[225 N. Y.] Opinion, per HISCOCK, Ch. J. [Dec., restriction of our jurisdiction. An appeal, upon the ground asserted here, must present to us directly and primarily an issue determinable only by our construction of the Constitution of the state or of the United States." The appellant who relies upon this provision as an authority for his appeal assumes the burden of presenting to us a record which establishes that such construction has been not only directly but necessarily involved in the decision of the case. If the decision was or may have been based upon some other ground, the appeal will not lie. We think that in this case it affirmatively appears that the construction of the Constitution was not involved. The court at Special Term, as appears by its opinion, denied the application enforcing an inspection of the indictment largely on the ground that the appellant by application to the Court of General Sessions wherein the indictment was pending could secure all of the rights to which he was entitled, or if these were denied raise a question of law which could be reviewed on appeal from any conviction. Having thus reached the conclusion, as I think correctly, that the appellant's rights could be enforced otherwise than by a writ of mandamus and which justified the court in denying the application as a matter of discretion (People ex rel. Ellis-Joslyn Pub. Co. v. Common Council of Lackawanna, 223 N. Y. 445, 449), the learned court proceeded to make an order explicitly stating that the application was not denied as a matter of discretion but as a matter of law When the case reached the Appellate Division that court, after the consideration of other questions which we do not find it necessary to review, also took the view entertained by the Special Term that appellant's rights could and would be protected on application to the court where the indictment was pending and, therefore, that his application for the writ against the clerk thereof should not be granted, 1918.] Statement of case. [225 N. Y.] and in this connection it explicitly referred to the principle that the Appellate Division as well as the Special Term was vested with discretionary powers in such matter. It simply affirmed the order of the Special Term and if this were all we might be compelled to regard the affirmance as based upon the law and not upon discretionary powers. In view of the present provision of the Code, however, that the opinion of the Appellate Division must be regarded as part of the papers upon which the appeal is heard in this court (Code Civ. Pro. § 1237; People ex rel. Flynn v. Woods, 218 N. Y. 124), we can look to what was therein said in this case for the purpose of determining whether appellant's application has been denied as a matter of discretion. When we do this, it is clearly made apparent that the affirmance was based upon the exercise of a discretionary power and that the construction of the Constitution was in no way involved. This view leads to a dismissal of the appeal without any consideration of the merits of appellant's various propositions. CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN and CRANE, JJ., concur. Appeal dismissed. MUNICIPAL GAS COMPANY OF THE CITY OF ALBANY, Appellant, v. PUBLIC SERVICE COMMISSION, SECOND DISTRICT, Respondent, Impleaded with Others. Gas companies — inadequate and confiscatory rates fixed by statute power of courts to regulate rates aggrieved party may maintain action in equity to restrain enforcement of confiscatory rates sufficiency of pleading. 1. The legislature enacted a statute which fixed the maximum charge for illuminating gas in the city of Albany at one dollar per thousand cubic feet (L. 1907, ch. 227). The plaintiff in its complaint herein asserts that changed conditions have made those charges inadequate, [225 N. Y.] Statement of case. [Jan., and that to compel adherence to the statute is to confiscate its property. It further alleges that during the year 1917 and the first six months of 1918 there was a large deficit owing to the decrease in net earnings; that the deficit is increasing and likely to increase further; that the cost of material and of labor has risen with the war, and that there is no prospect of any decrease therein; and that if these conditions continue, the deficit for 1918 and also for 1919 will be such as that the rate will be confiscatory. Judgment is demanded that the defendants be restrained from compelling the plaintiff to adhere to the statutory maximum. To that complaint the public service commission demurred, and the Appellate Division affirmed an order sustaining the demurrer and allowed an appeal to this court. Held, that the rates of public service corporations ought not to be so reduced by statute as to preclude a fair return, and that reduction below this is confiscation. Into every statute of this kind is to be read the implied condition that the rates shall remain in force at such times and at such only as their enforcem ent will not work denial of the right to a fair return. Any party aggrieved may invoke the judgment of the courts to restrain the enforcement of statutes which have become confiscatory. Held, fu rther, that considered as a pleading and accepting it with all its reasonable inferences, unexplained and undenied, the allegations of the complaint make out a prima facie case of the denial of a just return. 2. The plaintiff sells electric current as well as gas. At the outset its charter confined it to the manufacture and sale of gas. The manufacture and sale of electric current was added at a later date by separate act, and the complaint alleges that the gas and electric operations of plaintiff have been and now are conducted as distinct and separate departments. Held, that under these and other acts, neither business is an incident of the other, nor has any relation to the other. Hence, the statement of a cause of action does not involve the disclosure of the earnings from sales of electricity. 3. There is by resort to this action in equity the avoidance of multiplicity of actions, the saving of waste and friction, the opportunity to analyze accounts so complex as to be unintelligible to juries, and protection against penalties and losses. The plaintiff's business is menaced and there is no adequate remedy at law, and equity, therefore, properly intervenes to save it from impairment in a single comprehensive action. Municipal Gas Co. v. Public Service Comm., 186 App. Div. 933, reversed. (Argued December 9, 1918; decided January 7, 1919.) 1919.] Points of counsel. [225 N. Y.] APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1918, which affirmed an order of Special Term granting a motion by defendant, respondent, for judgment on the pleadings. The following question was certified: "Does the complaint in this action state facts sufficient to constitute a cause of action against the defendant Public Service Commission, Second District." Neile F. Towner for appellant. Chapter 227 of the Laws of 1907 is unconstitutional against plaintiff, appellant, because confiscatory and plaintiff, appellant, can properly raise such issue at this time. (Willcox v. Consolidated Gas Co., 212 U. S. 41; Smyth v. Ames, 169 U. S. 466; Chicago, Milwaukee & St. Paul Railway v. Minnesota, 134 U. S. 418; Minnesota Rate Cases, 213 U. S. 433; People ex rel. Kings County Lighting Co. v. Willcox, 210 N. Y. 479; Covington, etc., Turnpike Co. v. Sanford, 164 U. S. 578; Des Moines Gas Co. v. Des Moines, 238 U. S. 143; Denver v. Denver Union Water Co., 246 U. S. 194.) A doctrine that a statute can only be judged as to its constitutionality by the conditions existing at the time of its enactment would be intolerable and remove practically all the safeguards to property provided by the fundamental law of the land. (Missouri v. Chicago, B. & Q. R. Co., 241 U. S. 539; Knoxville v. Knoxville Water Co., 212 U. S. 1; Smyth v. Ames, 169 U. S. 466; Willcox v. Consolidated Gas Co., 212 U. S. 19; Northern P. R. Co. v. North Dakota, 216 U. S. 579; Louisville v. Cumberland Tel. & Tel. Co., 225 U. S. 430; Des Moines Gas Co. v. Des Moines, 238 U. S. 153; Darnell v. Edwards, 244 U. S. 70.) The test of the constitutionality of chapter 227 of the Laws of 1907, fixing the maximum rate for gas in the city of Albany, is by an action in equity, and the Supreme Court of this state [225 N. Y.] Points of counsel. [Jan., has jurisdiction. (Missouri v. Chicago, Burlington & Q. R. Co., 241 U. S. 533; Willcox v. Consolidated Gas Co., 212 U. S. 19; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Smyth v. Ames, 169 U. S. 466; Des Moines Gas Co. v. City of Des Moines, 238 U. S. 153; Darnell v. Edwards, 244 U. S. 570; Knoxville v. Knoxville Water Co., 212 U. S. 1; Detroit v. Detroit Citizens' S. R. Co., 186 U. S. 378-380; Cleveland v. Cleveland City R. R. Co., 194 U. S. 517; Ex parte Young, 209 U. S. 123.) Ledyard P. Hale, John J. McManus and Wilber W. Chambers for respondent. Under no circumstances now in existence is the plaintiff entitled to have a court adjudicate finally that chapter 227 of the Laws of 1907, which was admittedly constitutional when it was adopted and which has admittedly remained constitutional until some time during the year 1918, has suddenly become unconstitutional by reason of the increased costs of manufacturing and distributing gas due to war conditions. (People v. Budd, 117 N. Y. 1; Vil. of Saratoga Spgs. v. Saratoga G., etc., Co., 191 N. Y. 123; Matter of Quinby v. P. S. Comm., 223 N. Y. 244; Matter of International Ry. Co. v. Rann, 224 N. Y. 83; People ex rel. Mun. Gas Co. v. P. S. Comm., 224 N. Y. 156; Van Antwerp v. State, 218 N. Y. 422; Knoxville v. Water Co., 212 U. S. 1; Willcox v. Cons. Gas Co., 212 U. S. 19.) Arthur L. Andrews, Corporation Counsel (John J. McManus of counsel), for City of Albany, impleaded. The complaint does not state facts sufficient to constitute a cause of action for equitable relief. (Matter of Rebbecchi, 51 Misc. Rep. 403; San Diego L. & T. Co. v. National City, 174 U. S. 739; Knoxville v. Knoxville Water Co., 212 U. S. 1; Willcox v. Cons. Gas Co., 212 U. S. 19.) The complaint is fatally defective in that it fails to show or allege that the rate fixed by chapter 227 of the Laws |