118 N.Y.S. 248 | N.Y. App. Div. | 1909
Lead Opinion
The relator was organized as a street surface railroad company to construct a street surface railroad on Long Island, extending to the city line. Its certificate of incorporation was filed on the 27th of February, 1903, and it complied with all the conditions and requirements of the laws of this State, and the State Board of Railroad Commissioners granted to the relator a certificate of public convenience and necessity, under section 59 of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545). On December 24,1908, the relator duly filed a certificate for the extension of its route from the city line through the borough of Queens, to and over the Qneensboro bridge, into the borough of Manhattan in the city of New York, under section 90 of the Railroad Law, and subsequently applied to-the board of estimate and apportionment of said city for the consent of the local authorities and for a contract with the city of New York for the construction, operation and maintenance of the extension of the relator’s road over the streets of the city of New York and the Qneensboro bridge, and on May 20, 1909, such consent was duly given and a contract duly executed between the city of New York and the relator, under which the relator was authorized to-construct, maintain and operate its railroad over its extended route on certain conditions therein specified and on making certain pay
The petition upon which the writ of certiorari was granted alleged that the terms and conditions upon which the consent of the city was. granted, provided for in the contract- between the relator and the city of H,ew York, were the most favorable to the city and the most stringent upon the relator that had ever been secured in the public - interest; that at the hearing before the defendants the necessity and convenience of the relator’s route was conceded, and there was no testimony or evidence of any kind denying or in any manner questioning such convenience or necessity, nor any testimony or evidence objecting to the terms- and conditions of such franchise rights or any thereof; that the reasons for the denial of the application of the relator appeared from the opinion of Commissioner Bassett, a copy of which is annexed to the petition, from which it appeared that the necessity and convenience for the public service of the construction of the route specified in the consent of the city and contract with the city is absolutely conceded, and that the same is directly decided in the relator’s favor, but that some of the terms and conditions prescribed by the local authorities of the city of Hew York for the protection of- the interests of the public do not meet with the "approval of a majority -of the Commission, and ' that the application of thq relator for permission and approval was, therefore, denied; that such denial was not based upon any testimony, oral or documentary, with respect to the terms or conditions
From the opinion of Commissioner Bassett, which was 'adopted by a majority of the Commission, the Commission found that the relator’s “ route is a trunk line admirably adapted to the development of a great territory within easy reach of the myriads who are now crowding Manhattan because they must live where they can have reasonable access to their work; ” that the Commission looks with unusual favor upon the proposed route of the relator; that under these circumstances the Commission would not think of withholding its prompt approval for the construction of the proposed railroad and the exercise by the 'relator of the franchise granted by the local authorities, if it were not compelled to do so by controlling considerations of public policy affecting the future welfare of the greater city; and these considerations were, that under the franchise granted by the local authorities the relator is put in a position of control for street railroad purposes over the only available thoroughfare between Long Island City and Jamaica for a period of fifty years, and no provision is made, by which the relator can be compelled to build the extensions necessary for the full development of the territory dependent upon this thoroughfare-as its needs may arise. The conditions that the local authorities had inserted in their contract with the relator are then criticised, and the Commission say : “ It should not be the aim of such a franchise to obtain the greatest possible payment to the city or impose the greatest possible burdens upon the company. To do these things is usually to prevent the company from rendering proper service to the people. In the case of the franchise now before us, I think that the financial burdens imposed upon the company might well be mitigated, and
It, therefore, appears that the Commission expressly determined that the public interest required the construction and operation of a railroad upon the route over, which the relator had acquired its franchise under the General Bail road Law and the consent of and contract with the city of Mew York, but it refused its “permission and approval ” for the construction of the extension of the relator’s railroad upon the ground that it considered that the conditions upon which the city had given its consent did not meet the approval of the Commission — thus, assuming the position of dictating to the local authorities the terms and conditions which they must impose in giving the consent of the city to the construction and operation of the railroad if there was to be a railroad. By section 18 of arti- ' ele 3 of the Constitution it is provided that “ no law shall authorize the construction or operation of a street railroad except upon the
The franchise to construct and operate a street railroad is granted by the Railroad Law and comes into existence when the provision of that law is complied with. The provision of section 18 of article 3 of the Constitution limits the power of. the Legislature in granting such a franchise, so that the law which grants it must require as a condition of the grant that the local authorities having control of the streets and highways upon which it is proposed to construct the railroad shall consent to its construction. It is obvious that the Legislature would have no power to dictate to the .local authorities the conditions upon which such a consent should be given. That question must be determined by the local authorities, and the condition that they impose must be complied with before the right to construct or operate the road comes into existence. The conditions under which a franchise shall be granted are to be determined by the Legislature. It only can grant the franchise, but it cannot grant a franchise for a street railroad except upon the condition that the consent of the local authorities shall “ be first obtained.”
We have now to consider the effect of the Public S.ervice Commissions Law (Laws of 1907, chap. 429) and the powers of the Public Service Commissions over the granting of a franchise for a street railroad. This act abolished the Board of Railroad Com mis-' sióners and other commissions and transferred all the powers and' duties of such board and commissions upon the commissions appointed under the provisions of that act. Such commissioners were State officers, and the act was a general one. (Gubner v. McClellan, 130 App. Div. 721.) By section 53 of the act it is provided that “Without first having obtained the permission and approval of the proper commission, no railroad corporation, street railroad corporation or common carrier shall begin the construction of a railroad or street railroad, or any extension thereof * * * ; nor, except as above provided in this section, shall any such corporation or common carrier exercise any franchise or right under any provision of the Railroad.Law, or of. any other law, not heretofore lawfully exercised, without first having obtained the permission and approval- of the proper commission. The commission within whose district such construction is to be made, or within whose district such franchise or right is to be exercised, shall have power to grant the' permission and approval herein specified whenever it shall after due hearing determine that such construction or such exercise of the franchise or privilege is necessary or convenient for the public service.”
It is quite clear that the Legislature did not intend to, as it could
There was thus presented to the Public Service Commission that single question. It was all they were authorized to determine, and upon the determination of that question depended the “ grant ” of the “ permission and approval.” It was a determination after a hearing and was in its nature judicial. The Public Service Commission has no right to arbitrarily reject an application because of the action of the local authorities in granting or refusing their consent. It was not constituted a court to hear an appeal from the determination of the local authorities as to conditions which it should impose on giving its consent to the construction or operation of the • proposed road. If the Public Service Commission determined that the construction of the railroad or the exercise of the franchise or privilege was necessary or convenient for the public service, it was then the duty of the Commission to grant their permission and approval.
As I understand the opinion of the majority of the commissioners and the return to the writ, the' Public Service Commission did determine that the construction and operation of this proposed railroad was both necessary and convenient for the public service. In
It follows that the determination of the Commission must be reversed ¡and the proceedings be remitted to the Commission with direction to grant the .application, with fifty dollars costs and disbursements to the relator.
McLaughlin, Laughlin and Clarke, JJ., concurred.
Concurrence Opinion
(concurring) :
I concur in reversing the determination .of the Commission in the present ease with directions to grant the application of the relator, but I think the Public Service Commission has a. broader ¡lower to withhold its permission and approval to the exercise of a franchise than is stated by Mr. Justice Ingraham in his opinion.
I do not think the Commission is absolutely bound to grant a certificate of approval and permission to build and operate a street 'railway in all eases where the public authorities have granted permission. Ability to serve the public by furnishing proper transportation is an element, which the Commission is required to take into consideration as well as necessity for the construction of-a railway. A transportation coloration which faces certain bankruptcy the moment it starts cannot properly serve the public. Reasonable prosperity is necessary to reasonable service. Such a corporation only cumbers the. ground and. ¡irevents another corporation froth occupying, the same field and giving proper service. In its eager
. Determination reversed and proceedings remitted as stated in opinion, with fifty dollars costs and disbursements to relator. Settle order on notice.