Opinion
December 30, 1916.
Samuel J. Rosensohn [ Lamar Hardy, Corporation Counsel, Felix Frankfurter and Walter E. Meyer with him on the brief], for the appellant.
Samuel F. Moran, for the respondent.
Statutes should be construed, if possible, so as not to repeal other legislative acts by implication, and should be given a reasonable intendment. Hence we should not impute to the Legislature, in passing the act of 1905 fixing seventy-five cents per 1,000 cubic feet as the price to the city of New York as a consumer of illuminating gas, a purpose to take away plaintiff's right to compensation under prior contracts performed in lighting the streets of the thirtieth ward. By this contract plaintiff does not furnish or sell gas, except as incidental to maintaining street lamps with the illumination therefrom. The gas consumed is but one item (and that not a separable one) of the service contracted for.
The number of lamps to be lighted was originally 500, but by clause 14 the town board of improvement reserved the right to increase the number, and to require the gas mains to be extended from time to time (possibly into newly-opened streets where the revenue would not meet the expense) for the compensation computed according to the number of lamps actually lighted. Such a right may be beyond even the authority of present Public Service Commissions to compel from such a lighting company. ( People ex rel. New York Queens Gas Co. v. McCall, 171 App. Div. 580; 219 N.Y. 84.)
As a result of an inquiry into the cost of gas production the Legislature by separate act fixed the price of gas in New York city to the public, with the express proviso that the regulation should not apply to gas furnished or sold to the city of New York (Laws of 1906, chap. 125). The act here invoked (Laws of 1905, chap. 736) fixed the price for gas furnished to the city, regarded as a consumer. This legislation is not for the city, in its governmental capacity, but for it, merely as a large consumer, entitled to special terms. This act touched the rights of no other consumers. In no sense was it an exercise of the police power, as it was not for the general public, but for the defendant's relief, standing apart from general local consumers.
The defenses raised do not show whether the charge for plaintiff's service, if possible to be analyzed into component parts, would involve more than seventy-five cents per 1,000 feet for the gas consumed.
A received canon of statutory construction accords much weight to the practical construction given to a statute by the officials whose duty it was to enforce it. ( City of New York v. New York City R. Co., 193 N.Y. 543; Grimmer v. Tenement House Department of City of New York, 205 id. 549.) Not only has the city of New York continued making its stipulated quarterly payments throughout the ten years since this act which it now invokes took effect, but, by its contract of 1907, it again confirmed its obligations, on the strength of which it obtained from plaintiff important concessions. The statute being highly penal, and the penalties being for the city's benefit, make more significant the defendant's omission to assert that, in 1905, the obligations of its contract had been dissolved. Such a contention, even if made before the confirmatory contract of 1907, would have been open to the charge of violating section 10 of article 1 of the Federal Constitution. ( Vicksburg v. Vicksburg Waterworks Co., 206 U.S. 496; Hudson Water Co. v. McCarter, 209 id. 349, 357; Russell v. Sebastian, 233 id. 195.)
Where a statute is susceptible of two possible constructions, one of which will give rise to doubt as to its constitutionality, and the other avoids such a question, the latter construction will be adopted. ( United States v. Delaware Hudson Co., 213 U.S. 366, 408; United States v. Bennett, 232 id. 303.)
Defendant, therefore, should not now invoke the act of 1905 to relieve it from its obligations under the contracts in suit. I advise that the order sustaining plaintiff's demurrer should be affirmed, with ten dollars costs and disbursements.
THOMAS, CARR and STAPLETON, JJ., concurred; JENKS, P.J., not voting.
Order sustaining plaintiff's demurrer affirmed, with ten dollars costs and disbursements.