262 N.Y. 39 | NY | 1933
April 25, 1923, the Public Service Commission issued to F. Clay Fisher a certificate of con
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., 255 N. Y. 232.) At the time of the issue of the certificates in the case before us, no statute conferred jurisdiction upon the Public Service Commission to attach conditions to a certificate of convenience and necessity. (Transp. Corp. Law, §§ 25, 26.) This body possesses no implied power. (Siler v. L. & N. R. R. Co., 213 U. S. 175; City of New York v. Inter-
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
The order of the Appellate Division should be reversed and the proceeding dismissed, with costs in this court and in the Appellate Division. (See 262 N. Y. 632.)
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.