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change, from time to time, standards of the notify the commission whether the terms of purity, illuminating power, and heating pow- the order are accepted and will be obeyed, er, and standards for the measurement there and that every order of a commission shall of, of gas to be manufactured, distributed, or take effect at a time therein specified, and sold by persons, corporations, or municipal- shall continue in force either for a period ities for lighting, heating, or power purposes, which may be designated therein, or until notwithstanding that other standards of the changed or abrogated by the commission, unpurity, illuminating power, and heating pow- less such order be unauthorized by the said er of gas and standards for the measurement chapter or any other act or be in violation thereof may have been fixed by general or of a provision of the Constitution of the special statute, and by order to require the state or of the United States. gas so manufactured, distributed or sold to 31. Prior to the amendment of said chapequal the standards so fixed by it, and to pre- ter 480 of the Laws of 1910 by chapter 134 scribe, from time to time, the reasonable of the Laws of 1921, the plaintiff was adminimum and maximum pressure at which vised by counsel and believed that, under gas shall be delivered by such persons, core the construction placed by the courts of the porations, or municipalities.

state of New York upon the said chapter 29. By section 72 of the said chapter, as 480 of the Laws of 1910, before it was so so supplemented and amended, relating to amended, the Public Service Commission of complaints as to the quality and price of the state of New York for the First district, gas, it is provided that, after a hearing and as then constituted, had no power to permit after such an investigation as shall have been the plaintiff to increase the rate which it made by the said commission or its officers, might charge for gas supplied, in excess of agents, examiners, or inspectors, the said the maximum rate of $1 per 1,000 cubic feet commission may, by order, fix just and rea- prescribed by chapter 125 of the Laws of sonable prices, rates, and charges for gas to 1906 of the state of New York. be charged by a gas corporation, for the 32. On or about the 27th day of Janservice to be furnished, notwithstanding that uary, 1920, the plaintiff commenced an aca higher or lower price has been theretofore tion in the Supreme Court of the state of prescribed by general or special statute, con- New York, in and for the county of Richtract, grant, franchise condition, consent, or mond, against Lewis Nixon, as and constitutother agreement, and may order such im- ing the Public Service Commission of the provement in the manufacture, distribution, state of New York, for the First district, or supply of gas, or in the methods employed Charles D. Newton, as Attorney General of by a gas corporation, as will in its judgment the state of New York, and Joseph Maloy, be adequate, just, and reasonable, and that as district attorney of the county of Richany such change in price shall be upon such mond, wherein and whereby the plaintiff terms, conditions, or safeguards as the said sought to have chapter 125 of the Laws of commission may prescribe. By section 72 the state of New York, passed in the year of the said chapter, it is further provided 1906, in so far as it prohibited the plaintiff that the price fixed by the said commission from charging or receiving for gas manuunder the said section 72, or under the said factured or sold by it in the borough of subdivision 5 of section 66, shall be the Richmond, a sum per 1,000 cubic feet in exmaximum price to be charged by such gas cess of $1 per 1,000 cubic feet, declared ilcorporation for gas for the service to be fur- legal and void, because in contravention of nished within the territory and for a period section 10, art. 1, of, and of the Fourteenth to be fixed by the said commission in the or- Amendment to, the Constitution of the Unitder, not exceeding three years, except in the ed States, and of section 6, art. 1, of the case of a sliding scale, and thereafter until Constitution of the state of New York; and the commission shall, upon its own motion or the plaintiff further prayed that it be grantupon complaint of any corporation, person, ed a permanent injunction against the deor municipality interested, fix a higher or fendants and each of them restraining and lower maximum price of gas to be there- enjoining them and each of them from enafter charged.

forcing or attempting to enforce the provi30. By subdivision 1 of section 23 of the sions of said act of 1906 against the plainsaid chapter, so supplemented and tiff, and for other and further relief as in amended, it is provided that, within a time said complaint is more fully set forth. specified in the order of the commission, 33. Thereafter and on or about May 21, every person and corporation upon whom it 1920, the Supreme Court of the state of New is served must, if so required in the order, York, at the Appellate Division thereof for

as

10 F.(20) 167 the Second Department, by order, allowed law, that chapter 125 of the Laws of 1906 the city of New York to intervene as a party of the state of New York, as amended by defendant therein.

chapter 604 of the Laws of 1916, in so far 34. The defendants named in the said as it provided that the plaintiff should not complaint in the action mentioned in the charge or receive for gas manufactured, furfinding numbered 32 hereof were duly served nished, or sold by it a sum per 1,000 cubic with the summons therein, and duly appear feet in excess of a rate of $1, had been since ed and respectively filed answers in the said January, 1918, and then was, confiscatory action. Thereafter, and on May 26, 1920, and deprived the plaintiff of its property the said cause was duly referred to Hon. Als without due process of law, in violation of bert H. Sewell, official referee, to hear, try, the Constitution of the state of New York, and determine the same and all the issues and of the Fourteenth Amendment of the therein. The issues in the said action were Constitution of the United States, and that duly tried before the said referee, and the the plaintiff should have the other and furproofs and allegations of the respective par- ther relief against the defendants in that ties duly heard and considered, and thereaft- suit which was asked for in the complaint er such proceedings were had and taken in therein. the said cause that the said referee duly 35. Thereafter, and on the 11th day of made his findings of fact and conclusions of January, 1921, a judgment, final in its charlaw dated January 10, 1921, wherein and acter, was duly made and entered upon the whereby the said referee found, among oth- said findings of fact and conclusions of law er things, that the total reasonable cost of of said referee, which adjudged that chapter gas delivered to its consumers by the plain- 125 of the Laws of 1906 of the state of New tiff in cents per 1,000 cubic feet of gas sold York, in so far as it prohibited the plainwas, aside from any return upon any of the tiff from charging or receiving more than property owned by the plaintiff and used by the rate of $1 per 1,000 cubic feet for the it in the service of its consumers, 92.82 sale of gas in the borough of Richmond, had cents during the year 1918, 97.559 cents dur- been since January 1, 1918, and then was, ing the year 1919, 95.894 cents during the confiscatory, and deprived the plaintiff of its first seven months of the year 1920, and property without due process of law, in con$1.22365 for the month of August, 1920, and travention of the Constitution of the state wherein and whereby the said referee further of New York, and of the Fourteenth Amendfound that the amount invested in the plant ment to the Constitution of the United and property of the plaintiff, used and use- States, and that said statute had been since ful in its gas business as of January 1, 1920, January 1, 1918, and then was, invalid, as was at least the sum of $2,560,000, and violative of said provisions of the Constituwherein and whereby the said referee fur- tion of the state of New York and of the ther found that the plant, machinery and United States, and adjudged and decreed equipment used in the gas business of the that the plaintiff was entitled to the relief plaintiff had been and then were maintained prayed for, and granted the permanent inin excellent operating condition, proper re- junction prayed for in the said complaint. pairs, renewals, and replacements had been In and by the said judgment, it was furmade as and when needed, and the same were ther adjudged and decreed that, at any time then in as high a state of efficiency as if while the injunction therein before granted new; that the reasonable and proper rate of remained in force, any party thereto, or his return upon the capital invested in the or its successors or assigns, might apply, plant, distributing system, and other prop- upon notice, at the foot thereof, to vacate erties owned by the plaintiff and used and or modify the injunction, if it could be useful in its gas business was not less than shown that by changed conditions the stat8 per cent. per annum, and that the require- utory rate was no longer confiscatory in efments of chapter 125 of the Laws of 1906, as fect under such new conditions. amended, as to the candle power of the gas 36. Thereafter an appeal from the said manufactured and sold by the plaintiff, un- final judgment was duly taken by the said der its operating conditions, and by the use defendants to the Appellate Division of the of the materials it was and had been able to Supreme Court of the state of New York, procure with reasonable diligence, were and in and for the Second Judicial Department; for two years last past had been unreason- and on October 6, 1922, the said Appellate able, confiscatory, impossible of perform- Division duly dismissed the appeals of all ance, and invalid, and wherein and whereby of the said defendants, except the appeal of the said referee found, as a conclusion of the defendant the city of New York, and thereafter and on November 10, 1922, the The service charge of 21/2 cents per day, said Appellate Division dismissed the appeal as prescribed by the commission, was subof the defendant the city of New York. stantially equivalent to about 25 cents per Thereafter the said defendant the city of 1,000 cubic feet of gas sold by the plaintiff. New York made application to the Court of

10 F.(20)-13

38. Thereafter the said commission, purAppeals of the state of New York, for leave suant to the provisions of the said order to appeal to that court, and on February and the authority vested in the commission 2, 1923, the said Court of Appeals denied by subdivision 1 of section 23 of the Pubthe said application to appeal, and the said lic Service Commission Law as amended, judgment so entered in said action on Jan- caused a certified copy of the said order of uary 11, 1921, became and is in all things August 30, 1922, to be duly served upon the absolute.

plaintiff, and on or about the 15th day of 37. On or about the 20th day of May, September, 1922, the plaintiff duly notified 1921, the said commission, upon its own mo

the said commission in writing that the tion, duly instituted a proceeding before it terms and conditions of the said order were for the purpose of investigating the rates accepted by the plaintiff and would be charged by the various gas corporations in obeyed. The notification of acceptance, sent the city of New York, including the plain- by the plaintiff to the said commission as tiff, and their operating expenses, revenues,

above stated, read and provided as follows: service, properties, and investment, and

"The New York & Richmond Gas Commade an order for a hearing to be held be- pany hereby acknowledges receipt on Sepfore it in its case No. 79 for that purpose. tember 5, 1922, of a copy of an order certiThereafter such proceedings were had that fied by the secretary of the commission to on or about the 30th day of August, 1922, have been adopted by the commission on Authe said commission rendered and filed an gust 30, 1922, in the above-entitled proceedopinion, and certain reports supplementary ing, prescribing the rates to be charged for thereto, setting forth its findings and conclu- gas by the said company to all of its cussions, and the reasons for the making and tomers, except the municipality of the city entry of orders, prescribing a calorific stand- of New York, and the classifications of the ard for gas to be furnished and the rates gas service furnished to such customers.

The New York & Richmond Gas Company for such gas to be charged by certain gas corporations, including the plaintiff. There- order of August 30, 1922, and the terms

hereby notifies the commission that the said upon, and contemporaneously with the mak- and conditions thereof, are accepted by the ing and entry of an order prescribing a cal

company, and will be obeyed. orific standard for gas as hereinafter more

"In accepting, and agreeing to obey, the fully described, the said commission made said order of August 30, 1922, conditioned and entered an order in its case No. 79-S for the period therein prescribed, the New wherein and whereby the said commission York & Richmond Gas Company does not ordered that on and after the 1st day of waive its right, upon any hearings or proNovember, 1922, and until the 30th day of ceedings hereafter had, to a return upon the October, 1923, and thereafter until the said full value of its property at such time, and commission should otherwise order, the just to reimbursement for losses sustained by it and reasonable rates to be charged by the since January 1, 1917, by reason of inadeplaintiff to all of its consumers in the city quate statutory rates enforced against it; of New York, other than the city of New

nor does the company admit that the rates York, and the classifications of the service prescribed by the said order are adequate or furnished to such consumers, should be as

that they are such as to afford for this comfollows:

pany just compensation for the gas service First 100,000 cubic feet of gas per meter per furnished by it, or a fair return upon its inmonth, $1.20 per M cu. ft.

vestment in its gas property, much less upNext 200,000 cubic feet of gas per meter per

on the present value thereof. This company month, $1.15 per M cu. ft. Next 300,000 cubic feet of gas per meter per

excepts to the recital in the said order of month, $1.10 per M cu. ft.

August 30, 1922, of the report made and Next 400,000 cubic feet of gas per meter per filed herein by Hon. B. Meredith Langstaff, month, $1.05 per M cu. ft,

assistant counsel, a copy of which has at no All over 1,000,000 cubic feet of gas per meter time been furnished to this company, and as per month, $1.00 per M cu. ft.

to the contents of which this company was Plus a monthly service charge of seventy-five

cents (750), or two and one-half cents never afforded an opportunity to be heard, (2120) a day.

and this company reserves all exceptions to 10 F.(20) 167 any and all statements contained in the said than 537 British thermal units per cubic report.

foot, and a daily average of not less than "Increases in the cost of operation, par- 525 British thermal units per cubic foot on ticularly those due to the high prices neces- any three consecutive calendar days in any sarily paid for coal and coke, justify an in- month, all as more fully set forth in the said crease rather than a decrease of the rates order, and wherein and whereby it was furnow charged by this company. In defer- ther directed that the said order should take ence, however, to the views of the commis- effect on the date specified therein, and sion, reached after extended investigation, should continue in effect until changed, modand in an expectation or hope that, as in- ified or abrogated by the said commission, timated by the commission in its opinion in and that, within ten days of the service of a the Case of the Consolidated Gas Company copy thereof, each gas corporation therein decided concurrently with this case, some described, including the plaintiff, should noreductions in operating expenses during the tify the said commission whether the said period fixed by the commission for the con

order was accepted and would be obeyed. tinuance of the rates now prescribed may 40. Thereafter, the said commission render such rates more nearly adequate, the caused a certified copy of the said order in New York & Richmond Gas Company has its case No. 108, of August 30, 1922, to be determined to, and does hereby, accept the duly served upon the plaintiff ; and on or said order of August 30, 1922, upon the about the 15th day of September, 1922, the terms and conditions herein set forth.”

plaintiff duly notified the said commission 39. On or about the 20th day of May, in writing that the terms and conditions of 1921, contemporaneously and in conjunction the said order in case No. 108 were accepted with its said proceedings as to rates in case and would be obeyed by the plaintiff. The No. 79, the said commission duly instituted plaintiff's acceptance of the said order of the a proceeding before it, upon its own motion, commission in case No. 79-S was based and in its case No. 108, relative to the standards conditioned on the contemporaneous entry of purity, lighting power, and heating pow- of the order in case No. 108 and the continer of gas and the standards of measurement

uance of the calorific standard thereby fixed. thereof, in the city of New York and subur

41. Thereafter, and in pursuance of the ban territory. Such proceedings were had in said orders of the commission in cases Nos. the said last-mentioned proceeding that on

79-S and 108, the plaintiff duly filed with or about the 30th day of August, 1922, con

the said Commission, and duly posted and temporaneously with its said rate order in published as required by law and order of case No. 79-s, the said commission made and the said commission, its tariff schedules, setentered an order in its case No. 108, where- ting forth the rates, charges, and classificain and whereby the commission found and tions to be in force for the service to be furdetermined that the standard of 22 candle nished by the plaintiff, in accordance with power theretofore prescribed by statute was

the said orders of the said commission in its unreasonable, uneconomical, and improper;

case No. 79-S and case No. 108, of August that the continuance of such standard would 30, 1922, and the plaintiff has complied in not be in the public interest, and that a

all respects with the terms, provisions, and standard of quality and measurement based upon the heating power of gas, as therein- conditions of the said order in case No. 79-S after more particularly specified, should be and of the said order in case No. 108. fixed by the commission, and wherein and

42. The rates charged by the plaintiff to whereby the said commission directed that its general consumers, from January 1, 1922, on and after October 21, 1922, each gas cor

to October 31, 1922, were $1.25 per 1,000 poration supplying manufactured gas in the cubic feet of gas furnished, with a service boroughs of Manhattan, Brooklyn, the charge of 75 cents per meter per month, or Bronx, Queens, and Richmond, comprising 27/2 cents per day; from November 1, 1923, the city of New York, and in the franchise to June 8, 1923, the rates prescribed by the territory of the Queens Borough Gas & Elec- said order of the commission of August 30, tric Company, in the county of Nassau, 1922; and since June 8, 1923, the plaintiff should, in lieu of the existing standard or has charged, in pursuance of the prelimistandards, furnish to its consumers a quality nary injunction herein granted, an equivaof gas which should comply with certain re- lent flat rate of $1.45 per 1,000 cubic feet of quirements therein prescribed including a re- gas, with certain gradations for quantity quirement that, under specified conditions, consumption. The rate charged by the the gas furnished should have a total heat- plaintiff to the city of New York was 75 ing value on a monthly average of not less cents per 1,000 cubic feet, in accordance with the provisions of chapter 736 of the Laws of the state of New York, entitled "An act of 1905 of the state of New York.

to amend the Public Service Commission Since October 1, 1922, the gas operations Law, in relation to charges by gas corporaof the plaintiff have been carried on under tions,” the said chapter 480 of the Laws of the calorific standard of measurement of 1910 was amended, by adding thereto a new quality, as prescribed by the said order of subdivision, to follow subdivision 5, to be August 30, 1922 and prior to that date the subdivision 6 of said section, to read as folplaintiff had also been observing a calorific lows: standard of measurement of the quality of “6. Service Charges Prohibited. Every gas made by it. The average calorific con- gas corporation shall charge for gas supplied tent of the gas supplied by the plaintiff dur- a fair and reasonable price. No such coring the year 1922 was approximately 550 poration shall make or impose an additional British thermal units per cubic foot, and charge or fee for service or for the installathe average during each of the years 1923 tion of apparatus or the use of apparatus and 1924 was slightly above 537 British installed.” thermal units per cubic foot.

By the said act it is provided that the same 43. By chapter 899 of the Laws of 1923 shall take effect immediately, and the said of the state of New York, entitled "An act act took effect, by the signing thereof by the to amend the Public Service Commission Governor of the state of New York, on June Law, in relation to the charge for illumi- 1, 1923. nating gas in cities containing a population 46. Under the Public Service Commission of one million or over," the said chapter Law as amended by chapter 899 of the Laws 480 of the Laws of 1910 was amended, by of 1923, the commission has not the power or inserting therein a new section, to follow jurisdiction to prescribe, authorize, allow, section 67, to be section 67-a, to reads as fol- or fix, for the plaintiff or other.gas compalows:

nies in the city of New York, a rate in excess "§ 67-a. Charge for Gas in Cities of One of $1 per 1,000 cubic feet for gas of not less Million or More. A gas corporation en- than 650 British thermal units per cubic foot, gaged in the business of manufacturing, fur- measured under normal conditions of temnishing or selling illuminating gas in a city perature and atmospheric pressure. containing a population of one million or 47. In the present suit, the periods covover shall not charge or receive for gas fur- ered by the proofs before me as to operatnished or sold in such city a sum per one ing revenues and expenses of the plaintiff's thousand cubic feet in excess of one dollar, gas business included the calendar year of nor furnish in such city gas of a standard 1922, the calendar year of 1923, and the 12 less than six hundred and fifty British months' period ended November 30, 1924. thermal units per cubic foot, measured un- The proofs presented by the plaintiff also der normal conditions of temperature and covered the investment in the plaintiff's gas atmospheric pressure. The Public Service property as of the years 1922, 1923, and Commission, notwithstanding any other pro- 1924, and the reproduction cost and present vision of this chapter, shall not allow a rate value of such property. or charge in the case of such cities in excess 48. I find that the plaintiff necessarily of such sum."

and reasonably used, on the average, in the By the said chapter 899 of the Laws of manufacture of gas of the quality supplied 1923 it is provided that the said act shall take during the year 1922, 2.883 gallons of gas oil effect immediately, and the said act took ef- per 1,000 cubic feet of gas made. During fect, by the signing thereof by the Governor the year 1923, the plaintiff necessarily and of the state of New York, on June 2, 1923. reasonably used, on the average, 2.865 gal

44. The city of New York, within which lons of gas oil per 1,000 cubic feet of gas the plaintiff is engaged in the business of made, and during the year ended November manufacturing, furnishing and selling illu- 30, 1924, 2.85 gallons per 1,000 cubic feet, minating gas, is a city containing a popula- in the manufacture of gas of the respective tion of 1,000,000 or over, and is the only qualities supplied during those periods. city of such size and population within the 49. For the manufacture of gas of a destate of New York. The Constitution of the livered content of not less than 650 British state of New York, in its classification of the thermal units per cubic foot, as prescribed cities of the state, does not state or rec- by chapter 899 of the Laws of 1923, there ognize a classification of cities under which would be required not less than 4.7 gallons one class is made up of cities containing a under average conditions, and at least 5 galpopulation of 1,000,000 or over.

lons per 1,000 cubic feet during certain times 45. By chapter 898 of the Laws of 1923 of the year.

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