(dissenting). , I dissent and vote to reverse the order of the court below and to confirm and reinstate the determination of the Public Service Commission, with costs in all courts, on the ground that the cost of reproducing the petitioner’s multimillion dollar plant is not material or relevant in the computation of a value rate base. Subdivision 1 of section 97 of the Public Service Law, as I read it, does not mandate the Public Service Commission to employ any exclusive method or process for the determination of a just and reasonable value rate basis, nor does it require such commission to deal differently with separate types of utilities, but rather it requires it to use any fair and reasonable method or process to ascertain a just and reasonable value base, as long as it gives “ due regard * * * to a reasonable average return upon the value of the property actually used in the public service ” (§97, subd. 1). Upon this record, I am satisfied it did so here, particularly as the petitioner does not claim that the rates allowed are either unjust or unreasonable. (See Federal Power Comm. v. Hope Natural Gas Co., 320 U. S. 591.)
Conway, Ch. J., Desmond and Van Voorhis, JJ., concur with Froessbl, J.; Dye, J., dissents in a memorandum; Ftjld and Burke, JJ., taking no part.
Order affirmed.