Bronx Gas & Electric Co. v. Prendergast , 1 F.2d 377 ( 1924 )

WINSLOW, District Judge.

This action is brought by the plaintiff to have chapter 899 of the Laws of 1923, providing for a charge for gas of $1 and prescribing the calorific standard of gas, declared unconstitutional, as confiscatory and void. The report of the special master, finding that the $1 rate is confiscatory as to this plaintiff by a wide margin, is more than justified by the record. In view of the opinion filed on June 16, 1924, involving the same question of law [N. Y. & Queens Gas Co. v. Prendergast et al. (D. C.) 1 F.(2d) 351, 371], it is unnecessary for the court to give further expression to this point herein.

The court, concurs in the conclusion of the special master as to the confiscatory result of the rate prescribed. No question of ,a service charge is involved in this case. I desire to state, however, that I do not believe that the rulings of the special master against the plaintiff as to certain eliminated items which plaintiff contends should be included in operating expenses should be regarded as a precedent by a rate-revising body. The master, indeed, has ruled that only for the purposes of this particular case were such items eliminated, and that these rulings were without prejudice to the plaintiff’s rights in another forum. The items of expense properly received in evidence in the record are more than sufficient to justify the master’s conclusion.

A decree will be entered, confirming the master’s report, except as modified by the views of this court set forth in the opinion in N. Y. & Queens Gas Co. v. Prendergast et al., as fa,r as applicable, and, as modified by such expression of opinion, the report will be confirmed.

Decree may be settled on notice.