298 N.Y. 30 | NY | 1948
Petitioner, in 1927, obtained by license or grant from the County Judge of Suffolk County, under section
Respondents, trustees of Ocean Beach, adopted, on June 29, 1947, a resolution which, after a recital of preliminary proceedings and of reasons for the action, reads as follows: "That Fire Island Ferries, Incorporated, a corporation organized and existing under and by virtue of the Laws of the State of New York, having its principal office and place of business at Bay Shore, be and it hereby is given and granted the exclusive right or franchise to land and discharge and to accept and take on for passage, passengers, freight and baggage and all other merchandise and transportable matter within the corporate limits of the Village of Ocean Beach, and that said exclusive right or franchise shall commence on the 1st day of May, 1948, and continue for a period of ten years therefrom unless sooner terminated as provided in the franchise agreement to be executed and that the proper officers of the village be and they hereby are authorized and directed to prepare and negotiate a suitable franchise agreement between this village and Fire Island Ferries, Inc." Thus, respondent Fire Island Ferries, Inc., has gotten, or is about to get, from the village board *35 an exclusive right to land ferryboats and take on and discharge passengers and freight within the limits of the village. Petitioner brought this proceeding to have the June 29, 1947, resolution held illegal, alleging that it amounted to a ferry franchise which, according to petitioners, the village has no power to give, and that it was illegal, for another reason, also, in that it gave Fire Island Ferries, Inc., the sole use of the ferry dock and the sole right to touch anywhere in the village with a ferryboat. The answers of respondents point out that subdivision 66 of section 89 of the Village Law (to which we shall refer later) authorizes Ocean Beach and certain other villages to "provide" a ferry or ferries. It is the theory of respondents that the resolution does no more than so "provide", and that, having duly advertised for, and received, bids and after due deliberation and for sufficient reasons, having accepted the bid of respondent Fire Island Ferries, Inc., the village was in a position legally to make the contract. The answers and the proof show that petitioner was invited to bid but did not do so till long after the time for receiving bids had passed, at which late date its bid was refused consideration.
Special Term dismissed the petition on the merits, the Appellate Division unanimously affirmed, and we granted petitioner's motion for leave to appeal to this court.
The Justice at Special Term concluded that authority for the village to make this exclusive grant was found in subdivision 66 of section 89 of the Village Law which is in part as follows: "Ferries and ferry terminals. Any village which is disconnected geographically by water from the mainland of the state and which is not connected by any bridge or viaduct wholly or partly within its corporate limits with such mainland, may acquire, by purchase, lease, charter, new construction or otherwise, and provide, maintain and operate a ferry or ferries, together with the necessary boats and terminals therefor, for the transportation of passengers, express matter and freight between said village and the adjacent mainland of the state, during the whole or such portion or portions of the year, and may charge such rates therefor, as it may deem advisable, and each such village shall have the right to spend money for said purposes or any of them." *36
The use of the word "provide", held Special Term, showed a plain legislative intent to authorize villages like Ocean Beach not only to own and operate ferries, if they so desired, but to arrange and contract for the operation of ferries by others. The court pointed out that the "Notice for Bidders" sent out by Ocean Beach in February, 1947, stated a requirement that the successful bidder "must procure license to operate from County Court of Suffolk County." Thus, it was held below, the village, in passing the resolution, did no more than it was empowered to do by subdivision 66 above quoted, and by subdivision 39 of section 89 of the Village Law, which latter subdivision, in general terms, gives power to village trustees to grant rights and franchises as to the use of public places. We cannot read either subdivision as empowering this village to make exclusive grants of ferry privileges within the village.
The privilege of establishing and operating a ferry is a franchise, the political power to grant which rests primarily in the State Legislature (3 Kent's Commentaries [6th ed.], p. 458;Benson v. Mayor of City of N.Y., 10 Barb. 223, 233, 234;Milhau v. Sharp,
The remaining question is as to whether the resolution, though not within subdivision 66, is nonetheless valid. We do not decide whether or not this village may give to a ferry corporation the sole use of its ferry dock — first, because the character and status of that dock or ferryhouse is not adequately shown by the record; and second, because the resolution goes far beyond a lease of that wharf or waterside structure. Nor do we decide to what extent this village may, under existing laws, for reasons of safety or otherwise to protect itself and its residents and visitors, make rules as to the kind of vessels which may carry passengers to its shore, and as to their management, schedules, etc. We take the June 29, 1947, resolution as we find it. It directs the award to respondent Fire Island Ferries, Inc., of an exclusive right to land ferryboats anywhere on the shores of the village. If the resolution were to stand, the County Judge would be deprived of any real function as to ferries operating to the village. No statute cited to us empowers a village to grant such a monopoly, and statutes such as subdivisions 39 and 59 of section 89 of the Village Law are couched in language much too general to convey so large a grant of power. Finding no legal basis for the passage of the resolution, we hold it invalid.
The orders below should be reversed, with costs to the appellant in all courts, and the proceeding remitted to Special Term for further proceedings not inconsistent with this opinion.
LOUGHRAN, Ch. J., LEWIS, CONWAY, THACHER DYE and FULD, JJ., concur.
Orders reversed, etc. *38