191 A.D. 737 | N.Y. App. Div. | 1920
The city of New York has no power or authority to operate bus or stage lines in its streets unless it be found in a grant from the People, represented in the Legislature. Its charter and other general and specific laws applicable to it are the measure of its powers and duties. Any act not authorized by such laws is ultra vires of it and a usurpation. The city, which is a municipal corporation, is a creature of the law. The law which created it defines its powers and duties. It has no more right to act in excess of the powers granted it than has a private corporation. A more liberal method of interpretation may be applied by the courts to powers granted a municipality for public purposes than to those granted to private corporations; but when a question arises whether a corporate act, either of a municipal or a private corporation, is beyond its powers, the answer must be sought in the statutes, which constitute its charter.
The statutes of the State will be searched in vain for any grant of power, express or implied, to the city of New York to operate bus or stage lines such as those we are now considering. And, further, section 1458 of the charter of the city
The corporation counsel contends that the city operation of stage lines is authorized by the so-called Home Rule Act (General City Law, art. 2-A, as added by Laws of 1913, chap. 247), and, if not, is justified as an emergency measure. These suggestions, elaborately briefed and earnestly argued, demand our careful consideration.
The Home Rule Act, as found in article 2-A of the General City Law, contains a general grant of powers (§ 19)
The “ local affairs ” which the Home Rule Act authorizes the city to regulate, manage and control, are affairs within the jurisdiction of the city by the law of its being. The words “ local affairs ” are so indefinite in their meaning that they will probably occasion much litigation, and many judicial opinions will be written on their construction with reference to conditions that may arise. It would be futile to attempt a definition of what constitutes “ local affairs ” within the
The act (§ 20)
We cannot close our eyes to the far-reaching nature of the argument of the corporation counsel. If the Home Rule Act authorizes municipal operation of common carrier lines, it is difficult to see any limit to its scope. The city could do whatever its existing officers thought was for the general welfare. The line of argument that the Home Rule Act empowers the city to operate stage lines of motor vehicles in order to promote the welfare of the citizens, would with equal force apply to establishing municipal markets, municipal department stores, municipal drug stores, or any other enterprises which the officials in power conceived would be in the interest of public welfare. No such meaning can be given to the act. It must be interpreted consistently with the fundamental principle that the powers of corporations, both municipal and private, are such only as are granted expressly or by necessary implication in the laws which constitute the charter. From this use of words of indefinite import, like “ general welfare,” defined to include “ the promotion of education, art, beauty, charity, amusement, recreation, health, safety, comfort and convenience ” (Home Rule Act, § 21),
The appellant contends that the maintenance of the bus lines is justified by emergency, and the inadequacy of the service of the street railway fines is put forward as creating the emergency. The defendant was authorized by the board of estimate and apportionment to establish these fines last fall, and the buses are still running on the streets. The word “ emergency ” is defined as a sudden or unexpected occurrence or condition calling for immediate action. This can hardly be applied to a permanent condition of inadequacy of service, and it is plainly to be seen that there is no emergency which justifies the continued operation of the stage fines. It is not necessary to decide whether any sudden or unexpected occurrence would justify the city in the temporary use of buses or stages to meet an emergency. That is not the question before us. We are considering the installation, maintenance and continued operation of buses upon established routes. The rule justifying action by a' municipality under emergency is of limited application. An emergency may justify the omission of prescribed conditions to the exercise of municipal power. This doctrine rests on the reasoning that the Legislature, in granting the power and prescribing methods of and conditions to its exercise, could not have intended such conditions and methods to apply to cases where it is impossible to meet them. The important point is that the municipality has the power; the method of its exercise is a secondary consideration. And in times of stressing emergency, when prompt action is required for the public welfare, it is better that methods and conditions be unfulfilled, than that the municipality should fail to act. (North River Electric Co. v. New York, 48 App. Div. 14.) But the grant of power to the city is not changed by an emergency, nor can it authorize acts that are entirely outside the chartered purpose.
If the welfare and convenience of the citizens require additional accommodations for transit such as would be furnished by established stage routes, there is a legal way to accomplish the result. The city has power to grant a franchise, subject to the determination of its necessity and convenience. But the city has no power of municipal operation; nor has it the right to authorize others so to use the streets without observing the conditions to a legal and regular grant of a franchise.
The plaintiff plainly suffers a special injury from the competition of these stage lines and from the added obstruction to the operation of its cars under its franchise. Even if the purpose of establishing the lines is not to injure the plaintiff in the exercise of its legal rights, it has that effect. Moreover, no bus line can be established in streets occupied by the plaintiff unless a certificate of convenience and necessity be
Whether the plaintiff has failed in fulfilling the obligations of its franchise has nothing to do with the' question now before us. If it has, the law affords a remedy. The orderly processes of the law are better and probably more effective than an attempt at correction by an unauthorized and illegal administrative act.
The order should be affirmed, with ten dollars costs and disbursements.
Jenks, P. J., Mills, Rich and Putnam, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.
Laws of 1901, eh. 466, § 1458, as added by Laws of 1913, eh. 769.— [Rep.
Amd. by Laws of 1905, chap. 629.— [Rep.
Added by Laws of 1913, chap. 247.—■ [Rep.
Added by Laws of 1913, chap. 247, as amd. by Laws of 1917, chap. 483.— [Rep.
Added by Laws of 1913, chap. 247, as amd. by Laws of 1917, chap. 483.— [Rep.
General City Law, § 21, as added by Laws of 1913, chap. 247.— [Rep.
Amd. by Laws of 1905, chap. 629.— [Rep.
Amd. by Laws of 1905, chap. 629, and Laws of 1914, chap. 467.— [Rep.
Added by Laws of 1913, chap. 495, as amd. by Laws of 1915, chap. 667.— [Rep.
Added by Laws of 1913, chap. 769.—• [Rep.
Added by Laws of 1915, chap. 667, as amd. by Laws of 1919, chap. 307. — [Rep.
See Public Serv. Comm. Law, § 53, and antecedent statutes.—■ [Rep.