198 A.D. 205 | N.Y. App. Div. | 1921
Lead Opinion
Chapter 134 of the Laws of 1921 amends chapter 48 of the Consolidated Laws (Laws of 1910, chap. 480), the Public Service Commissions Law.
“ There shall be a Transit Commission for cities containing a population of more than one million inhabitants, according to the last preceding Federal census or State enumeration, which shall possess the powers and duties hereinafter specified, and also all powers necessary or proper to enable it to carry out the purposes of this chapter. The Commission shall consist of three members to be appointed by the Governor, by and with the advice and consent of the Senate.”
Section 10 amends section 5 of such chapter, as theretofore amended, and provides that “ The jurisdiction, supervision, powers and duties of the Public Service Commission shall extend under this chapter : 1. To common carriers, railroads, street railroads and stage or omnibus lines or routes, and to the persons or corporations owning, leasing or operating the same, except as jurisdiction thereof is conferred by this chapter on the Transit Commission. 2. To the manufacture, sale or distribution of gas and electricity for light, heat or power, to gas plants and to electric plants and to the persons or corporations owning, leasing or operating the same. 3. To the manufacture, holding, distribution, transmission, sale or furnishing of steam for heat or power, to steam plants and to the persons or corporations owning, leasing or operating the same. 4. To every telephone line which lies wholly within the State of New York and that part within the State of New York of every telephone line which lies partly within and partly without the State of New York and to the persons or corporations owning, leasing or operating any such telephone line. 5. To every telegraph line which lies wholly within the State of New York and that part within the State of New York of every telegraph line which lies partly within and partly without the State of New York and to the persons or corporations owning, leasing or operating any such telegraph line. 6. To every stock yard within the State and to the stock yard company owning, leasing or operating the same, to the same extent and in respect to the same objects and purposes as such jurisdiction extends, under the provisions of this chapter, to depots, freight houses and shipping stations of a common carrier, including the duty of such stock yard com
Section 11 amends such chapter by inserting therein a new section, to be section 5a, to read as follows:
“ The jurisdiction, supervision, powers and duties of the Transit Commission shall extend under this chapter: 1. To railroads, street railroads and stage or omnibus lines or routes lying exclusively within a city containing a population of over one million inhabitants according to the last preceding Federal census or State enumeration; and to the persons or corporations owning, leasing or operating the same; 2. To street railroads any portion of whose lines lies within such city, and to the persons or corporations owning, leasing or operating the same; 3. To stage or omnibus lines or routes any portion of which lies within such city, and to the persons or corporations owning, operating or leasing the same; 4. To such portion of any railroad as lies within such city and is used for local service and not operated as part of a trunk line railroad, and to the persons or corporations owning, operating or leasing the same; 5. To any other railroads any portion of whose lines lies within such city, which are operated by a trunk line railroad principally for the local transportation of persons and property, and to the persons or corporations owning, operating or leasing the same; 6. To matters or subjects jurisdiction whereof is conferred on such Commission by article six of this chapter.”
Section 19 amends section 14 of such chapter as last amended by chapter 520 of the Laws of 1919 to read as follows:
“ * * * 2. The salaries of the Commissioners, secretary and counsel of the Transit Commission shall be audited and allowed by the State Comptroller, and paid monthly by the State Treasurer upon the order of the Comptroller out of the funds provided therefor. All other salaries and expenses of the Transit Commission shall be chargeable to the city in which such Commission has jurisdiction and shall be audited and paid as follows: The board of estimate and apportionment or other board or public body on which is imposed a duty, and in which is vested the power, of making appropriations*209 of public moneys for the purposes of the city government in such city shall, from time to time, on requisition duly made by the Transit Commission, appropriate such sum or sums of money as such Commission shall certify to be necessary to properly enable it to do and perform, or cause to be done and performed, the duties imposed upon it. Such appropriation shall be made forthwith upon presentation of such a requisition without revision or reduction and without the imposition of any conditions or limitations by such board or body, and such appropriation by it is hereby declared to be a ministerial act. If such board or body shall fail to appropriate such amount as such Transit Commission shall deem requisite and necessary, such Commission may apply to the Appellate Division of the Supreme Court in the First Judicial Department, on notice to such board or body, for an order requiring such board or body to make such appropriation. The city shall not be liable for any indebtedness incurred by such Commission in excess of such appropriation or appropriations. It shall be the duty of the comptroller or other chief fiscal officer of such city, after such appropriation shall have been duly made, to audit and pay the salaries and expenses of such Commission chargeable to the city, upon vouchers therefor. For the purpose of providing funds with which to pay the said sums, the comptroller or other chief financial officer of said city, is hereby authorized and directed to issue and sell revenue bonds of such city in anticipation of receipt of taxes and out of the proceeds of such bonds to make the payments in this section required to be made. The amount necessary to pay the principal and interest of such bonds shall be included in the estimates of moneys necessary to be raised by taxation to carry on the business of said city, and shall be made a part of the tax levy for the year next following the year in which such appropriations are made.”
Section 19a provides that subdivision 1 of section 16 of such chapter, as amended by chapter 528 of the Laws of 1920, is hereby amended to read as follows:
“ 1. All proceedings of each Commission and all documents and records in its possession shall be public records, and each Commission shall make an annual report, to the Legislature*210 on or before the second Monday of January in each year, which shall contain any information in the possession of the Commission which it shall deem of value to the Legislature and the People of the State.”
By subsequent provisions of the act of 1921 (amdg. Pub. Serv. Comm. Law, § 45 et seq.) each Commission was given general supervision of all common carriers, railroads, street railroads, railroad corporations and street railroad corporations subject to its jurisdiction as hereinbefore defined and shall have the power of inspection of physicial property and to conduct investigations or hearings, and shall have power to examine books, records, documents and papers, to investigate accidents and complaints and to determine the just and reasonable rates, fares and charges to be made.
The Transit Commission delivered to the board of estimate and apportionment a requisition for $368,895.70 under the provisions of chapter 134 of the Laws of 1921, “ which sum said Transit Commission hereby certifies is necessary to properly enable it to do and perform or cause to be done and performed for the period from April 25th to June 30th, 1921, the duties imposed upon said Commission by said law,” and also a similar requisition for the sum of $1,083,327, “ which sum said-Transit Commission hereby certifies is necessary to properly enable it to do and perform or cause to be done and performed for the six months ending December 31, 1921, the duties imposed upon said Commission by said law.” This requisition not having been honored by the board of estimate, and apportionment, the said Transit Commission applied to this court, on notice to such board, for an order requiring it to make such appropriations.
For many years the question of transportation of passengers has been a matter of legislative concern. So far as the peculiar problems presented by the physicial configuration of the old city of New York, located on along narrow island, necessitating a morning down and afternoon upflowing of the tide of travel, a board of inquiry investigation and plan was authorized as early as 1875. Finally the Rapid Transit Act and amendments thereto (Laws of 1891, chap. 4, as amd. by Laws of 1892, chaps. 102, 556; Laws of 1894, chaps. 528, 752, and Laws of 1895, chap. 519) were passed and their constitutionality came
Chapter 752 of the Laws of 1894 amended section 1 of chapter 4 of the Laws of 1891 as follows: “ In each city having over one million of inhabitants, according to the last preceding National or State census, there shall be a Board of Rapid Transit Railroad Commissioners in and for such city, which shall consist of the mayor of such city, the comptroller or other chief financial officer of such city, the president of the Chamber of Commerce of the State of New York, by virtue of his office, and the following named persons, to-wit: William Steinway, Seth Low, John Claflin, Alexander E. Orr and John H. Starin.”
It was further provided: “ Vacancies which may take place in the offices so held by the persons specifically named herein as such commissioners shall be filled by a majority vote of the remaining members of said board.”
That is, the Legislature itself appointed the commissioners.
The act of 1894 amended section 10 of the act of 1891 as follows : “ The board of estimate and apportionment or other board or public body on which is imposed the duty, and in which is vested the power, of making appropriations of public moneys for the purposes of the city government in any city in which it is proposed to construct such railway or railways shall, from time to time, on requisition duly made by the Board of Rapid Transit Railroad Commissioners, appropriate such sum or sums of money as may be requisite and necessary to properly enable it to do and perform, or cause to be done and performed, the duties herein prescribed, and to provide for the compensation of such Commissioners, and such appropriation shall be made forthwith upon presentation of a requisition from the Board of Rapid Transit Railroad Commissioners, which shall state the purposes for which such moneys are required by the said Board. In case the said board of estimate and apportionment or such other board or public body fail to appropriate such amount as the Board of Rapid Transit Railroad Commissioners deem requisite and necessary, the said Board of Rapid Transit Railroad Commissioners may apply to the General Term of the Supreme Court, in the department in which the railway is to be or has been constructed, on notice to the board of estimate
The principal question presented in Sun Publishing Assn. v. Mayor (supra) was whether the act violated the constitutional provision that no county, city, town or village shall “ be allowed to incur any indebtedness except for county, city, town or village purposes.” (Const. art. 8, § 10.) The courts held it did not, that the proposed road “ may properly be held to be ‘ for a city purpose.’ ”
Mr. Justice Barrett, writing for the Appellate Division upon the question raised as to the method of appointment of the commissioners •— after stating that “ the functions of these boards are strictly local. Their primary function is to consider and determine whether it is for the interest of the public, and of the city in which each is appointed, that a rapid transit railway should be established therein. (§ 4.) They act, in fact, for the particular city throughout. They acquire property for it. They sue in its name and on its behalf. They are even spoken of in the act as the city’s board of rapid transit commissioners (§ 34),” further said: “ The
“•1. The salaries of the Commissioners, the counsel to the Commission, and the secretary to the Commission in the First District shall be audited and allowed by the State Comptroller, and paid monthly by the State Treasurer upon the order of ■ the Comptroller out of the funds provided therefor. All other salaries and expenses of the Commission of the First District shall be audited and paid as follows: The board of estimate and apportionment of the city of New York, or other board or public body on which is imposed the duty and in which is vested the power of making appropriations of public moneys for the purposes of the city government shall, from time to time, on requisition duly made by the Public Service Commission of the First District, appropriate such sum or sums of money as may be requisite and necessary to enable it to do and perform, or cause to be done and performed, the duties in this or in any other act prescribed, and to provide for the expenses and the compensation of the employees of such Commission, and such appropriation shall be made forthwith upon presentation of a requisition from the said Commission, which shall state the purposes for which such moneys are required by it. In case the said board of estimate and apportionment, or such other board or public body, fail to appropriate such amount as the said Commission deems requisite and necessary, the said Commission may apply to the Appellate Division of the Supreme Court in the First Department, on notice to the board of estimate and apportionment or such*215 other board or public body aforesaid, to determine what amount shall be appropriated for the purposes so required and the decision of said Appellate Division shall be final and conclusive; and the city shall not be liable for any indebtedness incurred by the said Commission in excess of such appropriation or appropriations. It shall be the duty of the auditor and comptroller of said city, after such appropriation shall have been duly made, to audit and pay the proper expenses and compensation of the employees of said Commission other than its counsel and secretary, upon vouchers therefor, to be furnished by the said Commission, which payments shall be made in like manner as payments are now made by the auditor, comptroller or other public officers of claims against and demands upon such city; and for the purpose of providing funds with which to pay the said sums, the comptroller or other chief financial officer of said city, is hereby authorized and directed to issue and sel revenue bonds of such city in anticipation of receipt of taxes and out of the proceeds of such bonds to make the payments in this section required to be made. The amount necessary to pay the principal and interest of such bonds shall be included in the estimates of moneys necessary to be raised by taxation to carry on the business of said city, and shall be made a part of the tax levy for the year next following the year in which such appropriations are made.”
Gubner v. McClellan (130 App. Div. 716) was an action brought to restrain the city authorities from paying to any person the moneys required to be paid by section 14 of this act upon the ground that any such payments would be illegal official-acts and a waste of the funds of the city. The first point argued was that the act offended section 16 of article 3 of the State Constitution, “No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title.” This court, after calling attention to sections 15 and 16 of article 3 and to section 2 of article 12 of the Constitution requiring special city bills to be sent to the city affected before final action thereon, said: “ While undoubtedly a general bill, yet, in pursuance of the legislative policy to send to the cities affected for greater precaution all bills which, from any point of view, might be claimed
The opinion proceeds: “ To conclude, the act is general, not private or local, it contains no matter not germane to the title thereof, the provision for payment of the expenses
In 1910 by chapter 480 the Legislature revised, amended and re-enacted chapter 429 of the Laws of 1907 as “ Chapter 48 of the Consolidated Laws — The Public Service Commissions Law.” This act was not sent to the city for its action thereon, the Legislature apparently concurring in the opinion of this court, handed down the year previous, that the act was a general act and did not require to be so transmitted.
One of the objections urged against the validity of the act now under consideration, chapter 134 of the Laws of 1921, is that it was not sent to the mayor for action thereon prior to its final passage in violation of the provision of section 2 of article 12 of the Constitution, claiming that it is a special city bill. Upon the printed copy of the act submitted to this court and certified to be correct by the Secretary of State, is the heading “ General — All Counties.”
It is entitled: “ An Act to amend the Public Service Commissions Law, in relation to creating the Public Service Commission and the Transit Commission, defining the jurisdiction, powers and duties of such Commissions, and abolishing the Public Service Commission of the First District, the Public Service Commission of the Second District and the office of Transit Construction Commissioner.”
It contains seventy-nine sections amending many sections of the prior law, and adding certain new sections. As this court has held in the Gubner Case (supra) that the Public Service Commissions Law is general it must follow that acts amending it are also general. It is interesting to note that chapter 263 of the Laws of 1919 amending the Public Service Commissions Law in relation to reorganizing the Commission of the First District by reducing said Commission to one member to be appointed by the Governor, and providing for three deputy commissioners, and making other changes, was approved by Governor Smith without having been trans
It seems to me clear that it is too late after fourteen years to revive these alleged rights of the Board of Rapid Transit Railroad Commissioners whose duties were transferred, as mere detail of the entirely new venture in governmental control of public utilities in this State, by the creation of the new office of Public Service Commissioner.
The mandatory provisions for the payment of salaries and expenses of the employees of the Commission is assailed. The charter and the statutes affecting the city are crowded with mandatory provisions. The city is but a subdivision of the State, the Legislature possessing full sovereign power except as limited by the express terms of the Constitution. We have seen that this provision is but an apportionment of
In Matter of Quinby v. Public Service Commission (223 N. Y. 244) the court said: “In the absence of clear and definite language conferring without ambiguity jurisdiction upon the Public Service Commission to increase rates of fare agreed upon by the street railroad and the local authorities we should not unnecessarily hold that the Legislature has intended to delegate any of its powers in the matter, whatever its powers may be. * * * The authority of the Commission to regulate rates in such cases and thus to extinguish an undoubted power of the local authorities should fairly appear before it is assumed to exist.”
In Matter of International R. Co. v. Public Serv. Comm. (226 N. Y. 474) the court said: “ The power to regulate rates is the power to increase them if inadequate just as truly' as it is the power to reduce them if excessive. * * * Nor is there anything in the attempted distinction between regu
In People ex rel. Village of South Glens Falls v. Public Serv. Comm. (225 N. Y. 216) Judge Crane, writing for the court, alluding to the Quinby case, said: “ The question as to the power of the Legislature to deal with such rates was specifically reserved and not decided. The opinion clearly intimated that such power did exist.” Judge McLaughlin, concurring, said: “ The right to regulate rates of public service, corporations is a governmental power vested in the State in its sovereign capacity. It may be exercised by the State, or through a commission appointed by it; or it may delegate such power to a municipality. The delegation of this power, however, is never implied since the effect is to extinguish, no matter for how short a time, pro tanto a power of the State. Therefore, when delegated its existence and the authority to make it must clearly and unmistakably appear. * * * Every doubt must be resolved in favor of the continuance of the power in the State.”
Short title was changed in 1921 to Public Service Commission Law.— [Rep.
See Laws of 1916, chap. 422, amdg. Consol. Laws, chap. 48 (Laws of 1910, chap. 480), § 3. See, also, Laws of 1912, chap. 648, § 11.—[Rep.
Dissenting Opinion
in a dissenting opinion, construed certain sections of the Railroad Law in connection with the Public Service Commissions Law as conferring the disputed power upon the Public Service Commission so far as the particular railway under consideration was concerned. He said: “The State, acting through the Legislature, has, by virtue of its police power, the right to regulate the fare to be charged by a street surface railroad corporation. This right or power, whichever it may be called, is an attribute of the State sovereignty. It is something which the State cannot sell or give away, either in whole or in part. It is a power which underlies the Constitution and is predicated upon the law of necessity. It belongs to the State because it is sovereign, and is a necessity for the existence of the government. It is something the State cannot surrender because to do so would be to surrender a sovereign power. It is as enduring and indestructible as the State itself. (People v. Adirondack Ry. Co., 160 N. Y. 225.) All contracts and property rights are held subject to the fair exercise of this power which embraces, among other things, regulations designed to promote public
Concurrence Opinion
while he concurred with the majority in upholding the ruling in the Quinby case, said: “ I do not say that it is beyond the power of the Legislature, either directly or through a commission, to abrogate or modify the conditions of a franchise. If such a question were here, I might agree in that respect with Judge McLaughlin.” Judge Elkus concurred in the memorandum of Judge Cardozo, Judge Chase and Judge Collin concurred with Judge McLaughlin and Judge Andrews also concurred in so much of the opinion of Judge McLaughlin as holds that the Legislature has constitutional power to modify rates fixed in a local franchise.
It thus appears that four of the learned judges of the Court of Appeals absolutely and two inferentially sustain the constitutionál power of the Legislature to modify rates fixed in local franchises. With the plain intimations contained in the former decisions cited and the direct ruling and invitation to the Legislature to amend the law if it intended to exercise the power, at its next session it passed the act now under consideration which in “ clear and definite language confers power upon the Commission to increase rates above the amounts fixed in the grants or consents.”
In People ex rel. City of New York v. Nixon (229 N. Y. 356) Judge Cardozo, in alluding to theQuinby and other like cases, said: “We did not hold that there was any constitutional restraint upon the grant of such a power. Restraint under the
It seems to us that the question is now settled beyond reasonable doubt.
Article 6 of the Public Service Commission Law (as added by Laws of 1921, chap. 134), being sections 105 to 111, inclusive, thereof, is also attacked. It provides in brief that after making the necessary studies and investigation the Transit Commission shall prepare a plan of readjustment for the relief of the emergency declared to exist, and for the improvement of transit in the city. Upon the completion of the plan and before adopting the same it shall hold a public hearing, shall transmit a copy to the local authorities of the city and to each of the railroads included therein, with a request for the statement of the views of such local authority and such railroad companies. There are provisions for full and due hearings and opportunity for approval of the complete plan and contracts, and on failure of the city authorities to approve, further public hearings are to be had and if changes are made again the plan and contracts are to be submitted to the city for its approval, and if there is final disapproval the Commission is authorized to execute and deliver such contract or contracts in the name and behalf of the city. The respondents again invoke the contract clause of the Federal Constitution (Art. 1, § 10, subd. 1) alleging that the proposed action would result in violation of their existing contract rights.
The question here presented is not now ripe for decision. No action has been taken. No plan has been prepared or submitted. No contracts have been drawn. It is a matter of common knowledge that intra mural transportation matters are in a deplorable condition. It may be that the plan devised will be so sound, so safe, so .conservative, so fair and reasonable, that it will be willingly accepted by all parties. There is no question but that the city has the power to approve of modifications of existing contracts. The existing contracts between the city and the Interborough and Brooklyn Union Elevated Railroad Companies came under judicial scrutiny in Admiral Realty Co. v. City of New York (206 N. Y.
The respondents have argued almost every conceivable question that could be raised in opposition to this application. Many have no relevancy at the present time. We have considered the vital ones and reach the conclusion that the applications should be granted.
Dowling, Smith, Page and Greenbaum, JJ., concur.
Applications granted. Settle orders on notice.
