ERROR TO THE SUPREME COURT OF NEW YORK.
Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone.
MR. JUSTICE BUTLER delivered the opinion of the Court.
The gas company challenges the validity of an order of the Public Service Commission on the ground that it
confiscates the company's property, is arbitrary and capricious, and therefore repugnant to the due process clause of the Fourteenth Amendment.
The order was made April 20, 1920, and directed the company to extend its mains to furnish gas to the residents of five communities -- Locust Manor, Locust Lawn, South Jamaica Place, Springfield, and Laurelton, -- in the Borough of Queens, New York City; and that the extensions be completed and put in service by November 1, 1920. On the petition of the company the proceedings were taken on writ of certiorari to the Appellate Division of the Supreme Court of the State, and were there confirmed. 203 App. Div. 369. The order of that court was affirmed by the Court of Appeals. 236 N. Y. 530. The case is here under § 237 of the Judicial Code.
At the argument in this court, October 12, 1925, the commission suggested that no real controversy exists; and, upon leave granted, filed a motion to dismiss. The grounds asserted are that, since the writ of error issued June 5, 1923, the company has laid mains to serve two of the communities and, as a part of its present plan to furnish gas to the other places named in the order, has laid mains in adjacent territory. Affidavits were filed by the commission in support of the motion, and by the company in opposition. Taken together they show that the order has not been complied with; that a part of the extensions ordered has been laid, but that the company has not planned, and does not intend, presently to lay the mains necessary to furnish gas to all the communities directly to be served. The company is unwilling fully to comply with the order and maintains that it is invalid. If the judgment of the state court is not reversed, summary proceedings to compel the company to obey the order may be brought by the commission in the state court. § 74, Public Service Commission Law, c. 48, Consolidated Laws New York. And this court cannot say
that the facts shown would constitute a defense. The case is not moot. The motion to dismiss will be denied. Cf. Brownlow v. Schwartz, 261 U.S. 216, 217; Levinson v. United States, 258 U.S. 198, 202.
The company has long had the privilege of laying gas mains in the streets and other public ways of the town of Jamaica (now the Fourth Ward of the Borough of Queens) to distribute gas for street lighting and other purposes. It does not appear that any other utility is authorized to furnish gas there, and it is to be assumed that these communities are dependent upon this company for service. When reasonably required, the company is in duty bound to furnish gas to inhabitants of the territory covered by its franchise. People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528, 533. And the commission is empowered by statute to require reasonable extensions of the mains and service. § 66 (2), Public Service Commission Law, supra. In the territory already served by the company there are 150 consumers per mile of main. The sections for which service is ordered are residential communities. They have had water and electric service for many years. The houses already there, and those being built, are of a kind to indicate that, if brought within reach, gas will be used by the larger part of the inhabitants. There are good prospects of growth in the immediate future. The facts justify reasonable anticipation of a substantial and increasing demand for gas in the territory to be reached by the extensions.
Compliance with the order requires the addition of about 16 miles of main. The affidavits filed on the motion to dismiss show that, in two of the communities directed to be served, and in the adjacent territory, the company has laid about 30 miles of main since June 5, 1923. The state law fixes one dollar per 1000 cubic feet as the maximum ...