against improper charges of insanity. To this end the law has granted. a special privilege to certain persons holding intimate relationship to the alleged insane person and to certain public officers, of which the superintendent of the poor is one, to institute such a proceeding, and then only upon the supporting certificate of two medical examiners in lunacy, who have been shown to have special qualifications to make the examination and to render their opinion as to sanity or insanity. [6] The wise public purpose to be served in the protection of the public from those who by their apparent irrational acts have given rise to the necessity of an examination into their sanity should not be curtailed by subjecting the person privileged under the statute to initiate the proceeding to an action for malicious prosecution, where the proceeding has been terminated by a judicial finding of sanity, in the absence of proof of a conspiracy on the part of such actor with others to maliciously and without probable cause vex and harass and injure the person charged with insanity, or in the absence of any improper interference with the liberty of the individual during the course of the proceeding. In the case of such a conspiracy, or if the liberty of the person is improperly interfered with during, or as a result of, the proceeding, a different question is presented. In that event an action for false imprisonment or for malicious prosecution would arise, but that is not this case. It therefore seems to me that this proceeding should be considered as sui generis, and upon the basis of sound public policy, in the absence of conspiracy or improper interference with person or property, and where there is no jurisdictional defect in the proceedings, a superintendent of the poor must be deemed to have instituted a proceeding upon his own responsibility and official sanction under his statutory privilege, and where he is held blameless it must be presumed that he did act upon his own responsibility as a public officer charged with that power and duty, and that there can be no inference that a proceeding would have been instituted, if it had not received his official sanction, and if the act had not been committed as his own official act. The question in such a case becomes solely one of power and authority of the superintendent of the poor to act. In the case at bar there is no charge of jurisdictional defect, and the good faith of Munson has the support of presumption, since the jury has failed to find a verdict against him upon that issue. [7] But let us analyze the situation still further, so far as the complaint charges malice and lack of probable cause against the two remaining defendants. Before insanity proceedings could be properly instituted, there must have been a certificate in lunacy by two qualified medical examiners in lunacy, to the effect that the plaintiff was insane. It appears from the complaint that such a certificate was made. The details are given only in part, and there is a general statement that certain of the statements made to the physicians were false or misleading. It appears from the statute that the examining physicians must be qualified examiners in lunacy; that they must make their own examination of the alleged insane person, and state the facts upon which their opinions are based. The form prescribed for the cer 1 (182 N.Y.S.) tificate as appears from the complaint is divided into two parts: One for the statement of the history of the patient, and the other for the statement of the examination of the physicians. There is no claim that the certificate was irregular, or that the physicians were careless or were engaged in any conspiracy with the defendants. I must therefore, in the absence of allegations to the contrary, assume that the certificate complied with the statute and that the examination was conducted with reasonable care. Chase v. Lord et al., 77 N. Y. 1; Buffalo City Bank v. Codd, 25 N. Y. 163, 168; Heuertematte v. Morris, 101 N. Y. 63, 69, 4 N. E. 1, 54 Am. Rep. 657. To hold otherwise would be to presume a violation of the statute and malpractice on the part of the physicians, where nothing to this effect appears. [8] The only allegation of the complaint in relation to the proceeding by the physicians requiring attention is that some of the statements contained in the history of the patient were false or misleading and were supplied by the defendant Halpin. The false or misleading statements are not pointed out. None of them appear to be very vital on the question of insanity, except those in relation to a certain disease and the use of drugs, which were answered in the negative. The facts that a member of plaintiff's family, an aunt, had been insane, and that plaintiff had had a previous attack, were important as a matter of history and statistics, inasmuch as they pointed out the institutions where confinement was had at the time. This would enable the physicians and the committing judge to investigate from the records of such institutions previous attacks of insanity and would be of value in determining the care and treatment that should be provided for such patient in the event of the determination that the patient was insane and needed further treatment. Most of the matters contained in the history as set forth in the certificate in question are immaterial on the question of insanity. I am unable to determine which of the statements in the history were true, or false or misleading, and, if misleading, in what respect. In any event it is not alleged that they did mislead the physicians, or that they had any bearing on the matter determined by the physicians. Essential facts cannot be left to inference. A pleading cannot be upheld simply because a state of facts might exist. Spear v. Downing, 34 Barb. 522; Phillips v. Sonora Copper Co., 90 App. Div. 140, 148, 86 N. Y. Supp. 200. [9] The situation, therefore, is that for aught that appears the certificate in lunacy was a fair statement of the opinions of the physicians made after their examination of the plaintiff that the plaintiff was insane. There is no allegation that the physicians were conspirators or were engaged in any unlawful, malicious, or improper scheme or practice. Did not this, as a matter of law, furnish reasonable and probable cause for the proceedings? A layman is incompetent ordinarily to give an opinion as to the insanity of another. The physician, who is an examiner in lunacy, must be deemed competent in the eyes of the law, in the absence of any charge to the contrary. If a court of justice will not receive the opinion of the layman on such a matter, will it not protect him when acting on the opinion of those who are competent in the eyes of the law? It seems to me that such must necessarily be the rule, where the physicians proceed in a proper manner, and not as the result of any scheme or conspiracy to accomplish an unlawful purpose. Public policy and the dictates of humanity require, for the protection of those of unsound mind and of society in general, that such persons be cared for; on the other hand, the liberty of a citizen and his good name must be jealously safeguarded. A charge of insanity does hold a person up to pity, and has a tendency to cause him or her to be shunned or avoided. Such a charge may be fraught with most mischievous and oppressive consequences. The law therefore permits a certain limited number of persons standing in intimate relationship to the alleged insane person or certain public officers, to petition in insanity proceedings. Accompanying this petition there must be a certificate by two physicians specially qualified to make it. Where the physicians and the petitioner enter into a conspiracy with each other, or with others, to institute such proceedings maliciously and without probable cause, there should be a right of action for the damage suffered. Otherwise there would be little protection from the unscrupulous. Where, however, two qualified medical examiners, independently and not in pursuance of a scheme and conspiracy on their part with others to accomplish an improper purpose, make a certificate in lunacy, it ought to furnish reasonable and probable cause to those who set on foot the proceeding under the Insanity Law (Consol. Laws, c. 27), irrespective of their motives. Burns v. Erben, 40 N. Y. 463. Counsel for the defendants relies upon the application of the case of Paul v. Fargo, 84 App. Div. 9, 82 N. Y. Supp. 369. It may be that this decision is applicable; but, if it is applicable, it must be upon the theory that it ought to be the policy of the law to permit the persons privileged under the statute to bring this proceeding to do so freely and without subjecting themselves to a suit for damages in case of an adverse decision, where they have in no manner interfered with the person or property of the person charged with insanity, and where there is no charge of an improper scheme entered into on the part of the person instituting the same to accomplish an improper purpose maliciously and without probable cause. I have therefore not relied upon that authority, but have sought to analyze the statute in connection with the charges set forth in the complaint, and for the reasons stated I have concluded that the complaint does not state a cause of action against the remaining defendants. (111 Misc. Rep. 692) (182 N.Y.S.) PUBLIC SERVICE COMMISSION, SECOND DIST., v. PAVILION NATURAL GAS CO. (Supreme Court, Special Term, Albany County. April, 1920.) 1. Gas 14 (1)—Company can increase rates, after 30 days' notice, without approval of commission. Under Public Service Commissions Law, a gas company, unlike a railroad company, can make effective an increase in rates 30 days after filing a new schedule of the rates with the commission, though the increase has not been sanctioned by the commission, and though a proceeding involving that issue is still pending. 2. Gas 14 (2)-Authority to increase rates after notice to commission not limited by franchise. A gas company can increase its rates above those specified in its franchise under Public Service Commissions Law, § 66, which makes no exception of cases where rates are fixed by franchise, so that such increase is not in violation of law, within section 74. 3. Gas 14 (2)-Legislature can authorize gas company to increase rates notwithstanding franchise. The Legislature, under its paramount rate-making power, can prescribe a method of changing a gas rate beyond that agreed upon between a gas company and a local governmental agency, and can permit the filing of the rates to abrogate the franchise agreements. 4. Public Service Commissions 19 (1)-Order forbidding increased rates before hearing evidence is unlawful. Under Public Service Commissions Law, §§ 66, 72, the commission is required to hear evidence to determine the reasonableness of rates before entering an order holding them unreasonable, and an order entered before hearing does not support summary proceedings. 5. Public Service Commissions 6-Can only do what statute specifically authorizes. The Public Service Commission is a body of limited powers. and can only do that which the statute specifically prescribes it may do. Summary proceeding by the Public Service Commission, Second District, against the Pavilion Natural Gas Company. Proceeding dismissed. Ledyard P. Hale, of Albany, for petitioner. James M. E. O'Grady, of Rochester, for respondent. HINMAN, J. This is a summary proceeding under section 74 of the Public Service Commissions Law (Consol. Laws, c. 48) to have the court summarily inquire into the facts and to command the respondent, the Pavilion Natural Gas Company, to cease charging for its gas more than the maximum rate allowed in any municipal franchise' agreement under which it has been distributing natural gas in various villages and towns in the counties of Genesee and Livingston. some of the villages and towns the franchise rate is 45 cents per 1,000 cubic feet, and in others it is 40 cents. Under the franchise agreements a right was given to respondent to lay its pipes in the streets and public places of the village or town upon the condition, amongst others, that the charge for gas to the inhabitants thereof should not exceed the certain rate fixed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In August, 1919, the respondent filed a petition with the petitioner, asking for an order fixing the price of its gas at the rate of 75 cents per 1,000 cubic feet. Apparently there were some unavoidable delays in procuring a hearing upon this petition, and on February 7, 1920, the respondent filed a schedule of rates in accordance with section 66 of the Public Service Commissions Law, and upon notice to the commission and proper publication thereof the schedule was made effective on March 10, 1920. The schedule made a rate of 85 cents per 1,000 cubic feet, with a discount of 10 cents for prompt payment. The claim of the respondent is that this new rate provided by the schedule filed went into effect by operation of law on March 10, 1920, and has not been interfered with by any valid order of the commission. The claim of the commission is that charging and collecting an 85-cent rate, in violation of the 40 and 45 cent limitations in the respondent's franchise, is a "violation of law," within the meaning of section 74 of the Public Service Commissions Law, giving rise to the right of the commission to come into court and seek the injunctive relief demanded here. The issue presented is whether the respondent gas company may of its own motion disregard the maximum limitations on its rates by putting its new schedule, filed according to law, into effect at the day fixed therein beyond the 30-day period prescribed by the law, or whether, on the contrary, before collecting increased rates, such rates should be found to be just and reasonable by the commission, after investigation as to the justness and reasonableness of the proposed changes. The proceedings already had require me to consider the issue from two standpoints, viz.: Whether there has been a "violation. of law"; or whether there has been a violation of "any order of the commission." [1] To sustain its contention that there was a "violation of law" the commission cites the cases of Willcox v. Richmond Light & Railroad Co., 142 App. Div. 44, 48, 50-52, 128 N. Y. Supp. 266, affirmed 202 N. Y. 515, 95 N. E. 1141; Public Service Commission v. Westchester Street R. R. Co., 206 N. Y. 209, 96 N. E. 536. These cases have interpreted the law as to railroad cases. They have no application to gas cases, as I construe the law. In the case of Public Service Commission v. Iroquois Natural Gas Co., 184 App. Div. 285, 171 N. Y. Supp. 379; affirmed, 226 N. Y. 580, 123 N. E. 885, the court, in construing the gas provisions of the law, called attention to the difference between a railroad and a gas case, and held that "under the statutes as they now stand it is the right of the gas company to increase its rates and make the increase effective 30 days after filing with the commission its schedule of new rates," even though the increase has not been sanctioned by the commission, and even though a proceeding involving that issue is still pending. [2] The counsel for the commission, however, seeks to distinguish his Iroquois Gas Company Case from the case under consideration, upon the ground that it did not involve an increase over the local |