New-York tribune., 1906-06-21
UPH0LDS SO-CENT LAW.
GAS COMPANY TO APPEAL.
appeUQte Division Not Ham pered
bu Federal Courts Decisions.

The Consolidated Gas Company again had
setback yesterday in its efforts TO have con-
sumers pay the 81 rate for Illuminating gas in
spite OF the Law providing for S0-cent charges,
when in an opinion handed down by the Appel
late Division Of the Supreme Court, in two cases
brought TO test the validity of the So-cent law,
the law was upheld and decisions in favor of
consumers were given The two cases were
those OF Jacob Richman against the Consoli-
dated. in which he had endeavored TO prevent
the company from cutting of his gas supply
and Of Dr. Alexander r. Grossman prac
tically similar grounds.
Justice Leventritt in the Supreme Court, had
denied motion for a temporary injunction for
Richman. but in the of DR.. Grossman, a
reargument. had granted permanent injunc-
tion. The Consolidated appealed from the latter
decision and was again beaten, while in the for
:ner Richnan appealed and the decision Of Jus
lice Leventritt was reversed and the injunction
prayed for was granted.
The two decisions. however not final. as
the opinion Of Justice Laughlin particularly
states that the decisions are only given so that
the Court Of Appeals may finally decide the
cases on their merits. 1t is understood that an
appeal viii be taken at once by counsel for the
Consolidated Gas Company.
John a. Carver of counsel for the company,
said last night:
nccar cases. and do not interfere in any way
with the opinion OF Judge Lacombe in the United
States Circuit Court declaring the 81 rate still
prevailing. II any other consumers desire &c
refuse to pay the 20 per cent they can do so. but
only by going through the same litigation as the
TWO plaintiffs in the cases decided yesterday
The decisions do not affect in any way any one
but Or. Grossman and Mr. Richman-
RIGHT To REGULATE PRICE.
Justice LaughIin wrote the opinion of the
court in which Presiding Justice O'Brien and
Justice Patterson concurred. In speaking of the
company Justice Laughlin says:
IN exercising public franchise and special
privileges, II owes duty to the public to fur
nish gas TO the consumer at reasonable rates.
which the Legislature may regulate and the
courts may enforce. 1t is competent for the Leg
isiature 70 regulate the price that the defendant
may charge consumers provided IL does not re-
oure il 70 supply gas at q rate that will not
ADMIT Of reasonable profit TO the stockholders
upon the actual value of the plant and property
OF the company.
The justice says that the company may at
any time have recourse 10 the courts. If injus
tioe is done in this matter. and If after judi
csl Investigation its complaint should be sus-
tsined Il would be the duty of the court TO de-
clare the law unconstitutional and void. In
his case. he says both the Legislature and the
state commission appear to have acted with due
elaboration. and after careful investigation Of
the essential facts. He continues:
L IS 2 general rule of law that until judicial
determination upon a final hearing a statute Is
presumed To be valid. and although its enforce
fnent may be temporarily enJoined. its opera
ton canrot be suspended. The practical effect
~ the rule is that until the statute is adJudged
n be unconstitutional by a court Of competent
jurisdiction the legal rate which consumers are
ffG-tTe6 10 pay. and upon payment of which
lhey entitled 10 a continuation of the ser
flc> IS that prescribed by the last enactment of
the legislature, pending the decision Of the
olsstoE 10 the constitutionalty of the stat
ate Therefore the company should be per-
H.titfd 20 coerce the consumers into paying the
od rte
Ins'ics Lauglllin says that consumers who do
~ Hisn 20 incur the annoyance, expense or
feseTving the right 10 recover the excess. They
VII 5e fully protected in this respect, he con-
1aues by the provision made in the recent order
"f The United States Circuit Court. The com
ps2y. !. 81 wishes 10 risk the penalty under the
ftatu-e-''wticn very likely cannot be collected"
ne ssEe-Tay demand payment at the old rate.
s2d II may bring action at law
PRIVATE ACTION NOT BARRED.
TIE justice recites in detail the circumstances
q, tl:e present case and considered the bill in
equity brought IN tie federal court. He says
= is to be observed that consumer OF gas. eA-
neEt ihe city Of New York, was made party
10 .le 81, n TIE federal court. Hs ADDS taat
of e'Grse tie city does not represent private
SSasCn,ers, and cannot appear for them in ;ae
coatiuued third page