Morrell v. Brooklyn Borough Gas Co.

Putnam, J.:

Ordinarily this court does not review the discretion of the Special Term in granting or refusing an injunction pendente lite, on appeal from the order, but will leave the parties to the trial. (Smith & Sons Carpet Co. v. Ball, 137 App. Div. 100; Duryea v. Auerbach, 164 id. 44; Ginsburg v. Woolworth Co., 176 id. 882.) Here, however, are questions of law that seem to make an exception to the ordinary rule upon such appeals.

The powers of the Public Service Commission to sanction an increase of rate beyond that authorized by statute have always been restricted to the statutory rates. The original Public Service Commissions Law (Laws of 1907, chap. 429, § 72) conferred the rate-making power to fix the maximum price for gas by the words “ within lawful limits.” In the present act the matter was stated more clearly by an amendment inserting the term “ not exceeding that fixed by statute to be charged by such corporation or person, for the service to be furnished.” (Consol. Laws, chap. 48 [Laws of 1910, chap. 480], § 72, as amd. by Laws of 1920, chap. 542.) In 1910, the date of the present law, improvements in gas production pointed to lower rates, and as said by Collin, J.: “ The Legislature evidently intended to retain unto itself the power of fixing rates exceeding those fixed as the greatest by statutes.” (People ex rel. Municipal Gas Co. v. P. S. Comm., 224 N. Y. 156, 166.) Last year Mr. Justice Page declared: “ Experience has shown that the forecast of the future was at fault; that it would have been wiser and more in keeping with the purposes of the act as originally enacted if the power of the Public Service Commissions had not been thus limited.” (Bronx Gas & Electric Co. v. Public Service Comm., 190 App. Div. 13, 22.) Writing on December 19, 1919, possibly with an eye to the approaching legislative session, he added: “ This court, therefore, expresses the hope that such limitation may be removed to the end that such flexibility be given to the operation of the statute that the Commissions may be open to the determination and adjustment of conflicting claims of consumers and the companies as to what are reasonable rates, fair both to the companies and to the public, at all times and under all circumstances, as was originally intended.” (p. 22.) Although that court took the view that the Commission could authorize a gas rate above the statute maximum, the contrary has been decided in this department. (Public Service Comm. v. Brooklyn Borough Gas Co., 106 Misc. Rep. 549; affd., 188 App. Div. 935. See, also, 189 App. Div. 62, 67, 74.)

After the judgment entered on the Hughes report, the statute commanding the eighty-cent rate is unenforceable as to this particular defendant. (See Laws of 1906, chap. 125, as amd. by Laws of 1916, chaps. 604, 612, and. Laws of 1917, chap. 666.) Yet such findings and the judgment thereon did not destroy the statute, which still exists as a restraint upon the Commission. And this rests on a sound distinction. To hold a rate confiscatory is merely a finding that as to a particular manufacturing plant the enforcement of a fixed rate with the conditions of gas production and distribution, would deprive the company of property without due process of law. (See U. S. Const. 14th Amdt. § 1; State Const, art. 1, § 6.) Such conditions are not merely those of operating cost and adequate return, but proof of such a fair and continued practical trial of the working of the existing rate that proves upon experiment its inadequacy. •

But there is no similar way to enlarge the delegation of this rate-making power. The Legislature alone can do that. Courts cannot supply that which the Legislature has withheld. (Matter of Quinby v. Public Service Comm., 223 N. Y. 244, 264.) Doubtless this was the view that led to the defendant's second affi'dayit in which it took a final stand wholly independent of the Commission.

Had it been otherwise, and this advance been regularly made under section 72 of the Public Service Commissions Law, the proper remedy would be by certiorari, and not by this form of equity suit. But the rate of one dollar and forty cents is now acknowledged as an independent increase. Such advance deserves that full investigation that can only be had through a trial. We cannot say that it was any error of discretion to preserve the status quo, where the defendant is fully protected by security. Even if plaintiff sued entirely alone, he would have a standing to contest the exaction of rates which are unfair or discriminatory. (Armour Packing Co. v. Edison El. Illuminating Co., 115 App. Div. 51; Richman v. Consolidated Gas Co., 114 id. 216.) We, therefore, do not depart from the ordinary practice to leave the parties to a trial, rather than to dispose of these doubtful questions upon affidavits.

The order, therefore, should be affirmed, with ten dollars costs and disbursements.

Mills, J., concurs; Blackmar, J., reads for reversal, with whom Jenks, P. J., concurs.