
    Brooklyn Union Gas Company, Respondent, v. The City of New York, Appellant.
    Second Department,
    October 5, 1906.
    Corporation — gas company furnishing gas below statutory, rate — when court will not inquire into reasonableness of rate — inspection of books denied.
    When the Legislature has fixed the maximum rate which public service corporations may charge, the courts have no power to inquire whether a charge not in excess of the statutory rate is reasonable, or whether the statutory rate Is ’excessive.
    Hence, when a gas company has furnished a city with gas at less than the maximum statutory rate, and sues to recover the contract price, the court will not grant an inspection of the plaintiff's books and plant in aid of allegations by the defendant that the rate charged by the plaintiff was excessive.
    Appeal by the defendant, The City of Mew York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11 th day of May, 1906, denying the defendant’s motion for an inspection of the books of the plaintiff and of its manufacturing plant.
    The action is to recover for illuminating gas furnished to the defendant for its public buildings and streets. The price charged is less than the maximum price of one dollar and twenty-five, cents a thousand cubic feet fixed by section JO of the Transportation Corporations Law (Laws of 1890, chap. 566) as the price which gas companies may charge cities of the class of the defendant.
    The defendant’s answer raises the issue that the price charged by the plaintiff is excessive, and its claim is that the trial court must ascertain the reasonable price, and give judgment for that only.
    The inspection was asked for in order to ascertain the cost of production of gas to the plaintiff, as bearing on the question of reasonable price to the' consumer.
    
      William P. Burr [William J. Clarke, A. W. Booraem and John J. Delany with him on the brief], for the appellant.
    
      William N. Dykman [ William J. Carr with him on the brief],for the respondent.
   Gaynor, J.:

The rule is that public service corporations may charge only a reasonable rate, and the courts may ascertain such rate in a given case. But this-rule has no application where the legislature .has fixed the rate. The people through their representatives assembled in legislature have the undoubted power to fix the rate which public service corporations shall charge the public. That is a legislative matter.' If the legislature fix the fare too high the people may elect legislative representatives who will lower it. The courts have no power to lower it. It is not for the courts to upset what the people do by their legislative representatives, except in the case of a legislative act which is contrary to some provision of the Constitution, of which there can be no pretense here. The claim that the rate fixed by the legislature is excessive is a tiling to be addressed to the next legislature, not to the courts. The people speak through the legislature, every one being represented therein, and thereby voluntarily bind themselves and all. the subdivisions of their government. The case is not one calling for an extended discussion. It rests upon the fundamental principle of representative, government.

The cost of the production of gas to the plaintiff is therefore an immaterial fact in this case. The plaintiff had the right to charge not to exceed the maximum price fixed by the statute.

The order should be affirmed.

Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  