116 Misc. 591 | N.Y. Sup. Ct. | 1921
This is an application for a peremptory writ of mandamus to compel the city council of the city of Newburgh to issue a consent to the relator, Daniel Gr. Aber, to operate a bus line between said city and the city of Middletown, in Orange county.
The city council adopted an ordinance March 14, 1921, specifying the terms upon which such applications would be granted. The relator made applica
The applicant contends that the council, in refusing the consent applied for, is usurping the power of the state public service commission, in passing upon the question as to the public necessity for the proposed bus line, and that it has no power to refuse the consent; that its powers are limited to fixing the terms upon which the consent should be granted.
The precise question raised does not seem to have been passed upon by the courts of this state. I am informed, however, that the attorney-general of the state has recently delivered an opinion upon a similar question, arising in the city of Kingston, to the effect that the city has only the power to prescribe the terms upon which the application should be granted, and that the questions of public necessity and convenience should be determined by the public service commission.
The United States District 'Court, District of Connecticut, recently said in the case of Lane v. Whitaker, N. Y. L. J. Sept. 24,1921: ‘1 The citizen has the right of travel upon the highways and may transport his property thereon in the ordinary course of life and business, but this is a very different thing than permitting the highway to be used for commercial purposes, as a place of business, for private gain, in running jitney buses. The right, common to all, to the use of highways, is the ordinary use made thereof, but where, for private gain, a jitney owner wants a special and extraordinary benefit from the highway,
It will be noted that under this statute no consent of the local authorities is required and that the legislature delegated the entire question to the public utilities commission. Whereas in this state the legislature also requires the applicant to obtain the consent of the local authorities.
The Transportation Corporations Law, section 26, enumerates the conditions which the city council may prescribe, providing in part as follows: “ No bus
It is evident that the city council in refusing the relator’s application were of the opinion that they had the power and authority to refuse the application if, in their judgment, public necessity did not require the bus line, or if it were not for the best interests of the city and its inhabitants. The attorney-general of the state, however, in his opinion holds to the contrary.
I do not find any case reported in this state or any other state in which a city refused an application of this kind. It has evidently been considered for the best interests of the cities to encourage transportation facilities and to grant applications of this kind because such means of transportation are generally for the best interests of the people. In many of the reported cases cities have permitted the operation of bus lines without requiring the certificate of the public service commission required by the statute.
It is true that the legislature, in the statute above quoted, as well as in the charter of the city of New-burgh, granted to the city the power to regulate the use of streets by persons and vehicles and to grant franchises or rights to use the streets, but I fitid no
It is true that the state has the right to regulate! the use of streets and even to refuse their use when public necessity and convenience so requires, but the power to make such refusal seems to be vested in the public service commission only.
The mandamus applied for should be granted, without costs, however, but the relator’s legal disbursements should be paid by the -city.
Ordered accordingly.