City of New York v. Citizens Water Supply Co. , 191 N.Y.S. 430 ( 1921 )

Blackmar, P. J.:

I think the judgment and orders should be affirmed, for the following reasons:

First. The question in this case does not involve a contract to supply the city with water, such as is authorized by section 81 of the Transportation Corporations Law. It concerns only the rate made to private users. In this the city has no legal interest. (Morrell v. Brooklyn Borough Gas Co., No. 2, 231 N. Y. 405.) The city is not the guardian of the interests of the citizens in disputes, whether with other citizens or public service corporations. This is certainly so in the absence of any law conferring such paternal powers upon it, and there is no such law applying in this case. The issue of the reasonableness of rates to private consumers should be raised by such consumers. (McEntee v. Kingston Water Co., 165 N. Y. 27.)

Second. Even if the city has a standing to maintain the action, the complaint states no cause of action. There is no allegation that the proposed rates are unjust or unreasonable. There is an allegation that they are illegal, but only because the rates were raised without the consent of the commissioner of water, supply. But the statute (Greater N. Y. Charter, § 472) does not make such consent necessary. No power to veto a reasonable increase is contained in that section; there is no allegation in the complaint that the increase is not reasonable, and there is no allegation of a controversy between the commissioner and the defendant as to the reasonableness of the proposed increase.

Third. I do not want to obscure the point that the city is not interested and that the complaint does not state a cause of action, but I think these additional propositions could easily be established:

(a) That section 472 of the charter does not confer upon the commissioner the power to fix rates. It is not consistent with the principles of a constitutional government to confer upon a commissioner the power to fix charges and rates of public service corporations, without accompanying such grant of power with the necessary incidental power of investigation, in order that rates may be fixed upon evidence and reason and not by an arbitrary exercise of irresponsible power. No such power of investigation is conferred on the commissioner of water supply. (Interstate Commerce Commission v. Railway Co., 167 U. S. 479.)

(b) That such legislative power is not conferred on the courts. The meagre provisions of section 472 of the charter should not be stretched to confer on the courts the legislative power over rate-making, which, as to other kinds of public service, has been delegated to commissions appointed for that purpose. The Constitution of the State, article 3, section 1, provides that “ The legislative power of this State shall be vested in the Senate and Assembly.” The complexity of government, due to the great increase of population and changes in the industrial and economic conditions, has justified a delegation of certain legislative powers to commissions, but it has not yet been held to be consistent with the constitutional distribution of govermnental powers between the Legislature, the courts and the executive, for the Legislature to compel the courts to exercise legislative functions.

Fourth. The modem development of the law, which creates commissions to represent both the public and public service corporations in arbitrating between them as to what constitutes just and reasonable rates and to exercise accordingly the legislative power of establishing rates for the future, has not been extended to private water companies. As to such public service the law is as it was as to interstate railroads before the rate-making power was conferred on the Interstate Commerce Commission, and as to intrastate railroads, and gas, electric light and telephone companies before the enactment of the present Public Service Commission Law. This may be a defect in legislation, but this court cannot remedy it nor usurp the functions of a Public Service Commission.

The judgment and orders should be affirmed, with costs.

Rich, J., concurs; Mills, J., concurs upon the second ground stated in the opinion; Putnam, J., reads for reversal, with whom Kelly, J., concurs.