Public Service Commission v. Jamaica Water Supply Co.

• Citation: 54 A.D.2d 10,386 N.Y.S.2d 230
• Parties: In the Matter of the PUBLIC SERVICE COMMISSION of the State of New York, Appellant, v. JAMAICA WATER SUPPLY COMPANY et al., Respondents.
• Decision Date: 05 August 1976
• Court: New York Supreme Court Appellate Division

Page 230

386 N.Y.S.2d 230

54 A.D.2d 10

In the Matter of the PUBLIC SERVICE COMMISSION of the State of New York, Appellant, v. JAMAICA WATER SUPPLY COMPANY et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Aug. 5, 1976.

Peter H. Schiff, Albany (Charles R. Gibson, Albany, of counsel), for appellant.

Meyer, English & Cianciulli, P.C., Mineola (Bernard S. Meyer, Mineola, of counsel), for respondents.

W. Bernard Richland, Corp. Counsel, New York City (John C. Brennan, New York City, of counsel), for City of New York, amicus curiae.

Before SWEENEY, J.P., and MAIN, LARKIN, HERLIHY and REYNOLDS, JJ.

HERLIHY, Justice.

Respondent Jamaica Water Supply Company (hereinafter Jamaica) is a waterworks corporation 96% Of whose common stock is owned by respondent Welsbach Corporation. By orders of February 27 and 28, 1974 and an amended order of March 26, 1974 issued by the Public Service Commission, Jamaica was prohibited from declaring or paying dividends on its common stock. The Commission found that it had accumulated some $275,000 in overdue accounts payable and concluded that the company's failure to pay its bills could impair its credit and impede its ability to provide adequate service at just and reasonable rates. At such time, Jamaica's total accounts payable amounted to nearly $1,000,000, of which a substantial amount was overdue; it had a negative working capital of over $1,000,000; it had no unused line of credit; and it was operating at a net loss. It had retained earnings, however, of approximately $3,370,000.

Thereafter, in May of 1975, Jamaica filed an application with the Commission to have the prohibition lifted in view of its alleged improved financial condition. On October 15, 1975 Jamaica withdrew the application and paid a common stock dividend in violation of the outstanding Public Service Commission orders. The Commission then instituted this proceeding pursuant to section 89--m of the Public Service Law to enforce its orders. Special Term dismissed the petition on the ground that the Commission had no statutory authorization to issue such orders.

The issue raised in this case is whether or not the Commission has the Power to restrain a water supply company from paying dividends on its common stock.

The Commission may exercise such powers as are expressly conferred upon it by the Legislature (Matter of Village of Boonville v. Maltbie, 272 N.Y. 40, 4 N.E.2d 209), or which are incidental to the exercise of such powers (Kovarsky v. Brooklyn Union Gas Co., 279 N.Y. 304, 18 N.E.2d 287) or necessarily implied therefrom (People ex rel. N.Y. Railways Co. v. Public Service Commission, 223 N.Y. 373, 119 N.E. 848). The Public Service Law has no express authorization for the control of cash dividends and it does not appear that any single statutory provision would, by itself, imply such power.

In Matter of New York State Electric & Gas Corp. v. Public Service Comm. of State of N.Y., 245 App.Div. 131, 134, 281 N.Y.S. 384, 387, affd. 274 N.Y. 591, 10 N.E.2d 567 it was stated that the utility is 'free to control the management of (its company) * * * as long as such management indicates that it is carried on for the benefit of the operating companies and in the public interest'. It was further stated that '(i)t is the duty of the Commission to prevent the imposition upon the public of unfair rates, and the creation of a rate base which is not justified' (id.).

In our opinion the general mandate of the Public Service Law to assure safe and adequate service at just and reasonable rates (Public Service Law, § 89--b, subd. 1; § 89--c, subd. 4; § 89--j) necessarily implies the power to control the disbursement of funds as dividends. The fact that dividends are ordinarily solely a matter of corporate affairs does not insulate them from having an impact on rates and service. The solvency of a public utility is clearly related to its status as an organization capable of providing the public service for which it was franchised.

The appropriate relief for the respondents is to seek review through the Public Service Commission whereupon they may seek further review of the resulting order through court proceedings, if they be so advised. (Cf. Matter of New York State Electric & Gas Corp. v. Public Service Comm, of State of N.Y., supra.)

The order and judgment should be reversed, on the law, without costs, and judgment directed to be entered in favor of petitioner for the relief demanded in the petition and order to show cause.

Order and judgment reversed, on the law, without costs, and judgment directed to be entered in favor of petitioner for the relief demanded in the petition and order to show cause.

LARKIN and REYNOLDS, JJ., concur.

SWEENEY, J.P., and MAIN, J., dissent and vote to affirm in an opinion by SWEENEY, J.P.

SWEENEY, Justice Presiding (dissenting).

We are unable to agree with the majority's conclusion that the Public Service Commission, on this record, had the implied power to impose restrictions on the payment of cash dividends by...