In the furnishing of electricity to a country or suburban district, each customer is to a greater or less degree differently situated from his neighbor. The distance from the main or feed line, the number of lights used, the means of access, whether along a public way or over private property, the natural obstacles to be overcome, etc., are proper subjects for consideration in determining the rate to be charged.-Mercur v. Electric Light Co., 19 Pa. Super. Ct. 519.

[17] Recovery of excess paid.

Money paid by consumers of gas in excess of the rate which could be lawfully charged, the consumers being ignorant of the fact that the charge was illegal, may be recovered.- Pingree v. Mutual Gas Co., 107 Mich. 156, 65 N. W. 6.

[18] Effect of failure of patron to pay.

Under N. Y. Transp. Corp. L., § 68, a gas and electric company may cut off the supply of gas to a patron who fails to pay, even before the security deposited by such patron is used up.- Hewsey v. Queens Borough Gas & Elect. Co., 47 Misc. (N. Y.) 375, 93 N. Y. Supp. 1114.

Where a person has made separate contracts with a gas company, involving the use of separate meters, pipes, etc., his failure to pay, in relation to one such contract, does not warrant shutting off the supply of gas as to the others.- Baltimore Gas. L. Co. v. Colliday, 25 Md. 1.

[19] Actions and proceedings.

An injunction temporarily restraining officers charged with duty of enforcing rates fixed by statute for gas, pending determination of the constitutionality of such rates, will not be enlarged to restrain the actions of individual consumers who are not parties to the suit.— Consolidated Gas Co. v. Mayer, 146 Fed. 150.

Where the legislature imposes a ruinous penalty for charges in excess of a maximum fixed by it, and the gas company proposes to test in the courts the lawfulness of such maximum rates, a preliminary injunction will be granted to restrain the attempted enforcement of such maximum or collection of penalties for charges in excess thereof, all sums collected by the company in excess of such maximum to be impounded in the custody of the court until the lawfulness of the legislative action is determined.- Consolidated Gas Co. v. Mayer, 146 Fed. 150.

A complaint alleging that the defendant corporation furnishing electricity to plaintiff, unlawfully and unjustly discriminated against him by charging other persons a less rate for the same service under similar conditions, and that the payments made by the plaintiff were made without notice or knowledge that others were receiving more advantageous

rates, states a good cause of action, for recovery of the excess paid.Armour Packing Co. v. Edison E. L. Co., 115 App. Div. (N. Y.) 51, 100 N. Y. Supp. 605.

A corporation may at any time have recourse to the state or federal courts to test the validity of an enactment of the legislature prescribing or regulating the rates to be charged for gas, upon the ground that it is so low that it will deprive the stockholders of the right to a reasonable profit.- Richman v. Consolidated Gas Co., 114 App. Div. (N. Y.) 216, 100 N. Y. Supp. 81; affd. on other points, 186 N. Y. 209, 78 N. E. 871; Grossman v. Consolidated Gas. Co., 114 App. Div. 242; affd. 186 N. Y. 541, 78 N. E. 1104.

Where the state has empowered a city council to fix the maximum prices of gas, the council has fixed a maximum, and a federal court has enjoined the company from charging or the city from enforcing such rates, the state may, nevertheless, assert the validity of the limitation, and sue to enforce it. State ex rel. Attorney General v. Cincinnati L. & C. Co., 18 Oh. St. 262.

§ 73. Forfeiture for noncompliance with order; *[actions to recover forfeiture].-Every gas corporation and electrical corporation and the officers, agents or employees thereof shall obey, observe and comply with every order made by the commission under authority of this act, so long as the same shall be and remain in force. Any such corporation, or any officer, agent or employee thereof, who knowingly fails or neglects to obey or comply with such order, or any provision of this act, shall forfeit to the state of New York not to exceed the sum of one thousand dollars for each offense. Every distinct violation of any such order or of this act, shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense. An action to recover such forfeiture may be brought in any court of competent jurisdiction in this state in the name of the people of the state of New York, and shall be commenced and prosecuted to final judgment by counsel to the commission. In any such action all penalties and forfeitures incurred up to the time of commencing the same may be sued for and recovered therein, and the commencement of an action to recover a penalty or forfeiture shall not be, or be held to be, a waiver of the right to recover any other penalty or forfeiture; if the defendant in such action shall prove that during any portion of the time for which it is sought to recover penalties or forfeitures for a violation of an order of *Words in brackets not a part of section heading as enacted.-Ed.

the commission the defendant was actually and in good faith prosecuting the suit, action or proceeding in the courts to set aside such order, the court shall remit the penalties or forfeitures incurred during the pendency of such suit, action or proceeding. All moneys recovered in any such action, together with the costs thereof, shall be paid into the state treasury to the credit of the general fund.

General power of the state to regulate property devoted to public use,see ante, § 1, notes [1]-[22].

General rules of statutory construction,- see ante, § 1, notes [23][40].

What statutes construed as penal,- see ante, § 1, note [35].

Construction of statutes containing penal provisions,- see ante, § 1, notes [36], [37].

Validity of commission plan or regulation,- see ante, § 4, note [14]. Actions by aggrieved persons for loss or damage caused by violations of this Act,-see ante, § 40.

Forfeiture for non-compliance with orders of the Commission by common carriers, see ante, § 56.

Proceedings to recover penalties and forfeitures against common carriers, see ante, § 59.

L. 1906, ch. 125, limited the prices which might be charged for gas in Manhattan Borough, and provided that any corporation or person violating the act should forfeit $1,000 for each offense.-Held, that this penalty was so ruinous as to entitle company to an injunction restraining the attempt to enforce these provisions until the constitutionality of the rates had been determined; all charges collected, however, in excess of those fixed by the law to be impounded to await the outcome of the suit as to constitutionality.— Consolidated Gas Co. v. Mayer, 146 Fed. 150.

§ 74. Summary proceedings* [to enforce orders of commissions]. Whenever either commission shall be of opinion that a gas corporation, electrical corporation or municipality within its jurisdiction is failing or omitting or about to fail or omit to do any thing required of it by law or by order of the commission or is doing anything or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the commission, it shall direct counsel to the commission to commence an action or proceed* Words in brackets are not a part of section heading as enacted.-ED.

ing in the supreme court of the state of New York in the name of the commission for the purpose of having such violations or threatened violations stopped and prevented either by -mandamus or injunction. Counsel to the commission shall thereupon begin such action or proceeding by a petition to the supreme court alleging the violation complained of and praying for appropriate relief by way of mandamus or injunction. It shall thereupon be the duty of the court to specify the time not exceeding twenty days after service of a copy of the petition within which the gas corporation, electrical corporation or municipality complained of must answer the petition. In case of default in answer or after answer, the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct without other or formal pleadings, and without respect to any technical requirement. Such other persons or corporations, as it shall seem to the court necessary or proper to join as parties in order to make its order, judgment or writs effective, may be joined as parties upon application of counsel to the commission. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford appropriate relief.

Enforcement of orders of former Gas and Electricity Commission,see N. Y. Gas & El. Com. Act, § 20.

Duties of counsel to the Commission on proceedings to enforce its orders, see ante, § 12.

Limitation of grounds upon which courts may interfere with the enforcement of orders of the Commission,- see ante, § 23.

Summary proceedings to enforce orders of Commission against common carriers, see ante, § 57.

General rules of statutory construction,- see ante, § 1, notes [23]-[40].

The state has the right to fix a proper rate for gas. Prima facie it is to be presumed that the state's rate is a proper one, and the burden is on the complainant to show it is not.- Consolidated Gas Co. v. Mayer, 146 Fed. 150.

Neither the N. Y. Gas and Electricity Commission Act nor L. 1906, ch. 125, undertake to deny the complainant gas company access to any

court to test the merit of the contention that it makes, viz., that the new rate is confiscatory.- Consolidated Gas Co. v. Mayer, 146 Fed. 150.

Mandamus will lie to compel a gas company to furnish gas to those who have a right to receive it and who offer to comply with the reasonable general conditions imposed by the company.- People v. Manhattan Gas Co., 45 Barb. (N. Y.) 136.

Mandamus is the proper remedy to compel a gas company to furnish gas to one entitled thereto.— State ex rel. Wood v. Consumers Gas T. Co., 157 Ind. 345, 61 N. E. 674, 55 L. R. A. 245.

Mandamus is the proper proceeding by which to compel a gas company to furnish gas to those entitled to receive it.- Portland Natural Gas & O. Co. v. State, 135 Ind. 54, 34 N. E. 818, 21 L. R. A. 639.

Duties of corporations arising out of contract relations will not be enforced by mandamus.- Commonwealth ex rel. Stern v. Wilkesbarre Gas Co., 2 Kulp (Pa.), 499.

Equity has jurisdiction to restrain a gas corporation from demanding and collecting excessive or unreasonable rates.- City of Madison v. Madison Gas & Elect. Co., 129 Wis. 249, 108 N. W. 65.

§ 75. Defense in case of excessive charges for gas or electricity. If it be alleged and established in an action brought in any court for the collection of any charge for gas or electricity, that a price has been demanded in excess of that fixed by the commission or by statute in the municipality wherein the action arose, no recovery shall be had therein, but the fact that such excessive charges have been made shall be a complete defense to such action.

Similar provision in New York Gas and Electricity Commission Act, see N. Y. Gas & El. Com. Act, § 21.

Powers of Commission to fix prices for gas and electricity,— see ante, $ 72.

General rules of statutory construction,- see ante, § 1, notes [23]-[40].

The passage of a law taking away defenses to civil actions based on rules of law which are purely arbitrary is not a deprivation of property without due process of law. Plummer v. No. Pac. R. Co., 152 Fed. 206.