OTTINGER, Attorney General of New York, v. BROOKLYN UNION GAS CO. SAME v. KINGS COUNTY LIGHTING CO.

Separate suits were begun by appellees in the United States District Court, Eastern District of New York, against the Public Service Commission and the Attorney General of that state. They sought injunctions against enforcement of the Act of June 2, 1923, c. 899, laws of New York 1923, by which the Legislature directed that gas of 650 British thermal units should be sold at not more than $1 per 1,000 feet. Prior to June 2, 1923, under orders of the commission, the Brooklyn Union Gas Company had been charging $1.15 and the Kings County Lighting Company $1.30 per 1,000 feet for gas of 537 British thermal units.

The causes were referred to different masters. They took much evidence, and each reported that the rate prescribed by the Legislature would yield less than 5 per centum upon the fair value of the complainants' property devoted to public use. With some exceptions, not now important, these reports were approved, and the court adjudged the statute confiscatory and therefore invalid; also that it was unreasonable and invalid in respect of the standard of 650 British thermal units. Kings County Lighting Co. v. Prendergast (D. C.) 7 F.(2d) 192; Brooklyn Union Gas Co. v. Prendergast (D. C.) 7 F. (2d) 628.

The commission declined to ask for an appeal to this court. The Attorney General, upon petitions which allege 'that in substance the decree restrains the defendants from enforcing in any way chapter 899 of the Laws of 1923 of the state of New York and declares that said statute violates or is in contravention of section 10 of article 1 and of the Fourteenth Amendment of the Constitution of the United States,' sued out broad appeals and has presented many assignments of error-107 in No. 358, and 21 in No. 365. But we find no reason whatever advanced by him in brief or oral argument which would justify reversal of either decree.

The statute was clearly confiscatory in effect, and there was no necessity for the District Court to consider any other objection thereto. We have not done so.

The decrees will be modified, by excluding therefrom such parts as adjudge the statute invalid for any reason except conflict with the Fourteenth Amendment, because confiscatory in effect. Thus modified, both are affirmed. All costs will be taxed against appellant.

Mr. Justice BRANDEIS concurs in the result.