New-York tribune., 1906-06-09
GAS ORDER CONTINUED.
DOLLAR RATE TO BE Paid.
Judge Lacombe Does Not Bar Ac.
ton by Indiadual Consumers.

".
Judge Lacombe. OF the United States Circuit
Court, yesterday handed down an opinion in the
motion for permanent injunction brought by
the Consolidated Gas Company against the city
and state of New York. to prevent the law max
Eng SO cents a thousand cubic feet the price for
illuminating gas operative and decided partly
in favor of the complainant company BY the
decision of Judge Lacombe the temporary in
junction. obtained some weeks ago. is continued
until the United States Supreme Court passes on
the constitutionality of the law. In the mean
time. under the opinion. there is much work to
be done. which should keep the gas question
before the public for many months. Judge La
oombe referred 10 the question of expediency and
wrote that he appreciated the necessity of quick
action In order TO obtain this he suggested that
counsel on both sides refer ali questions which
are debatable and still open to a special master
This officer of the court will be able during the
three summer months TO prepare all of these
nooted questions and have them in proper form
10 be submitted to the United States Circuit
Court at the November term when the case
would undoubtedly be argued. Judge Lacombe
said in this connection that he had doubt
that the Importance and necessity of early
trial would gain a preference for the case on the
calendar.
Should the trial term of the United States
Circuit Court decide against the state and city
again. or. in fact, should il decide against the
complanants, appeal will undoubtedly be
taken 1t would be at least two years, despite
special haste. before the United States Supreme
Court can pass on the constitutionalty of the
law and whether it is against the Fourteenth
Amendment as alleged by the complainant cor
poration.
In the mean time the Consolidated Gas Com
=
2 thousand cubic feet. but Judge Lacombe. In
his opinion. ordered various rules whereby this
was TO be collected and returned to the consum-
ers if the United States Supreme Court should
decide adversely to the gas company Although
this amount be collected under the court
rulings. the 20 per cent above the S0-cent rate
will still be turned TO the court, and by the
time the Supreme Court of the United States
has passed the questions it should amount
10 millions. In case the Supreme Court decides
adversely TO the company. this amount will have
to be returned. but If the company wins. the
moneys can be taken without further trouble.
DECISION QUOTES TWO EXTREMES.
Judge Lacombe's opinion covers eighteen
closely typewriter pages, and goes into the
arguments advanced last Monday. The
continued temporary injunction is made against
the State of New York the State Gas Com
quotes two extremes showing the powers of
the state compared with the Consolidated Gas
Company. Judge Lacombe says:
corporation which undertakes for its own
emolument to supply gas 10 the inhabitants Of
q municipality, under charters and franchises
from the state which allows il embark in
such industry and invites its stockholders to in
vest their money therein. is engaged in what is
callea public service or a public utility
and therefore is under the supervision inquisi-
~ aa1ori o,f4 4loac fna,
IN which II conducts its business. If, untram-
cleo by competition, il charges price far above
al reasonable cost 10 the helpless consumer. who
Inust pay thai price or go without, while it re-
celVes an eXOrbitant return such OF its prop
erty as is invested in the enterprise. the state
may step IN and reduce that price to such sum
as will. taking everything into consideration, be
reasonable return upon what has been ad-
Tentured in the enterprise the faith of the
states franchises No one disputes this propo-
sition.
But in fixing such price the state should itself
DC fair and reasonable, and should certainly stop
snort OF confiscation. II il We're established by
uncontroverted proof that in materials, labor
and wear and tear Of plant at the lowest con-
ceNable valuation the actual cost of producing
gas Of a proper standard in the holders was so
cents LOCO cubic feet, IL would be confisca-
uon fGr The state TO require the manufacturer to
deliver such gas 10 all consumers at cents n
1000 cubic feet. Such act of the Legislature
would be obnoxious TO the constitution of the
state 10 the Constitution of the United States
and 10 common right and justice. There may be
persons who dispute this proposition, but it may
]
anarchy.
The only course left for the gas company is to
DIlng some direct suit, such this, TO test the
toAsttuuonalty Of the action OF the Gas Com
mission and Of the Legislature in fixing so
0ils fdle, ana meanwhile 10 preserve It's rights
70 the difference by demanding payment thereof
sumer.
IN the case at bar these arguments ION the
states acton) seem wholly academic. Irrespec-
i've OF any action OF the Gas Commission the
legislature has itself fixed the S0-cent rate and
mere is nothing TO indicate upon what it predI-
,sted such action. For aught know IL may
nave reached the conclusion that the commits
soh was In error in not including the franchises
a. thelr taxable value in the estimate Of COM
ilaliants s property; and may, at the same time,
was proper return TO be received by the owner
OF such property. This brings TO the funda-
mental question presented by the pleadings, Is
.ne rate fixed by the Legislature, 50 cents, so
io@ as 10 be unjust confsca tory? AS was
indicated At the outset OF this opinion there
can be no intelligent answer given TO this ques-
ton until the whole case is presented upon tes-
umony taken. not ex parte, but according 70 the
rules for taking testimony in equity causes
therefore, until the court at final hearing may
nave the opportunity TO pass upon sucn fecoia,
sthough the existing order is continued. It's
terms win not be enlarged so IS TO unoerIahe
10 restrain the actions of individual consumers,
Who not parties this suit and have not
been served with process
WILL HELP EXPEDITE CASE.
Judge Lacombe says further that he fully ap-
preciates the Importance of a prompt disposi-
non Of the case. He says there is no apparent
reason why final hearing on the merits should