202 A.D. 308 | N.Y. App. Div. | 1922
The question presented by this appeal is whether the local and special statutes relating to the construction, maintenance and regulation of subways to carry electrical conductors and wires of the electric light companies in the city of New York were repealed, or so much thereof as gave the right to revise the rentals to be charged, were repealed, and power vested in the Public Service Commission. A somewhat extended review of the statutes would seem to be necessary to a proper consideration of the subject.
Prior to 1884 the telegraph, telephone and electric light companies had franchise rights to carry their wires upon poles placed in the streets of the city of New York. This method of transmission of electric current was deemed dangerous to the safety of pedestrians and those engaged in the usual street traffic, and a plan was devised for the construction of underground subways in which these wires could be placed. Statutes were enacted
The contract entered into between the commissioners of electrical subways and the Consolidated Company, which was ratified by the Legislature, so far as material to this inquiry, was as follows: The Consolidated Company was to provide, build, equip, maintain and operate the subways therein mentioned; the said company to fix a fair scale of rents to be charged according to the kind of conductors and the amount of space required therefor which was to be at the same rate to all occupants making a like use of said subways, but the scale of rentals or any charges fixed or made by the said company was to be at all times subject to the control, modifica
After a large number of miles of the subways had been completed, the Consolidated Company fixed a scale of rentals, and the electric light companies hired space, but after a short time refused to pay the rent, and on being threatened with eviction from the subways, the Brush Electric Light Company brought an action claiming the rental charged by the Consolidated Company was unreasonable and unjust, and asked to have a fair scale of rentals determined by the court, and for an injunction. The court denied the motion for an injunction pendente lite, and on appeal the court, among other reasons for affirmance, said: “ If any harsh or unfair contract was insisted upon, under the circumstances, by the defendant, the
By chapter 716 of the Laws of 1887 it was provided that from and after the passage of said act and until the 1st day of November, 1890, the board of commissioners of electrical subways, together with the mayor of the city of New York, were constituted the board of electrical control, and the act further provided: “All the powers and duties conferred or imposed by the said act chapter four hundred and ninety-nine of the laws of eighteen hundred and eighty-five, upon the commissioners appointed thereunder in and for the city of New York, and all the powers and duties heretofore by any law conferred or imposed upon the local authorities of said city, or any of them, in respect to or affecting the placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits or subways for electrical conductors in said city are hereby transferred to and conferred and imposed upon, and shall hereafter be exclusively exercised and performed by the said board of electrical control, constituted as provided in this act, and its successors as hereinafter provided.”
The term of office of the board of electrical control was extended from time to time, and the rights, powers and duties vested or existing in said board of' electrical control were continued during such extended period. (Laws of 1890, chap. 550; Laws of 1891, chap. 383; Laws of 1892, chap. 263; Laws of 1893, chap. 396; Laws of 1894, chap. 207; Laws of 1897, chap. 710.) By the Greater New York charter (Laws of 1897, chap. 378, §§ 581-588) the board of electrical control was abolished, and all the powers and duties thereof were conferred and imposed upon the city of New York and, as a matter of administration, were devolved upon the commissioner of public buildings, lighting and supplies. In the amended Greater New York charter (Laws of 1901, chap. 466, §§ 525-531) the powers were conferred upon the city of New York, to be exercised in some
On January 21, 1922, the mayor of the city of New York received a certified copy of an order of the Public Service Commission of the State of New York, entitled “ Matter of rates of Consolidated Telegraph and Electrical Subway Company for use of conduits in the City of New York,” ordering, on its own motion, that a nearing be had by said Commission, as to the rates, charges and classification of service of the Consolidated Telegraph and Electrical Subway Company for the use of conduits, ducts, etc., to the end that the Commission shall prescribe just and reasonable rates, charges and classifications to be there in force for the service to be furnished by such corporation, and the just and reasonable acts and regulations to be done and observed by such corporation relating thereto. The corporation counsel of the city of New York obtained an order prohibiting the said Commission from proceeding in the matter. From that order this appeal is taken.
The sole question to be determined is, whether the Public Service Commission has jurisdiction of the subject-matter.
The Public Service Commission was established for the purpose of regulating corporations who rendered service to the public for which they were entitled to charge, that they might be required to render adequate service for a reasonable compensation. This was the fundamental purpose of the law, and the various provisions of the law establishing the Commission had this object in view. As will appear from the consideration of the legislation with respect to the electrical subways in the city of New York, there was no purpose of serving the public for which the public was required to pay. Certain corporations were transmitting electric current by means of overhead wires on the city streets, by right of franchises. This created a dangerous condition, especially such as were used for the transmission of high power currents for electric light, heat and power. The removal of the poles from the street and placing the wires underground had no relation to the service of the companies to their patrons, nor to the rate of charge for such service, it was not an exercise of the regulatory power of the State over public service corporations. It was an exercise of the power and duty of the State as keeper of the highways to render them safe and convenient for the public use for which they were intended. When the acts above referred to were passed and the subways were completed, the companies had no right longer to maintain their poles and wires above the street. They were there without authority and
The attorney for the Commission argues that because the definition in the Public Service Commission Law of the words “ electrical corporation ” includes a corporation owning, operating or managing any electric plant, and among the facilities which go to make up an “ electric plant ” as defined in the law, are included conduits and ducts for holding or carrying conductors used or to be used for the transmission of electricity for light, heat or power, and the Commission is given the supervision of electrical corporations and can prescribe the rates that they can charge the public for their service,
The appellants argue that the special local acts providing for the construction and regulation of the electrical subways were repealed by implication by the enactment of the Public Service Commission Law, a general statute dealing, as they claim, with the same subject.
The powers conferred on the board of electrical control by the earlier statutes have now been devolved upon the city of New York and its officers and are embodied in the Greater New York charter. Whatever power existed in the board of electrical control to modify or revise the rentals charged by the Consolidated Company, is by the charter vested in city officials. In People ex rel. New York, N. H. & H. R. R. Co. v. Willcox (200 N. Y. 423, 429) the Public Service Commission attempted to exercise a power apparently within its jurisdiction, but which was by the Greater New York charter vested in the board of health. The court held that the power vested in the board of health was exclusive and the charter provisions were not repealed or affected by the Public Service Commissions Law, and the court used this language, which is pertinent to the present consideration: “ There is no question but what the authority and power to act conferred upon the board of health by the city charter were ample for the purposes intended and declared. To find them withdrawn as against a railroad corporation there should be very precise language of repeal, or such apparent
Repeals by implication are not favored and will not be indulged in if there is any other reasonable construction. In my opinion there is no conflict in the statutes; both may stand and be operative without repugnance to each other, or giving rise to any conflict of authority. If the Legislature had intended to withdraw the power from the local authorities and vest it in the Public Service Commission, it would have done so by direct enactment, as it did by abolishing the Rapid Transit Commission and expressly conferring its powers and duties upon the Public Service Commission. The Commission was given extensive powers, but they should not be extended by implication beyond what may be necessary for their just and reasonable execution. (People ex rel. New York, N. H. & H. R. R. Co. v. Willcox, supra.) “ The Commission, as an extraordinary tribunal of the State, must have the power herein exercised conferred by a statute in language free from doubt. The power is not to be taken by implication; it must be given by language which admits of no other reasonable construction.” (Siler v. Louisville & Nashville R. R. Co., 213 U. S. 175, 194.) If there is doubt whether the power is given, the Commission should not assume to act; but if it seems appropriate that the Commission should have the power, the Legislature should be asked to give it.
In my opinion the subject-matter of the proceeding instituted by the Commission was not within its jurisdiction, and the order should be affirmed, with costs.
Clarke, P. J., Laughlin, Dowling and Smith, JJ., concur.
Order affirmed, with costs.
See Pub. Serv. Comm. Law, § 2, subds. 12,13; Id. § 66, as amd. by Laws of 1913, chap. 504; Laws of 1920, chaps. 540, 542, and Laws of 1921, chap. 134.— [Rep.