App. Div.] distribute electricity, should not be permitted to do so, because it is manifest that if it may not issue any stock and bonds at all it cannot exercise its corporate rights and franchises. These reasons are all based upon the underlying proposition that there should be no competition in the business of electrical lighting, providing that there is to be found one company already performing that service acceptably. It is said that it is the general policy of the State to prevent such competition and to encourage in such matters beneficient monopoly, the rights of the public and the consumers being protected by the reserved right of the Legislature to regulate charges and methods of operation. That such has been the general policy of the State is undoubted. (Matter of Attorney-General, 124 App. Div. 401, 406; People ex rel. New York Electric Lines Co. v. Ellison, 188 N. Y. 523, 531.) In the case last cited the grounds upon which this general policy rests are clearly pointed out. The right to determine whether such competition should be permitted, and when, rests, however, with the Legislature and has not been delegated to the Public Service Commissions. The relator had acquired legislative authority to transact its business before the Commission was created, and we can find nothing in the act which permits the Commission to say, upon its own mere ipse dixit that a duly chartered and authorized corporation may not transact business merely because it may compete with another corporation engaged in the same business. Upon this question it is interesting and significant to note the difference in the powers granted to the Commission respecting railroad corporations and those respecting gas and electrical corporations. By section 53 of the act railroad corporations, street railroad corporations and common carriers, which had not before the creation of the Public Service Commission obtained a consent from the Board of Railroad Commissioners, or which had not then become entitled to begin construction by virtue of compliance with the Railroad Law, are forbidden to begin the construction of a railroad, or any extension thereof, without first having obtained the permission and approval of the proper Public Service Commission, and such permission is to be given only after the Commission has determined "that such construction or such exercise of the franchise or privilege is necessary or convenient for the public service." Under this provision it seems that the Commis First Department, April, 1910. [Vol. 137. sion could properly withhold its permission if the proposed railroad appeared to be unnecessary because the territory to be served was already sufficiently served by an existing line of railway. (People ex rel. Potter v. Board of Railroad Commissioners, 124 App. Div. 47; People ex rel. D. & H. Co. v. Board of Railroad Commis sioners, 126 id. 492.) The provisions regarding gas and electrical companies are quite different and provide for no certificate of necessity or convenience. Section 68, which requires the approval of the Commission before certain gas and electrical corporations may begin construction or exercise rights and franchises, merely requires that before such certificate of approval is issued a certified copy of the charter of the corporation shall be filed in the office of the Commission, together with proof that it has obtained the required consent of the proper municipal authorities. Section 69, requiring the consent of the Commission to an issue of stock or bonds of a gas or electrical corporation, merely requires that the Commission shall be satisfied that the money to be derived from such issue is reasonably required for the enumerated purposes of the corporation. The specific requirement of a certificate of "necessity and convenience" in the case of a railroad company, and the omission of any such requirement in the case of a gas and electrical corporation, indicates that, as to the latter, it was not the intention of the Legislature to delegate to the Commission the power to prevent the exercise of corporate rights merely because such exercise would involve competition. The last four reasons, therefore, rest upon a mistaken view as to the scope of the Commission's authority and are consequently insufficient. It will be seen that the reasons given by the Commission for withholding its approval to the relator's application divide themselves into two classes. The first class comprises those which go to the question whether any securities at all should be issued. These we find to be inadequate. The second class comprises those which relate to the question as to what amount of securities should be permitted to be issued and to what purposes their proceeds should be applied. These questions the Commission has not undertaken to decide, relying upon the supposed force of their objections to any issue at all. It follows that the writ should be sustained and the determination of the Commissioners annulled, with fifty dollars costs and App. Div.] disbursements, and the relator's application referred back to the Commission for consideration and action within the limits of its authority. CLARKE and DOWLING, JJ., concurred; INGRAHAM, P. J., and MCLAUGHLIN, J., dissented. INGRAHAM, P. J. (dissenting): I dissent. I expressed my opinion as to the right of the relator to exercise this franchise in my dissenting opinion in 117 Appellate Division, 92. I do not understand that the right of the relator to exercise this franchise was passed upon by the Court of Appeals upon the appeal to that court reported in 188 New York, 364, except so far as it held that objections could be taken by the People or the city, and not by the defendant, in that proceeding. The Public Service Commission, the defendants here, are a Commission organized by the State, as what the Court of Appeals calls "the guardians of the public," to prevent the issue of stock for other than statutory purposes. (People ex rel. D. & H. Co. v. Stevens, 197 N. Y. 1.) It is the State that is now being proceeded against to compel its officials, with whom it has vested certain discretionary powers, to consent to the exercise by the relator of such powers, and it seems to me that if the State has a right to question the right of the relator to this franchise, or its right to use the franchise, that the defendants as State officers had such right. Entertaining the views I formerly expressed in 117 Appellate Division, 92, and which have been confirmed by a subsequent examination, I do not think this court should reverse the determination of the defendants. I also disagree with the opinion of Mr. Justice Scort as to the necessity of this corporation obtaining a certificate from the defend ants or their predecessor, the Commission of Gas and Electricity, before it could exercise any right or privilege under the franchise heretofore granted by the State and the city of New York. It is apparent that this franchise has never been actually exercised. A pretended use of the streets for a short period many years ago over a small territory does not, I think, bring this case within section 68 of the Public Service Commissions Law (Laws of 1907, chap. 429). Whatever franchise the American Electric Illuminating Company claimed to have had in 1889 or 1890, it then abandoned any First Department, April, 1910. [Vol. 137 attempt to exercise a franchise, and for twenty years has been practically extinct. It seems to me to be a violation of the spirit as well as the letter of this statute to claim that such a franchise can be revived after such a period of time and allow the exercise of the powers then granted without the consent of the defendants. I also think that the second reason assigned by the Commissioners justified them in refusing this consent. I think the bonds already issued and which this issue is to be used to retire were clearly illegal, not issued for any corporate purpose, and for which the corporation received no real consideration. It is quite clear that the stock of this alleged corporation was issued without real consideration and has never been approved by the Commission of Gas and Electricity or this defendant. Here is a corporation without property, with a franchise the legality of which is doubtful, with stocks and bonds that have been issued that are at least of doubtful validity, asking to be allowed to issue $50,000,000 of bonds and $10,000,000 of stock without really showing that it is practicable to use any of this stock and bonds in the working of its franchise or providing for the necessary property therefor. It seems to me that the provision of section 69 of the Public Service Commissions Law which provides that the consent of the Commission must precede the issue of any stock or bonds of a public service corporation was designed to prevent the issue of such stocks and bonds as are here asked for, and upon the proceedings before the Commission no necessity appeared that required them to consent to such issue except to take up a series of bonds which, as I look at it, were clearly issued without benefit to the corporation. If the relator should present a case to the Commission by which it would appear that the issue of a reasonable amount of bonds or stock would be necessary for the proper exercise of the relator's franchise, a different question would be presented, but as it stands I think this application was properly denied. MCLAUGHLIN, J., concurred. Writ sustained and determination of Commissioners annulled, with fifty dollars costs and disbursements, and application referred back to the Commission as indicated in opinion. Settle order on notice. App. Div.] Second Department, April, 1910. GEORGE A. HIGGINS, Appellant, v. NEW YORK DOCK COMPANY, Respondent. Second Department, April 22, 1910. Discovery-examination of plaintiff before trial moving affidavit insufficient. In an action to enjoin a nuisance the defendant is not entitled to examine the plaintiff before trial to discover the items and details of the damages alleged. An examination of a party before trial will not be granted on the mere allegation that the deposition is material and necessary if no facts be shown which indicate that there is reason for the statement. APPEAL by the plaintiff, George A. Higgins, 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 30th day of November, 1909, denying the plaintiff's motion to vacate an order for his examination before trial. Joseph F. Conran, for the appellant. Charles E. Hotchkiss [W. MacFarland Lord with him on the brief], for the respondent. JENKS, J.: This action is to enjoin the defendant from working a private railroad on certain highways in the borough of Brooklyn, on the ground that it is a nuisance and that it interferes peculiarly with the plaintiff's business. The moving affidavits are two of the treasurer of the defendant and of its attorney. The treasurer deposes that defendant desires to examine the plaintiff "as to his business, and as to the damage which he alleges he has suffered by reason of the acts of the defendant and as to the manner in which he will be irreparably injured if he is not granted the relief which he asks for in the amended complaint." The attorney deposes only that he verily believes and has advised the defendant "that in order to properly defend this action the deposition of the plaintiff before trial is material and necessary." The plaintiff sets forth in his complaint what his business had been, what business he proposes to carry on, what the nature of the damages to his busi |
