I concur in the prevailing opinion in so far as it holds that sections 18-a and 18-b of the *481Public Service Law are constitutional. I disagree entirely with the conclusion that the burden is on the Public Service Commission to establish the necessity for an investigation.
Complaint was made to the Commission relating to the prices which petitioner was charging the public for gas. Under the provisions of the Public Service Law the Commission is charged with the duty of investigating the rates and charges of any utility subject to its jurisdiction in a proceeding brought on its own motion whenever, in its discretion, it deems such an investigation to be necessary. That the Commission has a right to make such an investigation is no longer an open question (Village of Saratoga Springs v. Saratoga Gas, etc., Co., 191 N. Y. 123.) The enactment of section 18-a of the Public Service Law by chapter 282 of the Laws of 1934 has not changed the rule. Prior to the enactment of this statute the expenses of such an investigation were borne by the State. The Legislature has now declared that utilities shall “ pay such portion of the compensation and expenses * * * as is reasonably attributable to such investigation.”
The investigation of the rates and charges of the petitioner was made under the provisions of sections 71 and 72 of the Public Service Law. Section 72 requires that the Commission make an investigation of any matters necessary “ to enable it to ascertain the facts requisite to the exercise of any power conferred upon it.” One of the powers so conferred is the fixing of just and reasonable rates and charges to be made by the petitioner and other utilities for the furnishing of gas or electricity. In order to determine a proper rate the Commission was under the absolute duty of investigating and making a valuation of the plant and properties of petitioner. In the present proceeding the Commission has determined the necessity of investigating the rates charged for gas by the petitioner. After making this determination petitioner was accorded an opportunity to be heard and to present any facts or circumstances which it considered relevant on the question of the necessity for such an investigation. Petitioner failed to advance any reason showing that such an investigation was not necessary. Petitioner’s claim is that the Commission has no right to make such an investigation without proof as to the necessity therefor. The Commission was under no duty to present to the petitioner reasons why such an investigation was necessary. It is quite obvious that prior to such an investigation it would be impossible for the Commission to determine the result. If the Commission had absolute knowledge that petitioner was violating the law then there would be no necessity to conduct an investigation. It was not the legislative intent in enacting section 18-a of the Public Service Law to limit the power *482which the Commission already had and which it had exercised for many years in making investigations. The only reasonable construction of that section is that the Commission shall make a determination from information available to it and then to give the utilities an opportunity to show cause, if any they have, why such an investigation should not be made. Any other construction, it seems to me, is repugnant to the intent and spirit of the Public Service Law. To hold that the Commission must clearly establish that a utility is violating the law before its affairs may be investigated, and that the determination when made is subject to review in the courts, would effectively prevent any investigation which the history of the utilities has shown to be so necessary and so wholesome for the protection of the public.
I concur in the view of the majority that the petitioner was entitled to a hearing as to the amount of the compensation and expenses which the Commission proposed to assess against it before the same was fixed. In failing to give it such an opportunity the Commission erred.
The order made by the Public Service Commission determining that an investigation was necessary should, therefore, be confirmed and the order assessing compensation and expenses against petitioner should be vacated and the matter remitted to the Commission to hold a hearing thereon.
Orders and determinations annulled, with fifty dollars costs and disbursements, and matter remitted.