The lines, which the companies seek to bring within the authority of that case are like the Flatbush avenue line, in that they were partly within and partly without the limits of the old city of Brooklyn. In other respects, the facts are certainly not on all fours with those in the Flatbush avenue case. There, each of the franchises stipulated for a 5-cent fare, and there was evidence that at the time of consolidation two fares were actually collected. Here, in most cases, at least, only one of the franchises stipulated for a 5-cent fare, and there is no evidence that two fares were actually collected at the time of consolidation. Moreover, it appears that, on several of the lines involved in this proceeding, the franchises in the city of Brooklyn and in the towns had been granted to different companies which had been merged after the lines came within the city of Brooklyn by the annexation of the adjoining This fact, in view of what was said by Chief Judge Cullen in the Braffett case, supra, would seem to indicate that the companies have in such instances, brought themselves within the single fare provisions of old § 104 of the Railroad Law (now subdivision 7, § 49, of the Public Service Commissions Law). Other circumstances, which it is alleged distinguish these lines from the Flatbush avenue line, were urged, but the view which I take of the situation makes it unnecessary for me to discuss them at this

towns.

time.

With the possible exception of the Smith street and Franklin avenue lines, strong arguments may be made that the Flatbush avenue decision does not apply and that the companies are not intitled to charge more than a single fare. I am convinced that § 181 of the Railroad Law means something. That its obvious purpose will be whittled away to nothing, because the companies lappen to be in temporary financial difficulties, I am loath to believe. My doubts are so strong and are based on such substantial grounds, that in ordinary circumstances I should feel it my duty to direct every effort of the Commission to seeing that the companies did not charge more than a single fare.

A serious practical situation is, however, presented. These lines are in the hands of a Federal receiver, and they are unprofitThe receiver has already asked the instructions of the court

able.

with a view to the possible discontinuance of these lines. He has stated that, if the relief sought is not secured, he will recommend to the court that operation be discontinued. That court has or

dered the discontinuance of other lines, under similar circumstances, and has enjoined the Commission from taking steps to secure a resumption of service. The expressed policy of the court indicates that a discontinuance will be ordered in respect to these lines. Everything points to a discontinuance of service on these lines, unless the receiver is enabled to charge two fares as he proposes to do.

The stoppage of service would inflict the most serious hardships; large and widely separated communities would be deprived of adequate means of transportation; and thousands of people would be compelled to walk. It is probably true that a discontinuance by the receiver is unlawful, and that an injunction restraining the Commission from going into the state courts to determine what the law does permit would probably be reversed on appeal. But these appeals will take time, and in the meantime the people will walk. That is the practical situation; and these are the results which the Commission should strive to prevent.

If the proposed schedules go into effect, these results will be avoided. The legal rights of the public will not be affected on the expiration of the suspension order. The privilege of having the courts determine whether a second fare is legal will not be foreclosed. The public will be free to test the right of the company by a penalty action under § 59 of the Railroad Law. Service will be maintained while the legal question is being tested or held in abeyance; but, if the legal question be tested by continuing the suspension of the schedules, the service will stop.

[1] The Commission owes a duty to the public to see that service is maintained and that its legal rights are not prejudiced; and the former is more pressing. In the situation with which I am confronted, I see no way to discharge both duties, except by refraining from further suspending the tariff schedules. In this way, the receiver will be free to put the additional fares into effect, if he is so advised, but the public will continue to have service, and will be free to raise the question as to its rights under the statute.

[2] For the foregoing reasons, the suspension order will be allowed to expire.

It is to be hoped that, in case the companies charge two fares, that reasonable notice be given to the public before the change

takes effect.

Note.-Commissions.

1. Power of railroads, 187.

II. Power over drainage, 187.

III. Power to supplant directors' discretion, 187.
IV. Power to determine ownership, 187.

V. Power to pass on court proceedings, 188.
VI. Power to investigate on own
own motion, 188.

I. Power over railroads.

In Cape Girardeau Press Brick Co. v. Cape Girardeau N. R. Co. Case No. 2625, Sept. 16, 1920, the Missouri Commission holds that it is without authority to require one of two connecting carriers to operate over the terminals of the other, although service thereover be temporarily suspended by the owner-carrier on account of operation at a loss.

In Kirksville v. Hines (1920) Mo., 225 S. W. 950, it is held that a municipality has the right of eminent domain without the approval or consent of the Public Service Commission, that the power of the Commission extends only to deciding the point where a highway shall cross a railroad, and that the statute requiring a railroad to construct and maintain a crossing at its own expense is not inconsistent with the Public Service Commission Act giving the Commission exclusive power to determine the location of a crossing.

II. Power over drainage.

In Westbrook v. Muscatine N. & S. R. Co. Dockets A-2371, A2104, Dec. 3, 1920, the Iowa Commission does not assume jurisdiction of drainage questions.

III. Power to supplant directors' discretion.

In Re Ithaca Traction Co. Case No. 7946, March 1, 1921, the New York Commission, Second District, held that it was within the discretion of the Commission to decide whether a 10-cent fare would be likely to produce less revenue than an 8-cent fare on a street railway, stating that the Commission may exercise its judgment in such a matter, as it was a matter in which the public was concerned as well as the corporation and was not within the exclusive province of the board of directors.

IV. Power to determine ownership.

In Re Mt. Vernon Water Works Co. Case No. 5031, Aug. 27, 1920, the Indiana Commission said: "The Commission, however, has pressed upon it, both by petitioner and respondent, the question whether or not petitioner owns all of the utility herein involved. The Commission, as an administrative agency of the state, necessarily is possessed of certain very limited judicial powers which, however, do not extend to questions of ownership, the determination of which is

P.U.R.1921C.

vested in courts. The law herein invoked is one of rate making. It does not concern itself with ownership. The utility may or may not be locally owned; it may be owned by an individual, a partnership or a corporation; or the ownership may be diverse. Determination of the rate question leaves open any question of ownership. That is to say, if other persons than the utility have any ownership in part of the property they may establish it through tribunals which the state has created for such adjudications."

V. Power to pass on court proceedings.

In Re Southern Indiana Power Co. No. 5116, Oct. 29, 1920, the Indiana Commission said: "Respondents herein press the Commission to pass on the judicious and prudent course or investment in these matters, and even upon the ethics of the legal profession. The Commission, an administrative body, is not created to pass on the question of the correctness of the verdicts of juries, decisions of courts and acts of lawyers. It will accept court judgments as valid riparian settlements and, in the light of the evidence, will accept the Boruff and Boruff contract as coming within the realm of a ‘judicious and prudent investment.'

VI. Power to investigate on own motion.

In People v. Monarch (1920) 193 App. Div. 707, 185 N. Y. Supp. 5, the validity of a conviction for assault arising out of the ejection of a passenger from a street car, turned upon the question of the validity of a Commission order requiring the company to charge only a 5-cent fare in a case in which the company claimed the right under franchises, to charge a 10-cent fare. The Commission made its order under § 48 of the New York Public Service Commissions Law (Consolidated Laws, chap. 40), Subdivision 1, which reads as follows: "Each Commission may, of its motion, investigate or make inquiry, in a manner to be determined by it, as to any act or thing done or omitted to be done by any common carrier, railroad corporation, or street railroad corporation, subject to its supervision, and the Commission must make such inquiry in regard to any act or thing done or omitted to be done by any such common carrier, railroad corporation, or street railroad corporation in violation of any provision of law or in violation of any order of the Commission." The court said: "Under § 48 there is no authority for an order when the investigation is not for the purpose of redressing a grievance complained of, but is made on the motion of the Commission in the interest of the public at large. The investigation on the motion of the Commission is like a legislative investigation for the purpose of ascertaining facts. If it be developed in the investigation that the carrier has done or omitted any act in violation of law or in violation of any order of the Commission, the remedy is for the Commission to seek redress in the courts by summary proceedings under § 57, in which proceeding such violation or threatened violation may be stopped or prevented either

by mandamus or injunction. Within a certain field the Commission may act upon its own motion, and make an order defining the duties. of the carrier to the public at large. This power is conferred by § 49, entitled 'Rates and Service to Be Fixed by the Commission.' This section is not applicable to the determination of a question of law such as is presented in this case, but to the question of the reasonableness of fares and service. The law requires that rates and service be reasonable. The Public Service Commissions Law commits to the Commission the exclusive power to determine, after investigation, the measure of this obligation, and it may proceed either on its own motion or on complaint by others. This involves, among other things, when it is a question of fares, an inquiry as to the 'reasonable average return upon the value of the property actually used in the public service and to the necessity of making reservation out of income for surplus and contingencies.' No such investigation was made by the Commission in this case. The proceeding and order in this case were not in the exercise of power granted by § 49, but the Commission assumed upon its own motion to decide a question of law as to the franchise rights and duties of the street railroad company and to make an order in accordance with its decision. This it had no power to do, and the order was consequently without jurisdiction. Even in proceedings under § 49, the Public Service Commission is without jurisdiction 'to abrogate conditions in respect of fares, contained in franchise agreements between municipalities and railroads, when the agreements were already in existence at the adoption of the statute' (Niagara Falls v. Public Service Commission, 229 N. Y. 333, P.U.R.1921A, 39, 128 N. E. 247; Quinby v. Public Service Commission, 223 N. Y. 244, P.U.R.1918D, 30, 119 N. E. 433, 3 A.L.R. 685), and the franchises of the Brooklyn City R. Co. antedated the adoption of the Public Service Commissions Law."

A gas utility has an undoubted right to cut off patrons who misuse or abuse their service, but a charge of tampering with a meter is too serious to be sustained except upon clear and satisfactory proof. [March 29, 1921.]

COMPLAINT against discontinuance of electric service because of nonpayment of a disputed bill; sustained.

P.U.R.1921C.