108 N.E. 847 | NY | 1915
This proceeding was instituted to compel the defendant, a street railroad corporation, to remove its tracks from the side to the center of East State street in the city of Olean in accordance with a resolution of the common council of said city. When the defendant's road was constructed the part of the street in question *528
was outside the limits of the city, and in the town of Olean. The consent of the town highway commissioner, granted pursuant to the statute (now section
A railroad derives its franchise from the state. The statute, now section
No doubt, to promote the public convenience the legislature may compel the defendant to relocate its tracks. (People ex rel.City of Geneva v. G.W., S.F. C.L. Traction Co.,
Undoubtedly municipal corporations possess implied, as well as express, powers. (Village of Carthage v. Frederick,
Several provisions of the charter of the city of Olean (Chapter 478, Laws of 1893) are called to our attention. But we think the power in question is to be implied, if at all, from the power "to discontinue, lay out, widen, open, alter, change the grade or otherwise improve roads, avenues, streets," etc. The power to change the grade of a street may fairly be said to involve the power to compel a street railroad to lower or raise its tracks to conform to the new grade; but the power to require a relocation of the tracks does not appear to be necessary to the exercise of the power to alter and improve streets. Certainly the necessity is not so plain that it can with any certainty be said to have been contemplated by the legislature.
We do not say with respect to the question now involved, *530
as was said with respect to the regulation of telephone and telegraph companies in Village of Carthage v. Central N YTel. Telegraph Co. (
The orders should be reversed, with costs in the Appellate Division and in this court, and the motion denied, with ten dollars costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN, HOGAN and CARDOZO, JJ., concur.
Orders reversed, etc. *531