174 N.E. 637 | NY | 1931
On the petition of the Eastern New York Electric and Gas Company, the Public Service Commission on March 14, 1929, made an order approving the construction by the petitioner of an electric plant for furnishing to the public electricity for light, heat and power in the village of Chateaugay, Franklin county, and permitting and approving the exercise of the rights and privileges conferred by a franchise which had been granted by the Board of Trustees of the village to J.O. Smith, the petitioner's assignor, on March 28, 1899.
The village of Chateaugay, which had opposed the granting of the certificate, sued out an order of certiorari to review the order of the Commission as well as a later order denying a rehearing.
The New York State Electric and Gas Corporation, the successor to the Eastern New York Electric and Gas Company, intervened by leave of court as a party to the proceeding.
The Appellate Division upon the return to the order of certiorari annulled the determination of the Commission upon two grounds: First, that by a judgment in a former action between the village and the lighting company it had been adjudged that the so-called Smith franchise was non-existent and void; andsecond, that irrespective of the effect of the former adjudication, the franchise was without validity for non-acceptance and non-user.
Upon this appeal by the lighting company the two objections to the franchise will be considered in succession.
(1) We are unable to yield assent to the conclusion of the court below that the invalidity of the Smith franchise is resjudicata.
In 1902 the village of Chateaugay granted to a corporation, the Chasm Power Company, a franchise to occupy the streets and supply electric light and power for a period of twenty years. Upon the expiration of the *236
twenty years (in 1922), the limitation of time was apparently overlooked, and the power company continued to serve the village and the public as it had done those many years before. The limitation was remembered in 1925, and thereupon the village, instead of renewing or continuing the franchise in favor of the company in possession, declared it at an end and attempted to confer it on another. A lawsuit promptly followed. The village brought suit against the Chasm Power Company in August, 1926, to enjoin the continued occupation of the streets and public places by the poles and other fixtures. The power company answered pleading acquiescence and estoppel. During the pendency of the action the rights, if any, of the power company were assigned to the Eastern New York Gas and Electric Company, which was joined as a defendant. The suit resulted in a judgment in favor of the village enjoining the continued occupation of the streets and public places, which judgment was affirmed by the Appellate Division (
Before the grant of any franchise to the Chasm Power Company, one J.O. Smith had applied to the Board of Trustees of the village for a franchise permitting him or his assigns to place poles and other lighting appliances in the streets of the village for the purpose of supplying electric light under the name of the High Falls Electric Light and Power Company. On March 27, 1899, the Board of Trustees adopted a resolution granting the petition. Incorporated in the resolution was a written promise signed by Smith, dated the same day, whereby he undertook in consideration of the granting of the franchise to supply light to the village for its streets and public buildings at designated rates. The Board of Trustees, in the resolution granting the petition, accepted this offer, and by implication, if not expressly, promised on its part to make payment for the service.
Nothing was done by Smith under the contract so made *237 or the franchise so conferred. No plant was ever acquired by him, and no poles or wires were ever built or strung. After his death, however, his executors assigned his rights and interests in and under the franchise to the Eastern New York Electric and Gas Company. This assignment was made in November, 1927, while the suit by the village against the power company was still undetermined.
No issue in respect of the Smith franchise or of the rights of an assignee thereunder was tendered by the pleadings, in the suit by the village. Indeed, when the suit was begun, the Chasm Power Company, which had never acquired Smith's interest in the franchise, was still the sole defendant. The wrong charged in the complaint was the continued occupation of the streets after the time limit had expired. The justification pleaded in the answer was acquiescence and estoppel. Upon those issues the parties went to trial, the power company's assignee being then joined as a defendant. In the course of the trial, without suggestion of a purpose to broaden the issues as defined by the pleadings, the defendants put in evidence the Smith franchise and the assignment. At that time (November, 1928) the Public Service Commission had not yet issued a certificate of permission and approval. Plainly, therefore, the Smith franchise, apart from any objection of non-acceptance or non-user, could not avail to confer upon the defendants a present right of occupation (Public Service Commission Law; Cons. Laws, ch. 48, § 68). The defendants in offering it in evidence, did not state the purpose of the offer, but they must have understood that in the absence of a certificate the privilege that it conferred was at best imperfect and potential. When the case was in this court (
When the case was submitted to the trial judge, the defendants proposed 74 findings of fact and 9 conclusions of law. Two of the proposed findings of fact set forth the resolution of the village granting the franchise to Smith and the assignment by Smith's executors. None of the conclusions of law proposed any ruling in respect of its validity. Whatever validity it had was treated, apparently, as inchoate and uncertain, for the action of the Commission was still unknown and problematical. At most there was a suggestion of a circumstance that might supply a reason for delay.
On the side of the plaintiff village, there was equally no thought that the validity of the assignment to Smith and his assigns was an issue to be determined. The decision of the trial judge, which embodies presumably the findings proposed by the successful party, does not mention the Smith franchise at all. No finding was proposed that there had been a failure to accept it or a failure to use it. No conclusion was proposed that its vitality had been sapped by inaction or abandonment. There is indeed a conclusion of law that the defendants "have no consent, grant or franchise from the plaintiff, the Village of Chateaugay, to occupy the streets and public places of the Village." This conclusion, classified as one of law, is not a determination of new issues, unrelated to the pleadings. It is precisely what it professes to be, a deduction of law from the facts already found. The meaning is no more than this, that the franchise to the power company, the only franchise mentioned in the decision, has been terminated through lapse of time, and that the acts relied upon by the defendants in support of their defenses of acquiescence and estoppel are unavailing to preserve it.
The burden is on a litigant who claims the benefit of a *239
former judgment as res judicata to prove that the res to be thus established by estoppel was either involved by implication or actually determined in the former litigation (Rudd v.Cornell,
(2) The former judgment not availing as a bar or an *240 estoppel, we have yet to determine whether the approval of the Commission is invalid because of failure of proof of a franchise presently existing.
Public Service Commission Law, section 68, provides: "No gas corporation or electric corporation shall begin construction of a gas plant or electric plant without first having obtained the permission and approval of the commission. No such corporation shall exercise any right or privilege under any franchise hereafter granted or under any franchise heretofore granted, but not heretofore actually exercised, or the exercise of which shall have been suspended for more than one year, without first having obtained the permission and approval of the commission. Before such certificate shall be issued a certified copy of the charter of such corporation shall be filed in the office of the commission, together with a verified statement of the president and secretary of the corporation, showing that it has received the required consent of the proper municipal authorities."
Under this statute a consent presently operative that the petitioner occupy the highway is a condition precedent to a certificate of approval. The existence of such a consent is a fact to be proved to the Commission just as much as any other fact conditioning its action (Matter of City of Long Beach v.Public Service Comm.,
We think a lawful revocation, terminating the franchise, has been established by the village. The rule is now settled that the municipal authorities consenting to a franchise for the occupation of the public streets, may revoke the consent for nonuser of the privilege (New York *241 Electric Lines Co. v. Empire City Subway Co.,
Sufficient grounds there plainly were for the recall of this consent. For nearly thirty years nothing had been done by Smith or his assigns either in the fulfillment of the lighting contract with the village or in the use of the franchise that had been given in aid of its performance. Then, with Smith in his grave, a lighting corporation unearths the stale grant, so long neglected and forgotten, and makes proof of an assignment obtained from the executors, to continue an occupation that had been declared to be illegal. The evidence of abandonment could hardly have been clearer if the petitioner had come forward after inaction for a century.
The argument is made that revocation, even if permissible, had not been adequately declared when the Commission certified approval, and that in the absence of revocation the franchise still subsisted. The facts, we think, are to the contrary. A resolution terminating a franchise for breach of a condition, is not required to *242
follow a particular form. There is no need to use the word "revoke" or any other term of art. All that is needed is that the election be so expressed as to make intention reasonably apparent when words are interpreted in the setting of the circumstances. The test was fully met. As soon as the application for a certificate was made to the Commission, the Board of Trustees adopted a resolution directing counsel for the village to oppose the granting of the petition. Following this resolution the village served an answer, verified by the Mayor, in which it denied that the petitioner or its predecessors in title had any privilege or franchise to occupy the village streets under the resolution of the Board passed in March, 1899, or by any other consent or grant. This could only mean, in the setting of the circumstances, that the franchise of March, 1899, was no longer in existence. Upon the hearing before the Commission, counsel for the village stated as one of the grounds of opposition that there had been a forfeiture of the consent by reason of nonuser. No objection was made, so far as the record now informs us, that the form of the resolution was insufficient to establish revocation. The petition for rehearing gave notice to the Commission that within a fortnight following its certificate another resolution, revoking the consent with all possible formality, had been spread upon the records. Even if we disregard the later resolution on the ground that a petition for a rehearing invokes the exercise of discretion (People ex rel. New York Queens Gas Co. v.Straus,
In what has been written we have assumed in favor of the appellant that the nonuser of the franchise is the breach of a condition subsequent, with the result that the privilege survives until revoked. Such is commonly the effect (New York ElectricLines Co. v. Empire City Subway, Co. supra). The nature of the condition, whether *243
precedent or subsequent, is, however, a question of intention, dependent for its solution upon the terms of the enabling statute and the language of the grant (Vroom v. Tilly,
The order should be affirmed with costs.
POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Order affirmed.