’s bill for February was ten cents, for March nothing, and for April ten cents. If this can be required by one it can be by hundreds of patrons to the serious loss of the company. The service rendered to a patron is of course property. And if, in a given instance, the company is required to furnish it at *512half its cost and even without any compensation whatever, it would be violative of the provision of the Constitution which says that no person shall be deprived of his. property without due process, of law nor shall his property be taken for public use without just compensation.

It is not intended by- the opinion here expressed to deny the power of. the Legislature to regulate charges for gas furnished and services rendered by gas companies to consumers, but,, as said- by Chief Justice Waite in the case of Stone v. Farmers' Loan, & Trust Co. (116 U. S. 307), it is not tó be inferred that, the power of limitation or regulation is itself without limit, and as pertinent, to the case then before the court: “ This power to regulate is not a power to destroy, and. limitation is not the equivalent of confiscation. Under pretence of regulating fares and freights the State cannot require a railroad corporation to carry persons or property without reward ; neither can. it do that which in law amounts to a taking of private property for public use without just compensation or without due process of law.”

■ The judgments of the courts below should be reversed.

McLennan, J., concurred.

Judgment affirmed, with costs.