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

Cochrane, J.:

The Pavilion Natural Gas Company since the year 1906 has produced natural gas from wells owned and operated by itself. From time to time it has extended its pipe lines into various towns and villages whereby it has supplied consumers with natural gas. The Tri-County Natural Gas Company is not a producer but since the year 1909 has been supplied with natural gas by the Pavilion Company and in turn distributes the same to consumers in other localities not supplied by the latter company. The localities supplied by the two companies are quite extensive including numerous villages and hamlets in four counties of the State.

On July 9, 1918, the Public Service Commission made an order that all the customers of both companies should be divided into two classes to be known as “ domestic consumers ” and “ industrial consumers; ” that domestic consumers should “ include the users of natural gas for heating, lighting and cooking in private houses, boarding houses and apartment houses; and users of natural gas for lighting and cooking only in hotels, restaurants, bakeries, eating houses, club houses, hospitals and charitable institutions; ” that all other consumers should be known as industrial consumers; that from the first day of December in each year until the thirty-first day of March in the succeeding year no natural gas should be furnished by either company to any industrial consumer for any purpose without the special permission of the Commission with an exception not here material; and that during the same period no domestic consumer should be permitted to use more than 25,000 cubic feet of natural gas in any one month nor in that proportion for a corresponding part of a month. The reason for this order is recited therein as follows: “ That the Pavilion Natural Gas Company does not and cannot furnish a sufficient supply of natural gas to its customers in the territory served by it during the winter months and that said territory is dependent upon said company for its supply of gas and that much inconvenience, suffering and danger to the health and the lives of the customers of said company are caused by the inability of said company to furnish the necessary amount of gas with adequate and proper pressure and that it is necessary to restrict the use of gas furnished by said company during the winter months for the purpose of conserving the supply for domestic customers.” The order is in terms made applicable to both relators.

In respect to the recital in the order of “ suffering and danger to the health and the lives of the customers ” there is no evidence in the record justifying such recital. There may be plenty of “ inconvenience ” but no witness testified to any fact justifying the inference of “ suffering and danger ” to any one.

The order is based on the inability of the relators to supply an appropriate amount of gas, not because of inadequacy of equipment or imperfection of methods employed in the manufacture, distribution or supply of gas, but because nature is not sufficiently liberal in its supply. The wells are becoming dry. The use of gas in the localities affected has been sufficiently extensive to exhaust the beneficence of nature. The relators cannot perform the impossible. All the people who desire gas cannot have it in the quantity desired by them for the simple reason that the earth does not yield enough in the vicinity affected to supply all wants.

This inadequacy of nature the Commission has sought to offset by the simple device of restricting the consumption of gas during the winter months when there is the greatest drain on the natural reservoir. The industrial consumers, which class includes the manufacturers and largest consumers, are entirely deprived of gas during those months. Hotels, hospitals, charitable institutions and others must not use it for heating or for any purpose except lighting or cooking and all are limited in the amount of monthly consumption. The Commission has acted on the theory of the greatest good to the greatest number. But while the “ domestic consumers ” who constitute the larger class derive an advantage from the order of the Commission there is necessarily a corresponding disadvantage to those who are less favored and it may be difficult or even impossible to strike a balance between the advantages and disadvantages resulting from the order. The question, however, does not depend on the argument pro bono publico but on the statutory power of the Commission.

The Commission found its jurisdiction in sections 65 and 66 of the Public Service Commissions Law (Consol. Laws, chap. 48 [Laws of 1910, chap. 480], as amd. by Laws of 1913, chap. 504). Neither these sections nor sections 71 and 72 nor any other statutory provision in my opinion either expressly or by implication authorizes this order. These sections were the subject of consideration and discussion in People ex rel. Municipal Gas Co. v. Public Service Comm. (224 N. Y. 156), and while I do not regard that case as an authority against the Commission on the proposition here involved, the analysis and discussion of the statute at page 162 et seq. are pertinent and instructive. Section 66 consists of thirteen subdivisions covering a broad field of details in respect to which the Commission may exercise its activities. Whatever authority exists in that section for the order in question must be found in subdivision 5 which so far as here material provides that if “ the rates or charges or the acts or regulations of [the relators] 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 the just and reasonable acts and regulations to be done and. observed; and whenever * * * the property, equipment or appliances * * * are unsafe, inefficient or inadequate, the Commission shall determine and prescribe the safe, efficient and adequate property, equipment and appliances thereafter to be used, maintained and operated for the security and accommodation of the public and in. compliance with the provisions of law and of their franchises and charters.” As stated in the case cited, subdivision 5 of section 66 and sections 71 and 72 relate to the same subject-matter and are interdependent. “ Sections 71 and 72 prescribe the procedure and concrete remedies through which the general powers given the Commission in subdivision 5 of section 66 shall be carried out.” Section 71 provides that the Commission may investigate “ as to the illuminating power, purity, pressure or price of gas.” And section 72 provides that after such investigation the Commission “ may order such improvement in the manufacture, distribution or supply of gas, * * * or in the methods employed by such person or corporation, as will in its judgment be adequate, just and reasonable.” ..These statutory provisions relate to the property, equipment or appliances which the relators have or should have and to the methods in respect thereto which they can or should employ. They relate to the facilities or methods used or employed by the relators. The Commission can order improvements in the equipment or methods of the relators in order to overcome their shortcomings or failure. It is powerless to overcome the shortcomings or failure of nature. Whatever the relators can reasonably do to increase the supply may be required by the Commission. The power to do that is very different from the power to deprive some consumers of gas in order that others may have more. I think it needs no argument that when the Legislature enacted this statute it did not have in mind the possibility of a failure in, the supply of natural gas. The statute does not contemplate such a condition. Its provisions have reference to improvements and changes due to a failure on the part of the owners or operators in respect to their equipment or methods and not to a failure on the part of nature in supplying the commodity. If it had been the legislative purpose to grant such power to the Commission as has been exercised in making the order under consideration it would have been done in unmistakable terms and not left as a matter of inference.

The power of the Commission if not expressly given in the statute must necessarily be implied therefrom and such implication cannot exist beyond what is necessary for the just and reasonable execution of the grant of power which the statute confers. (People ex rel. Municipal Gas Co. v. Public Service Comm., 224 N. Y. 156, 165; People ex rel. New York, N. H. & H. R. R. Co. v. Willcox, 200 id. 423, 431; People ex rel. New York Railways Co. v. Public Service Comm., 223 id. 373, 378.)

These relators have from time to time extended their lines into the various municipalities at considerable expense with the approval of the Commission. They are lawfully there. They have received franchises from such municipalities and have entered into contract obligations with the consumers residing therein. The Commission cannot destroy or interfere with these contract rights and obligations. Undoubtedly if the consumers are dissatisfied with the service they are receiving they can discontinue their patronage or rely on whatever contract rights they possess against the relators. This may be the remedy which nature suggests for an insufficiency of supply which nature cannot produce. The Commission can within certain limits regulate the price. But as long as a consumer is willing to pay for what he is receiving, although he may not be receiving all he desires, the Commission has no power to deprive him of that privilege or to deprive the relators of his patronage.

In Park Abbott Realty Co. v. Iroquois Natural Gas Co. (102 Misc. Rep. 266; affd., 187 App. Div. 922) an order of the Commission that the gas company should not take on new customers along an existing pipe line was held invalid as to the owner of a house on said line on the ground of lack of legislative authority express or implied. I can see no difference in principle between that case and this unfavorable to the relators.

There are other provisions in the order relative to the use of gas in furnaces not originally constructed therefor and in regard to pressure gauges to be used and the pressure to be maintained in service pipes which provisions may perhaps be proper, but we express no opinion in reference thereto because they are largely dependent on the provisions of the order heretofore discussed and it may be would not have been made except for these latter provisions. On a rehearing the Commission may make such direction in respect thereto as may be proper.

The determination should be annulled, with fifty dollars costs and disbursements, and the proceeding remitted to the Commission.

All concurred, except John M. Kellogg, P. J., dissenting, with an opinion; Lyon, J., not sitting.