The New York Gas and Electricity Commission Act provided that if it shall be established in any action to collect a charge for gas that a price had been demanded in excess of that fixed by the commission or by statute such excessive charge should be a complete defense to the action.Held, that this penalty was so drastic as to entitle a gas company to an injunction restraining the attempted enforcement of a rate fixed by statute, until such rate had been judicially declared constitutional; all charges collected, however, in excess of those fixed by the statute to be impounded to await the outcome of the suit as to the lawfulness of the rate prescribed by the legislature.- Consolidated Gas Co. v. Mayer, 146 Fed. 150.

§ 76. Jurisdiction.-Whenever any corporation supplies gas or electricity to consumers in both districts, any application or report to a commission required by this act shall be made to the commission of the district within which it is mainly supplying, or proposing to supply, such service to consumers. But nothing herein contained shall be construed to deprive the commission of either district of the power of supervision and regulation within its district. And either commission shall have power to enter and inspect the plant of such corporation, wherever situated.

General rules of statutory construction,- see ante, § 1, notes [23][40].

Territorial jurisdiction of the commissions, generally,- see ante, § 5.

877. Powers of local officers.-If in any city of the first or second class there now exists or shall hereafter be created a board, body or officer having jurisdiction of matters pertaining to gas or electric service, such board, body or officer shall have and may exercise such power, jurisdiction and authority in enforcing the laws of the state and the orders, rules and regulations of the commission as may be prescribed by statute or by the commission.

General rules of statutory construction,- se see ante, § 1, notes [23]-[40].

ARTICLE V.

Commissions and Offices Abolished; Saving Clause; Repeal.

SECTION 80. Board of railroad commissioners abolished; effect thereof. 81. Commission of gas and electricity abolished; effect thereof.

82. Inspector of gas meters abolished; effect thereof.

83. Board of rapid transit railroad commissioners abolished; effect thereof.

84. Transfer of records.

85. Pending actions and proceedings.

86. Construction.

87. Repeal.

88. Appropriation.

£9. Time of taking effect.

§ 80. Board of railroad commissioners abolished; effect thereof.-On and after the taking effect of this act the board of railroad commissioners shall be abolished. All the powers and duties of such board conferred and imposed by any statute of this state shall thereupon be exercised and performed by the public service commissions.

For powers and duties of former Board of Railroad Commissioners,see N. Y. R. R. L.

Effect of abolition of Board on pending actions and proceedings,— see post, § 85.

General rules of statutory construction,— see ante, § 1, notes [23]-[40]. Decisions of former Board of Railroad Commissioners merely advisory, see ante, § 23, note [1].

Determinations of former Board of Railroad Commissioners not enforceable,- see ante, § 57, note [1].

The proceedings of the N. Y. Board of Railroad Commissioners, under N. Y. R. R. L., § 34, in granting the application of a railroad to discontinue a station, are subject to review by certiorari.- People ex rel. Loughran v. Board of R. R. Comrs., 158 N. Y. 421, 53 N. E. 163, affg. s. c. 32 App. Div. (N. Y.) 158, 52 N. Y. Supp. 901.

The state may make the Railroad Commissioner's certificate conclusive evidence of the non-existence of any sufficient ground of forfeiture of the charter of a railroad corporation.- People v. Ulster & D. R. Co., 128 N. Y. 240, 28 N. E. 635.

The General Railroad Act does not authorize a corporation formed under it to build an elevated railroad in city streets without complying with the provisions of the city charter with reference to the building of such structures.- Schaper v. Brooklyn & L. I. R. Co., 124 N. Y. 630, 26 N. E. 311.

A railroad seeking to acquire lands by condemnation must show, first, a legislative warrant, and second, if the right is challenged, that the particular scheme on which it is engaged is a railroad enterprise within the true meaning of that term, so that the acquiring of lands for it would be a taking thereof for a public use.- Matter of Niagara Falls & W. R. Co., 108 N. Y. 375, 15 N. E. 429, affg. 46 Hun (N. Y.), 94.

81. Commission of gas and electricity abolished; effect thereof.- On and after the taking effect of this act the commission of gas and electricity shall be abolished. All the powers and duties of such commission conferred and imposed by any statute of this state shall be exercised and performed by the public service commissions.

For powers and duties of former Gas and Electricity Commission,see N. Y. Gas & El. Com. Act (Laws 1905, Ch. 737).

Effect of abolition of Commission of Gas and Electricity on pending actions and proceedings,- see post, § 85.

General rules of statutory construction,- see ante, § 1, notes [23][40].

882. Inspector of gas meters abolished; effect thereof *[on meters already inspected].-On and after the taking effect of this act the offices of inspector and deputy inspectors of gas meters shall be abolished. All the powers and duties of such inspector conferred and imposed by any statute of this state shall be exercised and performed by the public service commissions. But any meter inspected, proved and sealed, by the said inspector of gas meters, prior to the taking effect of this act, shall be deemed to have been inspected by the commission.

* Words in brackets are not a part of section heading as enacted.-ED.

For acts creating offices abolished by this section,- see N. Y. Transp. Corp. L., §§ 62-64.

Inspection of gas meters under the direction of the Commissions,— see ante, § 67.

General rules of statutory construction,- see ante, § 1, notes [23][40].

§ 83. Board of rapid transit railroad commissioners abolished; effect thereof.- On and after the tak ing effect of this act the board of rapid transit railroad commissioners shall be abolished. All the powers and duties of such board conferred and imposed by any statute of this state shall thereupon be exercised and performed by the public service commission of the first district.

Powers and duties of former Board of Rapid Transit Railroad Commissioners transferred to the Public Service Commission of the First District by §§ 5 and 83 of the Public Service Commissions Law.see N. Y. Rap. Tr. Act, §§ 4, 7, 14, 28, 32, 32a, 34, 34a-e, 65; L. 1894, ch. 752, §§ 12, 13; L. 1906, ch. 108, §§ 1-9, ch. 472, §§ 12, 14, post, Appendix A.

Powers and duties of Board of Rapid Transit Railroad Commissioners transferred to the Public Service Commission of the First District, see also ante, § 5.

Effect of abolition of Board on pending actions and proceedings,—see post, § 85.

General rules of statutory construction,- see ante, § 1, notes [23][40].

Power of state to resume or transfer local functions,― see ante, § 5, note [5].

[1] Validity of Rapid Transit Acts.

The Rapid Transit Act of 1894 is constitutional.- Sun Publishing Assn. v. Mayor, 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788, affg. s. c. 8 App. Div. (N. Y.) 230, 40 N. Y. Supp. 607.

The N. Y. Rapid Transit Act of 1875 is not open to the constitutional objection that it delegates legislative powers to the Board of Rapid Transit Commissioners.- Matter of Gilbert El. R. Co., 70 N. Y. 361, 3 Abb. N. C. (N. Y.) 434, affg. 9 Hun (N. Y.), 303.

The N. Y. Rapid Transit Act of 1875 is not unconstitutional as a private or local bill "granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever."- Matter of Gilbert El. R. Co., 70 N. Y. 361, 3 Abb. N. C. (N. Y.) 434, affg. 9 Hun (N. Y.), 303.

The Rapid Transit Act of 1875 is constitutional.- Matter of N. Y. El. R. Co., 70 N. Y. 327; distinguished, 104 N. Y. 41, 111 N. Y. 106, limited, 7 N. Y. Crim. 350, 7 N. Y. Supp. 149.

[2] Powers of former Board of Rapid Transit Railroad Commissioners.

The intent of the legislature in enacting the N. Y. Rapid Transit Act was to confer upon the Board of Rapid Transit Railroad Commissioners all the powers necessary to properly construct the railroads therein provided for, without the concurrent action of the ordinary municipal authorities, except where such action was specifically required by the Act. - Rapid Transit Subway Const. Co. v. Coler, 121 App. Div. (N. Y.) 250. The N. Y. Board of Rapid Transit Railroad Commissioners had power to authorize a sub-contractor engaged in constructing a subway, to occupy such portion of streets crossed by the proposed work as was necessary in the prosecution of the undertaking.- Rapid Transit Subway Const. Co. v. Coler, 121 App. Div. (N. Y.) 250.

Although the N. Y. Rap. Tr. Act, § 63, provides that the subway shall be deemed to be a part of the public streets and highways of the city of New York, the control thereof is vested in the Board of Rapid Transit Commissioners.- Interborough R. T. Co. v. City of N. Y., 47 Misc. (N. Y.) 221, 95 N. Y. Supp. 886.

[3] Reports.

Where a court has imposed conditions upon which a report of the Board of Rapid Transit Commissioners of New York City will be confirmed, and the conditions have not been complied with, the result will be the denial of an application to confirm the report.- Matter of Board of Rapid Transit Comrs., 119 App. Div. (N. Y.) 196, 104 N. Y. Supp. 671.

On an application to approve the report of the N. Y. Board of Rapid Transit Railroad Commissioners authorizing a change of the route of the subway under Park avenue, in New York city, the city should be made a formal party, the city to have leave to move to open the proceeding and come in.- Matter of Board of Rapid Transit Comrs., 119 App. Div. (N. Y.) 196, 104 N. Y. Supp. 671.

Where the cost of a proposed railway is uncertain and is not even estimated approximately, and the probabilities are that it may exceed the