People ex rel. Pavilion Natural Gas Co. v. Public Service Commission

John M. Kellogg, P. J. (dissenting):

The Park. Abbott Realty case cited was an application for a peremptory writ of mandamus to compel a natural gas company to make connections with the petitioner’s house. The house was new, piped and equipped for gas. While an application was pending for connecting it with the mains, the Public Service Commission, because of a deficiency in the supply of natural gas, made an order prohibiting new connections. The order was. held to be unreasonable and arbitrary and, so far as the petitioner is concerned, not a defense to its application. It denied the petitioner the same kind of service which was granted to its neighbors. Petitioner could not use gas, even in the summer months when there was concededly enough for all. Under the police power restraint may be put upon the natural rights of individuals for the public welfare. Such restraint, however, must rest upon some proper classification which makes it reasonable; it cannot be arbitrary.

Here the Commission has divided the consumers into two classes, the domestic and industrial, and has put limitations *43upon each. No consumer is here complaining that the order interferes with his rights. The sole complainants are the companies, which are willing to furnish an inadequate service at an increased cost to the consumer. If the consumers are aggrieved, they must take care of their own interests; the relators are not called upon to defend them.

Concededly the companies have not a sufficient gas supply for their customers, and are furnishing poor gas, with an uneven and varying pressure, with the result that the consumer is not given an adequate service, but in the meantime his bills are increasing. The question is, have the relators a legal right to continue that condition and can they complaint at the relief the order grants to the consumers?

The order does not punish the relators because of the failure of the natural supply; it only requires reasonable service upon reasonable terms. It places the loss resulting from the failure of the wells upon the owners, where it belongs, and does not allow them to visit it upon the consumer.

Concededly the Commission has the power to require that new wells be bored, if in its judgment such action would meet the situation. But it considered that scheme impracticable and that at the most it would furnish a mere temporary relief. The history of the natural gas sections satisfied the Commission that the trouble is permanent. The relators, however, claim that new drilling will furnish relief, but they have obtained no relief and evidently are helpless. In the judgment of the Commission, and as a plain matter of fact, there can be but two possible means of relief: (1) The establishment of an auxiliary gas plant to help out the wells during the four months of greatest consumption. The companies refuse to do this and the Commission doubts its power to require it; (2) the regulation of the pressure, which would necessarily result in cutting down the consumption in order to make the regulation effective.

The Public Service Commissions Law was enacted to compel public service corporations to perform their duties to the public, which mainly are the furnishing of a reasonable service at a reasonable price. Concededly the relators are at fault in both these respects. The order is, therefore, directly within the spirit of the law and I think is well within its terms. •

*44The act, in substance, provides that the Commission shall possess the powers and duties hereinafter specified, and also all powers necessary or proper to enable it to carry out the purposes of this chapter (§ 4); that its jurisdiction, supervision, powers and duties extend to the manufacture, sale or distribution of gas, to gas plants, and to the persons or corporations owning, leasing or operating them (§ 5); that a gas company must furnish and provide such service, instrumentalities and facilities as shall be safe, adequate and in all respects just and reasonable (§ 65); that the Commission has general supervision of all gas companies and their plants (§ 66, subd. 1), and is to ascertain the quality of gas supplied and the methods employed in distributing and supplying it, and is given power to order such reasonable improvements as will best promote the public interests, preserve the public health and protect those using gas, and to order improvements and extensions of the works, conduits and other reasonable devices, apparatus and property (§ 66, subd. 2); that the Commission is to keep informed as to the methods, practices, regulations and property employed, and when, in its opinion, the property, equipment or appliances are inefficient or inadequate, to determine and prescribe efficient and adequate property, equipment and appliances thereafter to be used, maintained and operated for the security and accommodation of the public (§ 66, subd. 5); that it is to inquire as to the illuminating power, purity, pressure or price of gas and, after a hearing, may order such improvements in the manufacturing, distribution or supply, or in the methods employed, as will in its judgment be adequate, just and reasonable (§§ 71, 72). Section 73 requires obedience to the orders of the Commission and section 127 provides that all other acts and parts of acts otherwise in conflict with the act are repealed.

The attorney for one of the villages urged that all that was required to remedy the existing evil was for the Commission to fix a reasonable pressure under which gas shall be delivered and that such requirement would necessarily compel the companies to curtail their service. The Commission felt that the companies could not, in the winter months, deliver the gas under a proper pressure unless the consumption was decreased. The matter, in substance, was viewed as one of *45pressure and that the decrease in the supply and the increase of the consumption caused a low and fluctuating pressure which resulted in the grievances complained of. We may properly consider the question as one of pressure, purity and price, which the Commission is expressly authorized to regulate.

If the part of the order fixing the pressure stood alone, it would be impossible for the companies to comply with it, for the law contemplates that they must grant a reasonable service to all who desire it. If, however, the Commission has the right to regulate the pressure and to relieve the community from its present sufferings, it must have power to do the only thing which will bring about such a result — that is to cut down the consumption. If it is necessary to decrease the consumption, the Commission is called upon to specify how it shall be decreased, and, therefore, it may determine, as it has in this case, that consumers shall not use a stove unless it is adapted to such use; that the use by domestic consumers shall not exceed a certain maximum and that an industrial consumer who uses the gas for a purpose not used by the public in general shall, during the months specified, use it only as permitted by the Commission. The Commission, from necessity, in order to carry out the powers granted it> has the right to do what the companies themselves could not do — deny service during the four months to some if there is a reasonable basis for classifying the limited service. The classification must not rest on technical or arbitrary grounds, but must have a broad and reasonable basis. The division of the customers into industrial and domestic is a reasonable classification.

As we have said, the only complaint here comes from the gas companies, and their supposed grievance, as we gather it from the record, is that they are not permitted to furnish the public an inadequate supply of poor gas with increased bills rather than an adequate supply of good gas at normal cost. I favor an affirmance.

Determination annulled, with fifty dollars costs and disbursements, and proceeding remitted to the Commission.