186 N.E. 195 | NY | 1933
April 25, 1923, the Public Service Commission issued to F. Clay Fisher a certificate of convenience *42
and necessity for the operation of a motor bus line between Suffern, Nyack and Sparkill in Rockland county. It was issued on the express condition that it was terminable upon revocation by the Commission for sufficient cause. Such right, if any, as may have vested in Fisher by virtue of this certificate relating to that portion of the route between Nyack and Sparkill was assigned by him, with the Commission's consent, to the Rockland Transit Corporation, also upon the express condition that it might be revoked by the Commission for failure to operate or for other sufficient cause. A second assignment was made by that corporation to Northern Valley Bus Line, Inc. To the Commission's consent to this assignment was also attached the express condition that it was subject to all the conditions in the Fisher grant and that for failure to operate or other sufficient cause a rehearing might be had and the certificate revoked by the Commission. On April 28, 1926, the Commission issued another certificate of convenience and necessity directly to Northern Valley Bus Line, Inc., for operation between South Nyack, Sparkill and the boundary line of New Jersey. Like the certificate issued to Fisher, it was granted on the express conditions that the grantee would comply with all the rules, regulations and orders of the Commission respecting equipment and service, that the certificate should not be leased or assigned without the consent of the Commission and that in case of violation of any of the conditions or for failure to operate or for other sufficient cause, a rehearing, upon the application of any person aggrieved, might be had and the certificate revoked. Thus, in the event that these certificates were valid, the Northern Valley Bus Line, Inc., a New York corporation, the name of which has been changed to Public Service Interstate Transportation Co., Inc., the respondent herein, acquired the right, with the consent of the local authorities of the municipalities on the route described in the certificates, *43
to operate from Nyack to the New Jersey boundary. It did so operate until August 14, 1928. Subsequent to that date the route was operated by Public Service Co-ordinated Transport, a New Jersey corporation. Respondent herein discontinued operation, sold its buses and discharged its employees. On July 25, 1929, the Commission issued to Tappan and Nyack Bus, Inc., one of the appellants herein, a certificate of convenience and necessity over the same route, and by orders dated March 6, 1930, after finding the facts on a rehearing upon application of Tappan and Nyack Bus, Inc., as a party aggrieved, the Commission revoked the certificate of April 25, 1923, in so far as it applied to respondent and also the certificate of April 28, 1926. Since there is evidence supporting the findings, the orders of revocation are neither arbitrary nor unreasonable on the facts, and the courts may not interfere with the exercise of the Commission's discretion on the facts and substitute its own judgment. (Matter of Public Service Interstate Transp. Co. v.Pub. Serv. Comm.,
The important question of law argued before us concerns jurisdiction by the Commission, prior to the enactment expressly conferring power (Public Service Law; Cons. Laws, ch. 48, § 63-d, subd. 4, as added by Laws of 1931, ch. 531), to revoke certificates previously issued by it.
Local authorities of a municipality are empowered by statute to attach certain conditions to their consent to the use of its streets (Transportation Corporations Law; Cons. Laws, ch. 63, § 66), and for breach of these conditions they may revoke their consent. (People ex rel. Village of Chateaugay v. Pub. Serv.Comm.,
The mere fact that unauthorized conditions are attached to a certificate does not require the conclusion that the certificate is void. The effect of such conditions as bearing upon the purpose of the certificate and the improbability of its issue without conditions must, however, be considered. When all the language of the declaration is clearly indicative of an intent to withhold or cancel a certificate unless the conditions coupled with its grant shall be accepted and compliance had with them in the distant future, then the certificate as a whole must be disregarded. "A court is not justified in eliminating and disregarding illegal provisions of an *45
order unless it is apparent that the provisons which are legal in form are not connected with and affected by those which are illegal." (People ex rel. N.Y.C. H.R.R.R. Co. v. Pub. Serv.Comm.,
The order of the Appellate Division should be reversed and the proceeding dismissed, with costs in this court and in the Appellate Division. (See
POUND, Ch. J., CRANE and CROUCH, JJ., concur with O'BRIEN, J.; LEHMAN and KELLOGG, JJ., concur in result; HUBBS, J., not sitting.
Order reversed, etc. *46