New-York tribune., 1922-03-07
30 Gent Gas
Law Void, High
Court Decides
Continued from mage ene)

Inc court made it plain there was no
use IN proceeding further with these
cascs.
Justice McReynolds delivered the
opinions of the court Justice Clark
concurred. The court took occasion to
strike hard at the action of the counsel
for the state in filing "a record of
'wenty-one Volumes" including "many
thousand pages Of matter without pres
ent value" The court declared this
'1ndefensible practice" and threatened
IN the future to dismiss appeals that
aid not observe the rules Of the court.
Court Criticizes p. s. c.
1t was insisted by counsel for the
Attorney General that they were de-
med fair and impartial trial by the
court, Judge Hand presiding, and by
the master named by the court
Justice McReynolds holds this "frivo-
ious' AS to the court. He holds ''the
master talked too much and often un-
wisely" but that no substantial right
was denied. The record shows that
Abraham S. Gilbert was appointed
special master by Judge Hand in May,
1919. In his report. dated May 5, 1920,
the master found that the fair value of
the Consolidated property was $74,854,-
35l1d, while on the company's ex
pericnce it would receive on this in
1890 only about ] 3 per cent
Yhe court criticized the Public Scrv
icox Commission for not increasing the
rate when it found that the prescribed
rate had not yielded fair return for
more than year, and that this condi-
tion would almost certainly continue
| H.. ft>
such circumstances was "clearly en-
titled to relief" according to Justice
McReynolds.
Fundamental Question Involved
Justice McReynolds, in the opinion,
reviews the history Of the Consolidated
Company, the S0-cent gas law OF the
State of New York of 1906, the failure
Of early efforts to cnjoin its enforce
ment, and the present proceeding begun
January 16, 1919, to enjoin enforce
ment Of the rate on the allegation it.
was conhscatory. After a mater had
examined into the question in great de
| tail, the District Court, Judge Learned
Hand, held the S0-cent rate had been
conf tory since January |, 1918, and
would continue to be so. An amended
decree, entered August II, 1920, en-
| JOlneu c0IOICeTncllO OIL Itlc HCL anu ~
hibited the gas company from charg-
ing more than S1.20 per thousand for
gas. The gas company also was ordered
to impound collections above so cents
per thousand for ultimate distribution
in accordance with any rate established
by compeent authority. The state and
public auth critics appealed and there
we're two appeals by the gas company
growing out of notifications of the
original decree. Justice McReynodls,
in the course of his opinion, says;
"The fundamental question presented
for determination was whether the 30
cent rate had been confiscatory under
conditions existing during 1918 and
1919. and probably would continue so
to be. Considering the rulings here in
Wilcox VS.. Consolidated Gas Com
pany, and other cases, the answer re-
quired little more than an appreciation
of facts not very difficult to ascertain.
P. S. C. Took No Action
"The masters report and opinion
disclose careful and intelligent con-
sideration of the whole matter. Re
solving all doubts against the PLAINTIFF
and using valuations pared down un-
sparingly,' the trial court agreed with
the masters ultimate findings and
ruled that to enforce the statute would
result in confscation. Since March 80,
1921, the Public Service Commission
has had power to prescribe rates for
appellee unrestricted by the maximum
specified in the act of 1906, but no
such action has been taken. 1t did,
however, authorize rate of $1.40 in
stead of 80 cents for another company
operating in New York City, effective
after August l, 1920, and has thus in
dcated its informed judgment. See
Morrell VS.. Brooklyn Borough Gas
Company, appeal No. / (July IA, 1920,
New York. We are, Of course, aware
of the enormous increase in cost of
labor and materials since this court
declared that appellee might possibly
earn per centum under the 80cent
rate. In view of all these things only
very cogent reasons would Justify
complete reversal of the challenged
decree
Master Talked GOTTEN Unwisely"
"Appellants earnestly insist that
they were denied fair and impartial
trial both by the master and the court.
SO far as it relates to the court We
dismiss the suggestion as frivolous.
Undoubtedly during the many months
devoted to the hearings the master
| talked too mucn and O1Cen unW1Sely;
but, manifestly, appellants counsel
made the situation unnecessarily diff
ficult and failed to support the mas
ter's earnest efforts promptly to ascer-
tain the essential facts. Looking at
all the circumstances, we are unable to
conclude that any substantial right
was denied. The size of the record,
eight months of almost daily hearings,
and the masters reiterated offers to
hear properly prepared and helpful
evidence show abundant opportunity
was given for presentation of appel
lant's cause. The master wisely
sought to exclude ill-advised cross
examinations and other unimporta mt
matter.
Compare Entitled to Relief
"Since 1907 the gas company has
been subject to supervision by COM
mission empowered to prohibit unrea-
sonabe rates, and the presumption is
that any profits from its business were
lawfully acquired (Municipal Gas
Company VS.. Public Service Commits
sion, 225 n. Y. SO, 90). Mere past sue
cesscs could not support demand that
it continue to operate indefinitely at
loss The public has no such right
in respect of private property, although
dedicated to public use. When it be-
came clear that the prescribed rate had
yielded no fair return for more than