Kargman v. Department of Public Utilities

• Decision Date: 26 July 1956
• Parties: , 15 P.U.R.3d 61 Max R. KARGMAN et al. v. DEPARTMENT OF PUBLIC UTILITIES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 255

136 N.E.2d 255

334 Mass. 497, 15 P.U.R.3d 61

Max R. KARGMAN et al. v. DEPARTMENT OF PUBLIC UTILITIES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 1956.

Decided July 26, 1956.

Max R. Kargman, pro se, Marie W. Kargman, Boston, with him, for plaintiff.

Matthew S. Heaphy, Asst. Atty. Gen., for Department of Public Utilities.

Frederick M. Ives, Boston, Finley H. Perry, Dover, with him, for Boston Edison Co.

Before QUA, C. J., and RONAN, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

This case is controlled by the decision in Boston Real Estate Board v. Department of Public Utilities (Quaker Building Co. v. Department of Public Utilities), Mass., 136 N.E.2d 243. The plaintiffs in this case have been purchasing electricity from Edison and using part of it for lighting corridors and other common areas in the building at 18 Tremont Street, Boston, and part for resale to the owners of the adjoining building at 10 Tremont Street. In 1949 the plaintiffs requested Edison to furnish the building at 18 Tremont Street with a larger meter and additional electricity for resale to the tenants in that building. Edison refused. The plaintiffs petitioned the department for an order under G.L. (Ter.Ed.) c. 164, § 92. The department consolidated the case with the petition of Edison which resulted in the orders before us in the companion cases. The order before us for review dismissed the petition.

There was no error. For reasons stated the plaintiffs have no standing to demand electricity at bulk rates to expand the practice of resale. There is no rule of law, such as the plaintiffs assert, that prevents Edison from discontinuing the practice of selling to resellers at wholesale rates. The order would not deny electricity to anyone to whom it has been supplied under the former rate schedule or make it less freely available to any consumer. The cases denying the entire discontinuance of a utility service once undertaken, absent a showing of confiscatory losses, are manifestly distinguishable. So also are In re Mutters' Express, P. U. R. 1921B, 452, Mass. D. P. U. (1921), and Postal Cable Telegraph Co. v. Cumberland Telephone & Telegraph Co., C.C.1910, 177 F. 726, cited by the plaintiffs.

The principle that rate-making must be based primarily on cost factors of the utility company does not help the plaintiffs. The distinctions are plain and need not be elaborated between this case and one in which, because a soundly based...