1919.] Points of counsel. [225 N. Y.] of 1907 has not yielded a reasonable average return upon the capital invested. (Willcox v. Cons. Gas Co., 212 U. S. 19; Des Moines Gas Co. v. Des Moines, 238 U. S. 153; Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S. 655; People ex rel. Mun. Gas Co. v. P. S. Comm., 224 N. Y. 156; People v. Budd, 117 N. Y. 1; B. U. Gas Co. v. City of New York, 50 Misc. Rep. 450.) The complaint is defective in that it fails to show or allege that its entire gas and electrical operations in the city of Albany do not yield a reasonable average return. (Pennsylvania R. Co. v. Tower, 245 U. S. 6; Minneapolis R. Co. v. Minn., 186 U. S. 257; St. Louis R. Co. v. Gill, 156 U. S. 567; Minnesota Rate Cases, 230 U. S. 383.) The rate fixed by chapter 227 of the Laws of 1907 can be increased only by the legislature. (People ex rel. Municipal Gas Co. v. P. S. Comm., 224 N. Y. 156; People v. Budd, 117 N. Y. 1, 25; Brooklyn Union Gas Co. v. City of New York, 188 N. Y. 334.) Merton E. Lewis, Attorney-General (Wilber W. Chambers of counsel), for Attorney-General, impleaded. The complaint does not state facts sufficient to constitute a cause of action because of the absence of an allegation that the return from its entire operations, gas and electrical, fails to give it a reasonable return on its investments. (Smyth v. Ames, 169 U. S. 466.) William L. Ransom and Harry M. Chamberlain for Public Service Commission, First District, intervening. The complaint does not make out a cause of action for injunctive relief restraining the defendant public officers from performing their duty to enforce the statute. (Lee v. O'Malley, 140 App. Div. 595; Wallack v. Society, 67 N. Y. 23; Matter of Sawyer, 124 U. S. 200; Fitts v. McGhee, 172 U. S. 516.) The complaint fails to allege any facts, or to make any statements whatever, showing [225 N. Y.] Opinion, per CARDOZO, J. [Jan., or tending to show that chapter 227 of the Laws of 1907 was unconstitutional,” “ " "void " or " confiscatory" at the time it was passed or at any time within the ensuing ten or eleven years. As a valid exercise of legislative power when enacted, the 1907 statute does not and cannot become "void" and "unconstitutional," ten or eleven years later, because of changed or temporary conditions. (Norton v. Shelby County, 118 U. S. 425; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 47; People v. Dooley, 171 N. Y. 74; People ex rel. Farrington v. Mensching, 187 N. Y. 8; Matter of Markland v. Scully, 203 N. Y. 158; People ex rel. Hotchkiss v. Smith, 206 N. Y. 231; People ex rel. Woodruff v. Britt, 206 N. Y. 246; Van Antwerp v. State of New York, 218 N. Y. 422; Cooley on Const. Lim. [7th ed.] 259.) William P. Burr, Corporation Counsel (John P. O'Brien and Vincent Victory of counsel), for City of New York, amicus curiæ. CARDOZO, J. In April, 1907, the legislature of this state enacted a statute which fixed the maximum charge for illuminating gas in the city of Albany at $1 per thousand cubic feet (L. 1907, ch. 227). Violation of this act was to involve, for each offense, a forfeiture of $1,000 to the People of the State. For many years, the plaintiff, a corporation, has sold gas to consumers in Albany. It has not exceeded in its charges the statutory maximum. But it asserts that changed conditions have made those charges inadequate, and that to compel adherence to the statute is to confiscate its property. At first, it sought relief from the Public Service Commission. Our ruling was that the commission had no power to supersede the statutory rate, and that for confiscation, however unlawful, there must be recourse to other remedies (People ex rel. Municipal Gas Co. v. Public Service 1919.] Opinion, per CARDOZO, J. [225 N. Y.] Commission, 224 N. Y. 156). This action was then begun. The complaint, verified August 20, 1918, alleges that during 1917 the net earnings were less than four per cent. upon the value of the property; that during the first six months of 1918, there was a deficit of over $31,000; that during the last six months of 1918, the deficit will be greater; that the cost of material and of labor has risen with the war, and that there is no prospect of any decrease; and that if these conditions continue, the deficit for 1918 and also for 1919 will be between $75,000 and $100,000 a year. The defendants are the Public Service Commission for the second district, the city of Albany, the attorney-general of the state, and the district attorney of the county of Albany. Judgment is demanded that, they be restrained from compelling the plaintiff to adhere to the statutory maximum. To that complaint, the Public Service Commission demurred, and moved for judgment on the pleadings. The Supreme Court by an order made November 2, 1918, sustained the demurrer, and gave judgment for the defendant, with leave to the plaintiff to amend. The Appellate Division affirmed the order, and allowed an appeal to this court. (1) A challenge to our power meets us at the outset. We are told that the wrong, if there is any, has no remedy in the courts. There is no denial that the rates of public service corporations ought not to be so reduced by statute as to preclude a fair return, and that reduction below this is confiscation (Smyth v. Ames, 169 U. S. 466; Minnesota Rate Cases, 230 U. S. 352, 434; Missouri v. Chicago, Burlington & Quincy R. R. Co., 241 U. S. 533; Rowland v. St. Louis & S. F. R. R. Co., 244 U. S. 106; City & County of Denver v. Denver Union Water Co., 246 U. S. 178). But the argument is that a statute is either valid or invalid at the moment of its making, and from that premise the conclusion is supposed to follow that there is a remedy for present confiscation, but none for confiscation [225 N. Y.] Opinion, per CARDOZO, J. [Jan., that results from changed conditions. We do not view so narrowly the great immunities of the Constitution, or our own power to enforce them. A statute prescribing rates is one of continuing operation. It is an attempt by the legislature to predict for future years the charges that will yield a fair return. The prediction must square with the facts, or be cast aside as worthless (Ex parte Young, 209 U. S. 123, 147, 148). It must square with them in one year as in another, at the beginning but equally at the end. In all such legislation, from the hour of its enactment, there thus inheres the seed of an infirmity which the future may develop. It is the infirmity that always waits upon prophecy; the coming years must tell whether the prophecy is true or false. All that we can say at the outset is that the power to regulate exists. The validity of its exercise depends upon the nicety of the adjustment between forecast and events. This is as true of a regulation which looks forward a year as of one which looks forward a decade or a century. In either case, with differences only of degree, there is a forecast of the future, which must be justified by results. Into every statute of this kind, we are to read, therefore, an implied condition. The condition is that the rates shall remain in force at such times and at such only as their enforcement will not work denial of the right to a fair return. When the return falls below that level, the regulation is suspended. When the level is again attained, the duty of obedience revives. There would be no obscurity about this if the condition were expressed. It is no less binding because it is implied. The Constitution is the supreme law; and statutes are written and enforced in submission to its commands. We turn to the precedents, and they give strength to our conclusion. We find no support in them for the principle, now pressed on us by counsel, that confiscation, if only it is avoided to-day, may be practised with impunity 1919.] Opinion, per CARDOZO, J. [225 N. Y.] to-morrow. On the contrary, through repeated decisions, there runs the consistent thought that, in controversies of this order, experience is the final test, that the courts must bide their time, and let the workings of the law decide (Willcox v. Consol. Gas Co., 212 U. S. 19; City of Knoxville v. Knoxville Water Co., 212 U. S. 1; Northern Pac. Ry. Co. v. North Dakota, 216 U. S. 579; Cedar Rapids Gas L. Co. v. City of Cedar Rapids, 223 U. S. 655, 670; Missouri v. C., B. & Q. R. R. Co., 241 U. S. 533, 540; Darnell v. Edwards, 244 U. S. 564, 570; Van Dyke v. Geary, 244 U. S. 39). Bills to annul rates have been dismissed “without prejudice " while the outcome remained uncertain. Bills to annul the same rates have afterwards been sustained when the vision of results was clarified by the wisdom that follows the event (Nor. Pac. Ry. Co. v. North Dakota, 236 U. S. 585; Missouri v. C., B. & Q. R. R. Co., supra, at p. 540). But even at such times, the courts have not forgotten the possibilities of the future. There has been no irrevocable annulment. Leave has been reserved to the appropriate representatives of the state to move to reinstate the suspended rates whenever changing circumstances may permit an adequate return (Minnesota Rate Cases, 230 U. S. 352, 473; Missouri Rate Cases, 230 U. S. 474, 508; Missouri v. C., B. & Q. R. R. Co., supra). Nowhere is there the thought or the suggestion of the thought that the controversy ceases to be justiciable when confiscation is postponed. It is true, as counsel for the respondents urge, that the plaintiff has in such circumstances "the historic right " of petition to the legislature for relief against oppression. But that is not its only right (Village of Saratoga Springs v. Saratoga Gas, E. L. & P. Co., 191 N. Y. 123, 150). It has the right, now also grown historic, to invoke, when constitutional immunities are threatened, the judgment of the courts. (2) The questions remain whether confiscation is a permissible inference from the allegations of the complaint. |