10 F.(2d) 167 of 32 cents per 1,000 cubic feet of gas sold charged by the plaintiff for such retirement expense, based upon its experience over a period of years, to be reasonable and necessary for such purpose. 65. In addition to the items herein before referred to, there must be included, in determining the cost of gas delivered to the consumer, various items entering into the cost of distribution, including transmission and distribution expense, commercial expense, general and miscellaneous expense, and uncollectible gas bills, and I further find that the actual and reasonable cost to the plaintiff of these several items, in cents per 1,000 cubic feet of gas sold, during the year 1922 was 34.372 cents, during the year 1923, 33.830 cents, and during the year ended November 30, 1924, 33.4169 cents. 66. On the evidence before me I find that the total actual and reasonable cost of gas delivered to its consumers by the plaintiff, in cents per 1,000 cubic feet of gas sold, before giving effect to miscellaneous operating revenue, during the period covered by the proof submitted before me, was and is as follows, aside from any return upon any of the property owned and used by the plaintiff in the service of its consumers: Year 1922. Cost of produc Year 12 Months 1923. 11/30/24. $ .68212 $.60800 $.528307 tion Cost of distribution, etc..... .34372 .33830 .334169 Taxes .07882 .08994 .104014 Renewals and replacements.. .03500 .03500 .035000 Total ..... $1.13966 $1.07124 $1.001490 If the $1 rate for gas had been in effect during the years 1922, 1923 and 1924, there would have been no net earnings and therefore no federal income tax payable or paid during 1922 and 1923, and there would have been no taxable income, after allowing for deductions, during the year 1924. In the foregoing statement of the plaintiff's actual operating expenses under the rates actually charged, I have not deducted this item of federal income taxes, amounting to 1.323 cents per 1,000 cubic feet of gas sold for the year 1922, and 2.741 cents per 1,000 cubic feet of gas sold for the year 1923, and 4.199 cents per 1,000 cubic feet of gas sold for the nominal year ended November 30, 1924. the benefit by crediting the sum against the cost of manufacturing and distributing gas. During the year 1922 such miscellaneous operating revenue reasonably amounted to 2.434 cents per 1,000 cubic feet of gas sold, during the year 1923, to 2.819 cents per 1,000 cubic feet of gas sold, and during the year ended November 30, 1924, to 2.0997 cents per 1,000 cubic feet of gas sold. 68. I find that the net actual necessary and reasonable cost to the plaintiff of the gas supplied by it, after deducting miscellaneous operating revenue, during the year 1922 was $1.11532, during the year 1923 was $1.04305, and during the year ended November 30, 1924, was $.980493, exclusive of any return whatever upon the property or investment of the plaintiff necessarily devoted to the service of its consumers. The evidence adduced in this record affords no ground for expecting that the prices of material and wages paid for labor will, on the whole, be reduced from the wages and prices now being paid by the plaintiff. 69. I find that the manufacture and distribution by the plaintiff of gas of a thermal content of not less than 650 British thermal units, during the year 1922, would have cost at least 10.28 cents per 1,000 cubic feet of gas made, or equivalent to 11.44 cents per 1,000 cubic feet of gas sold, more than the cost of production and distribution of the gas actually made and supplied during that year by the plaintiff; during the year 1923, would have cost at least 6.85 cents per 1,000 cubic feet of gas made, or equivalent to 7.15 cents per 1,000 cubic feet of gas sold more than the cost of production and distribution of the gas actually made and supplied during that period by the plaintiff, and during the year ended November 30, 1924, would have cost at least 4.81 cents per 1,000 cubic feet of gas made, or equivalent to 5.43 cents per 1,000 cubic feet of gas sold, more than the cost of production and distribution of the gas actually made and supplied during that year by the plaintiff. 70. I find that the fair and reasonable market value of the land (unimproved) owned by the plaintiff and used and useful in its gas business on the northerly side of Willow avenue, between Bay street and Tompkins avenue, as of June 1, 1923, and as of the present time, was and is at least the sum of $135,000. 67. The plaintiff derives an income from its profits on the sale of appliances, which is 71. I find that the fair and reasonable classified as miscellaneous operating revenue, market value of the land (unimproved) ownand also from the moneys received as rental ed by the plaintiff and used and useful in for a portion of its general office building, its gas business on the south side of Willow and of which the plaintiff gives its consumers avenue, between Bay street and Tompkins avenue, as of June 1, 1923, and as of the present time, was and is at least the sum of $7,400. 72. I find that of the land owned by the plaintiff at the corner of Post avenue and Clove road, a part only was used and useful, June 1, 1923, in the gas business, and that such part was the portion on which plaintiff's 's gas holder is erected, and which is distant about 332 feet from the southwesterly corner of Post avenue and Clove road, with a frontage on Post avenue of about 158 feet. I further find that the fair and reasonable market value of said portion of land, unimproved, is the sum of $7,600. 73. I find the cost to make plaintiff's property as new amounts to $18,281.91 which should be deducted from reproduction cost, and I further find that the cost to reproduce the manufacturing plant, distributing system, and other tangible property owned by the plaintiff and used and useful in its gas business, as of June 1, 1923, based upon the unit prices of labor and material prevailing as of that time, exclusive of working capital and going value, was and is, with the deduction for cost to make as new amounting to $18,281.91, at least the sum of $4,245,021.42, made up as follows: Land Buildings Mains and services Plant and holders Meters..... Tools and equipment Less cost to make new Undistributed costs upon methods of computation of such going value. No testimony was presented by any witness called in behalf of the defendants as to the amount or method of computation of the going value of the plaintiff, as of June 1, 1923, or the present time. I find that the reasonable and necessary going value of the plaintiff in its gas business, as of June 1, 1923, and of the present time, was and is at least the sum of $644,000. 76. I find that the cost to reproduce the manufacturing plant, distributing system and other tangible property owned by the plaintiff, used and useful in its gas business, as of June 1, 1923, inclusive of working capital and going value, was as of June 1, 1923, at least the sum of $5,164,021.42, made up as follows: Reproduction cost of property owned by New York & Richmond Gas Company and used and useful in its gas business as of June 1, 1923: Reproduction cost of tangible property as of June 1, 1923.... .$4,245,021.42 Investment in working capital reasonably required as of June 1, 1923 Investment in going value, as of June 1, 1923 Total. ...... 275,000.00 644,000.00 $5,164,021.42 $ 150,000.00 77. From all the facts appearing before 197,836.55 2,354,152.78 me, I find that the present value of the plain604,300.00 tiff's property used and useful in its gas 225,000.00 business, as of June 1, 1923, was $4,750,000. 32,014.00 I find, further, that the plaintiff's property $3,563.303.33 used and useful in its gas business, and the 18,281.91 present value of such property, has been increased and added to, since June 1, 1923, by $3,545,021.42 the net cost of the various additions, im700,000.00 provements, and extensions thereto which $4,245,021.42 have been made since June 1, 1923, as hereinafter more particularly shown. 74. The plaintiff submitted proofs before me of its average working capital actually employed in its gas business, amounting during the year 1922, to $343,496.63, during the year 1923, to $347,384.23, and during the nominal year ended July 31, 1924, $384,405.34, and the testimony of expert witnesses that the amount reasonably necessary was $344,146. I find that the reasonable and necessary working capital of the plaintiff in its gas business as of June 1, 1923, and as of the present time, was and is at least the sum of $275,000. 75. The plaintiff also submitted proofs before me of the amount of going value possessed by the plaintiff in its gas business, as of June 1, 1923, and as of the time of the trial, such evidence having been given by witnesses called in behalf of the plaintiff, based 78. I find that the actual reasonable cost of additions, extensions and improvements in and to the plaintiff's manufacturing plant, distributing system, and other tangible property, which should be added to the present value of the plaintiff's property as of June 1, 1923, amounted to $54,183.52 during the period from June 1, 1923, to December 31, 1923, and to $481,552.90 during the period from January 1, 1924, to October 31, 1924. The withdrawals from the property of the plaintiff used in its gas business, at unit prices prevailing as of June 1, 1923, amounted to $19,971.06 for the period from June 1, 1923, to December 31, 1923, and to $32,683.11 for the period from January 1, 1924, to October 31, 1924, making a net increase applicable to the present value of the plaintiff's used and useful property of $34,212.46 during the 10 F.(2d) 167 period from June 1, 1923, to December 31, 1923, and of $448,869.79 during the period from January 1, 1924, to October 31, 1924. 79. From all the facts appearing before me, I therefore find that the present value of the property owned by the plaintiff, and used and useful in its gas business, as of December 31, 1923, was the sum of $5,198,233.88, and as of October 31, 1924, the sum of $5,647,103.67, including working capital and going value and additions as herein before found. I further find that the minimum fair value of the property owned by the plaintiff, used and useful in its gas business and constituting a rate base on which plaintiff is entitled to a fair return was as follows: As of June 1, 1923... $4,750.000.00 4,785.000.00 5,233.869.00 80. I find that the cost to the plaintiff of all the fixed capital acquired by it, as shown by its books of account as of January 1, 1920, was $3,393,720.89. The like cost to the plaintiff of the plant and property acquired by it amounted, on July 15, 1901, to $2,337,234.24. Since July 15, 1901, there have been erected, installed, or acquired by the plaintiff, and added to its property, and there were in use in its gas business on January 1, 1920, certain additional land, plant, apparatus, mains and other property of which the actual cost to the plaintiff, less withdrawals since July 15, 1901, and exclusive of working capital, was and is not less than $1,056,486.65, making the total book cost to the plaintiff of such property owned and used by it as of January 1, 1920, at least the sum of $3,393,720.89. Since January 1, 1920, the net additions to the fixed capital of the plaintiff (including expenditures charged to work in progress account) amounted, as of December 31, 1922, to $279,763.97; as of June 1, 1923, to $345,962.41; as of December 31, 1923, to $555,692.66; and as of October 31, 1924, to $900,089.44. A credit adjustment was made, in 1921, in the account of fixed capital installed after December 31, 1908, amounting to $132. I find, therefore, that the cost to the plaintiff of all of its fixed capital acquired by it, as shown by its books of account, as of December 31, 1922, was $3,673,352.86; as of June 1, 1923, was $3,739,551.30; as of December 31, 1923, was $3,949,281.55; and as of October 31, 1924, was $4,293,678.33. I also find that the cost to the plaintiff of all of the fixed capital acquired by it, as shown by its books of account, together with working capital, which I have found in the amount of $275,000, and going value which I have found in the amount of $644,000, was as of December 31, 1922, $4,592,352.86; as of June 1, 1923, $4,658,551.30; as of December 31, 1923, $4,868,281.55; and as of October 31, 1924, $5,212,678.33. 81. The minimum investment in the plaintiff's property used and useful in its gas business, as found by the court in the prior action of the plaintiff in the Supreme Court of the State of New York, Richmond County, to wit, New York & Richmond Gas Company v. Public Service Commission et al., as of January 1, 1920, was $2,560,000. The net additions made to the plaintiff's property from January 1, 1920, to December 31, 1922, were as follows: January 1, 1920, to December 31, 1920 ... January 1, 1921, to December 31, 1921 January 1, 1922, to December 31, 1922 .$30,767.93 .$30,555.56 ..$84,996.70 The work in progress on additions to the plaintiff's property amounted, as of December 31, 1922, to $133,443.78. I therefore find that the minimum investment in the plaintiff's said property, upon the basis of the court's findings in the prior action, together with the net additions to the property, was, as of December 31, 1922, at least the sum of $2,839,763.97. The net additions to the plaintiff's property from January 1, 1923, to June 1, 1923, amounted to $7,481.66, and the work in progress on additions to the plaintiff's property amounted as of June 1, 1923, to $192,160.56. I therefore find that the minimum investment in the plaintiff's said property, upon the basis above stated, was, as of June 1, 1923, at least the sum of $2,905,962.41. The net additions to the plaintiff's property from January 1, 1923, to December 31, 1923, amounted to $125,762.26, and the work in progress on additions to the plaintiff's property amounted, as of December 31, 1923, to $283,610.21. I therefore find that the minimum investment in the plaintiff's said property, upon the basis above stated, was, as of December 31, 1923, at least the sum of $3,115,692.66. The net additions to the plaintiff's property from January 1, 1924, to October 31, 1924, amounted to $22,740.22, and the work in progress on additions to plaintiff's property amounted as of October 31, 1924, to $605,266.77. I therefore find that the minimum investment in the plaintiff's said property, upon the basis above stated, was, as of October 31, 1924, at least the sum of $3,460,089.44. 82. The plant, machinery, and equipment used in the gas business of the plaintiff company have been and are maintained in excellent operating condition; proper repairs, renewals, and replacements have been made as and when needed, and the same are now in as high a state of efficiency as if new, except in so far as certain buildings have been temporarily affected by the extensions in progress since June 1, 1923. 83. The reasonable and proper rate of return upon the present value of the plant, distributing system, and other properties owned by the plaintiff, and used and useful in its gas business, I find to be not less than 8 per cent. per annum. At no time since the enactment of chapter 899 of the Laws of 1923 has the plaintiff earned such return at the rate, prescribed, therein, of $1 per 1,000 cubic feet of gas sold, either upon the amount of the present value of its property or upon the amount of the minimum investment in such property. 84. The effect of the enforcement of the rate of $1 per 1,000 cubic feet of gas sold, prescribed by chapter 899 of the Laws of 1923, if applied to the actual operations of the plaintiff's gas business for the year ended December 31, 1922, aside from the additional cost necessary to furnish gas of the statutory standard of 650 British thermal units, would have been to impose upon it a direct operating loss of at least $65,144.35, or 10.298 cents per 1,000 cubic feet of gas sold, in addition to depriving it of any return upon the prop erty owned by it employed in its gas business, as more fully set forth as follows: In reaching and stating the foregoing figures as to the effect of an enforcement of the $1 rate for gas, I have eliminated the amounts paid for federal income taxes, and also the portion of insurance and stable and garage expense which I have allocated as chargeable to capital. If such $1 rate had been in force, no federal income tax would have been payable upon the plaintiff's gas operations during the periods stated. The above-indicated operating loss, inclusive of the sum of 11.44 cents, per 1,000 cubic feet of gas sold, as the additional cost of furnishing gas of the standard of 650 minimum British thermal units as prescribed by chapter 899 of the Laws of 1923, would have amounted to 21.738 cents per 1,000 cubic feet of gas sold, or approximately $137,000, exclusive of federal income tax, and exclusive, also, of any return whatever on the plaintiff's property, used in its gas business. 85. During the year ended December 31, 1923, the statutory rate of $1 per 1,000 cubic feet of gas to private consumers, if applied ditional cost necessary to furnish gas of the to the actual operations, aside from the adstatutory standard of 650 British thermal units, would have deprived the plaintiff of ful in its gas business, and have resulted in any return upon its property used and usethan 1.5 cents per 1,000 cubic feet of gas a direct operating loss of $11,460.41, or more sold, as follows: Per M Cu. Ft. Amount. of Gas Sold. $422,274.72 $ .60800 234,953.20 al income tax)...... 43,435.68 Renewals and replace ments Total operating expenses Less miscellaneous operating revenue .33830 .06253 24,308.45 .03500 .... $724,972.05 $1.04383 Taxes (exclusive of feder al income tax) 19,578.07 .02819 Net operating expenses..$705,393.98 $1.01564 of gas at statutory rates: .02434 Commercial sales, 692, 152,700 cu. ft. at $1.00.$692,152.70 $1.00000 Net operating expenses ..$697,181.35 $1.10209 Municipal sales, 2,374,500 Municipal sales, 2,248,800 cu. ft. at 75 cents...... Total sales Operating loss 1,686.00 .75000 .$632,037.00 $ .99911 .$693,933.57 $.99914 $ 11,460.41 $ .01650 The foregoing figures are also exclusive of federal income tax and the portion of insurance and stable and garage expense, which $ 65,144.35 $ .10298 I have allocated as chargeable to capital. cu. ft. at .75. 1,780.87 .75000 Total sales, 694,527,200 cu. ft. 10 F.(2d) 167 been to yield a net income from operations of about $4,500, or .6328 cents per 1,000 cubic feet of gas sold, yielding practically no return upon the property owned by the plaintiff and employed in its gas business. Such operating loss, inclusive of the addition- the effect of such enforcement would have al cost of furnishing gas of a standard of not less than 650 minimum British thermal units, would have been approximately .088 cents per 1,000 cubic feet of gas sold, or more than $61,000, exclusive of federal income taxes, for reasons hereinbefore stated, and exclusive, also, of any return upon the property of the plaintiff used and useful in its gas business. 87. The enforcement of chapter 898 of the Laws of 1923, eliminating the, service charge of 75 cents per meter per month from the rates prescribed by the commission's order of August 30, 1922, and prohibiting that portion of the rate for gas charged by the plaintiff in excess of the maximum rate of $1.20 per 1,000 cubic feet, authorized by the commission, would have resulted as follows, if applied to the operations of the year ended December 31, 1923: .334168 $.959500 · Total sales, 694,527, 200 cu. ft....... .$832,364.11 $1.1985 operating (exclusive of federal in come taxes) ..... 705,393.98 1.01564 Gross operating revenue from sales of gas at Net income under $1.20 rate $126,970.13 $ .18286 statutory rates: Commercial sales, 710. Exclusive of any provision for federal 195,700 cu. ft. at $1.00.$710,195.70 $1.000000 income taxes (which must, however, be in Municipal sales, 2,475,300 cu. ft. at $.75.... 1,856.47 .750000 Total sales $712,052.17 $.999130 The above-stated net income, exclusive of any provision for federal income taxes, which must, however, be included in the operating expenses, and of the portion of insurance and stable and garage expense, which I have allocated as chargeable to capital, would have yielded a return upon the property of the plaintiff used and useful in its gas business as of June 1, 1923, of but .91 per cent. on the present value, and of but 1.49 per cent. on the minimum investment as found by the court in the prior suit of this plaintiff, and as found by me on the evidence herein, plus net additions to June 1, 1923. Inclusive of the sum of 5.43 cents per 1,000 cubic feet of gas sold as the. additional cost of furnishing gas of the standard of 650 minimum British thermal units, as prescribed by chapter 899 of the Laws of 1923, cluded in the operating expenses, in computing the rate to which the plaintiff is legally entitled), and of the portion of insurance and stable and garage expense which I have allocated as chargeable to capital, the above-stated net income would have yielded a return upon the property of the plaintiff, used and useful in its gas business as of June 1, 1923, of but 2.67 per cent. upon the present value, and but 4.37 per cent. upon the minimum investment, as found by the court in the prior suit of this plaintiff, plus net additions to June 1, 1923, as found by me, and a return of 2.65 per cent. upon the present value as of December 31, 1923, and of 4.07 per cent. upon the minimum investment as of December 31, 1923, and such amounts of return each would have been, and are, inadequate, unreasonably low, confiscatory of the plaintiff's property, and violative of the constitutional rights of the plaintiff. 88. The provisions of chapter 899 of the Laws of 1923, prohibiting the plaintiff from furnishing, in the city of New York, gas of |