Page:Harvard Law Review Volume 32.djvu/111

77 NOTES 77 that the pubUc service acts of their respective jurisdictions worked no change in existing rates; that, therefore, rates fixed by a previously- valid contract remain binding on the parties and do not become unlawful unless and until the State Commission duly determines them to be so, and that the utility company accordingly has no legal right to discontinue said contract on its own initiative prior to such decision.^" In some states ^^ this point is expressly provided for in the public service statute denying to the public utility the right to itself increase the maximum rates fixed in any contract or grant under which it was operating at the time the act took effect during the term of said con- tract or grant. These statutes have been construed to in no way limit the power of the commission to increase said maximum rates during the life of the contract or grant, nor to deprive the utility of the right to apply to the commission for such an increase before the expiration of said term.^^ It has been held that a statute which denies the utility an opportunity to apply for an alteration in rates is unconstitutional.^* It is submitted that in the absence of such statutory provisions the first of the two views discussed is more in accord with the fundamental principles of the law of public utilities, and that the same view should be taken of term contracts made subsequent to the passage of the public service law, or other regulating statute, unless the provisions of the act do not permit of that construction.^^ A fortiori the public service commission, or similar body, may alter rates fixed by long term contract during said term, whether such contract was made before or after the empowering act,^^ unless said act is con- 925 (191 1); Sultan Timber Co. v. Great Northern R. Co., 58 Wash. 604, 109 Pac. 320 (1910), (Washington statute in force then did not expressly except existing con- tract rates from the prohibition against discrimination). A case going much further and holding that even the commission did not have power to increase rates in spite of such a contract is Public Service Electric Co. v. Board of Public Utility Commissioners and City of Plainfield, 88 N. J. L. 603, 96 Atl. 1013 (1916). " Washington Public Service Commission Law, 191 1, § 34 (Gen. Stat. 1915), §§ 8626-34, relating to gas, electric and water companies, but there is no corre- sponding provision as to common carriers {semble, §§ 20-21) Gen. Stat., §§ 8626- 20, 21. Indiana Public Service Act, 1913, § 7 (Burns' Ann. Stat. 1914), ch. 124 A, §§ 10052 g-7); Illinois Public UtiUties Act, § 36 (Htjrd's Rev. Stat., 1915-16, c. Ill a, § 36); Utah PubUc Utilities Commission Act, Laws of Utah, 191 7, ch. 47, art. 3, §5- ^ Ra)Tnond Lumber Co. v. Ra5maond Light & Water Co., 92 Wash. 330, 159 Pac. 133, P. U. R. 1916 F, 437 (1916); Winfield v. Public Service Commission, 118 N. E. 531) 537 (Ind.) (1918); State Public Utilities Commission v. Chicago, Peoria & St. Louis Railroad Co., 118 N. E. 427 (111.) (1917); Salt Lake City v. Utah Light & Trac- tion Co., 173 Pac. 556 (Utah), P. U. R. 1918 F, 377. N. Y. 123, 83 N. E. 693 (1908). " Osborne v. San Diego Land & Town Co., 178 U. S. 22 (1900), aflBrming Lanning V. Osborne, 76 Fed. 319 (1896); President & Trustees of Village of Kilboum City V. Southern Wisconsin Power Co., 149 Wis. 168, 135 N. W. 499 (191 2); Birming- ham Waterworks Co. v. Brown, 67 So. 613 (Ala.) (19x4). '* Atlantic Coast Electric Ry. Co. v. Board of Public Utility Comm'rs, supra; Salt Lake City v. Utah Light & Traction Co., supra; Whitcomb v. Duquesne Light Co. (Pa. Pub. Serv. Com. 1916), P. U. R. 1917 B, 979; City of Woodburn v. Public Service Commission, supra; Raymond Lumber Co. v. Raymond Light & 'ater Co., supra;
 * " Manitowoc v. Manitowoc & Northern Traction Co., 145 Wis. 13, 28, 129 N. W.
 * ' Trustees of Saratoga Springs v. Saratoga Gas, Electric Light & Power Co., 191