Opinion
November, 1934.
Motions denied. If upon examination of the entire record the orders of the Public Service Commission appear to affect only departmental procedure and not substantive rights of the utility companies, to be legislative and not quasi-judicial, a dismissal may then be had. Hill, P.J., Bliss and Heffernan, JJ., concur; Rhodes, J., dissents, with a memorandum in which Crapser, J., concurs.
It seems to me that the orders of the Commission in question here, prescribing a uniform system of accounts, constitute in effect only the promulgation of rules, and hence are wholly legislative in character, and not now reviewable by court. (See People ex rel. Stillwell v. Gunner, 124 App. Div. 153.) Assuming the truth of all the facts set forth in the petitions for certiorari, we still have only an anticipated hypothetical future condition. We are not presented with facts as to actual, specific transactions of any utility company; thus the matters here are differentiated from the cases of People ex rel. Iroquois Gas Corp. v. Public Service Commission ( 264 N.Y. 17) and New York State Electric Gas Corporation v. Maltbie ( 214 App. Div. 780). In those cases the Commission after hearings as to actual specific transactions of the utility then concerned, made orders, upon existing facts relative to such transactions, and such orders were reviewable in proper proceedings brought in court. A vacation now by this court of the certiorari orders under attack will not deprive the petitioners of the right to a judicial review hereafter in a proper proceeding. If and when the Commission's said orders are sought to be enforced as to actual items and transactions of any utility, by orders made after hearing as to such existing facts, actualities and transactions, undoubtedly such determinations may be reviewed in court. No one would think of attacking judicially a statute of the Legislature, until its enforcement be attempted, and similarly, no one may be permitted to review these rules of the Commission, until they are sought to be enforced. Whether or not it may be said that the Commission held hearings relative to the rules before they were promulgated, is not material. The quality of its action could not thus be changed from legislative to judicial or quasi-judicial. I, therefore, dissent and vote to grant the applications and vacate the certiorari orders, upon the ground that the acts of the Commission in promulgating the rules in question are not now reviewable here. Crapser, J., concurs.