
    The City of Buffalo, Plaintiff, v. The Buffalo Gas Company, Defendant.
    (Supreme Court, Erie Special Term,
    October, 1908.)
    Injunction — Who and what may be enjoined — Acts of private associations and corporations or officers thereof — Actions by customers against gas company.
    Where a municipality, to which illuminating gas is being furnished for street and public building lighting purposes by a gas company, refrains from instituting proceedings for the establishment of a rate for gas consumed; and where a former determination by the Commission of Gas and Electricity fixing a rate of ninety-five cents per thousand feet has been disregarded by both parties, owing to an adjudication that the statute under which it was made was in many particulars unconstitutional; and where the evidence taken at the time of the determination by the commission shows that the company would be justified in charging a rate of at least seventy-five cents per thousand feet; and where the municipality, although continuing to take its supply of gas from the company, refuses to pay therefor, even at the rate of seventy-five cents per thousand feet, the court will not, at the suit of the municipality, restrain the company from turning off the gas until payment therefor is made.
    Motion to vacate injunction.
    L. L. Babcock, for motion.
    L. E. Desbecker, opposed.
   Brown, J.

From July 1, 1907, defendant has furnished artificial illuminating gas to plaintiff for street and public building lighting purposes, rendering bills therefor at the rate of ninety-five cents per thousand feet. The plaintiff has declined to pay such bills, contending that such gas is only worth seventy-five cents per thousand, and assumes the right to liquidate and pay defendant’s claim at such rate. Bills amounting to $131,658.12 having accumulated, the defendant notified plaintiff that, unless such account was paid, the gas for street and public building lighting would be turned off September 10, 1908. To restrain defendant from turning off such gas, plaintiff brought this action and procured a temporary order enjoining defendant from such act. Defendant moves to vacate such injunction. Upon the argument the testimony taken by the Commission of Gas and Electricity in the spring of 1907, touching the rate per thousand defendant could legally charge for gas furnished plaintiff, was read. From such testimony it clearly appears that the defendant would be justified in charging a rate of at least seventy-five cents per thousand; in fact, the Commission of Gas and Electricity made an order that, on and after September 1, 1907, the maximum price for gas which could be charged to consumers by defendant should be fixed at ninety-five cents per thousand. Owing to the fact that the Court of Appeals decided the statute under which the Commission of Gas and Electricity assumed to act was in many particulars unconstitutional, neither party to this action has recognized such order fixing the rate at ninety-five cents per thousand as of any force, the plaintiff contending that in any event such order simply referred to gas furnished private consumers, while defendant contends that it was an adjudication fixing the rate defendant must pay for gas in lighting streets and public buildings. It is very apparent that the differences between the parties cannot be settled until it is determined by an authoritative adjudication what would be a reasonable rate for defendant to charge plaintiff for its gas. For the gas already furnished, this court has ample power to determine its value and adjudicate upon plaintiff’s present indebtedness; but the power to determine what rate may be legally charged for future gas has been lodged'by the Legislature with the Public Service Commission, and that power can only be invoked by the plaintiff. The defendant is denied the right to institute any proceedings looking to the establishment of a rate for the future; and the plaintiff refrains from so doing, contenting itself with using defendant’s gas, declining to pay for it and invoking the equitable power of the court restraining defendant from turning off the gas. Counsel for plaintiff does state, however, that plaintiff will pay sixty-five or seventy cents per thousand for gas already used and pay any balance that may be found due defendant upon the trial of this action, or that plaintiff will pay seventy-five cents per thousand in full for all gas used up to time of commencement of the action. It would he unjust to permit the use of the power of the court to prohibit the defendant from shutting off the gas supply to plaintiff’s streets and buildings as long as the officers of the plaintiff arbitrarily refuse to pay a reasonable rate therefor. It does not seem unjust to compel the plaintiff to pay for what gas it has already consumed at a rate that is conceded by plaintiff to be reasonable. The establishment of a fixed rate for future gas is entirely in plaintiff’s hands; the defendant is powerless to institute such a proceeding; the plaintiff asks the court to protect it against the only step that the defendant can take so as not to be compelled to longer furnish gas that plaintiff will not pay for. With the refusal of the plaintiff to pay the rate of ninety-five cents per thousand fixed by the Commission of Gas and Electricity, or to pay the rate of seventy-five cents conceded by the plaintiff to be just and await the determination of what is a legal rate, the plaintiff takes a position so manifestly unfair that its injunction order prohibiting defendant from shutting off its gas cannot longer he continued.

The motion will be denied, without costs, upon condition that plaintiff pay to defendant, within ten days from date of entry and service of order to be entered hereon, a sum equivalent to seventy-five cents per thousand cubic feet for gas used by plaintiff since July 1, 1907, which payment shall be without prejudice to either party hereto to establish any other sum as the reasonable value of such gas. In the event the plaintiff shall fail to make such payment, an order may be entered at the expiration of said ten days vacating the temporary injunction granted herein on the 10th day of September, 1908, with ten dollar’s costs.

Ordered accordingly.  