Whether an assault was committed depends on the question whether the railroad company had the right to collect the additional five-cent fare. If it had, an assault was not committed. (Penal Law, § 246; Railroad Law, § 61.) On the facts proved the conviction was not erroneous; but capital error was committed in refusing to receive evidence offered to show that the railroad company had a right under its franchise to charge the fare for. the refusal to pay which the complainant was expelled from the car.. The relevancy of such evidence is established by the decision of the Appellate Division of the First Department in People ex rel. Brooklyn City R. R. Co. v. Nixon (193 App. Div. 746). The evidence was rejected on the theory that an order of the Public Service Commission directing that “the Brooklyn City Railroad Company forthwith comply with the law by charging and collecting not more than a single fare of five (5) cents from any passenger for one continuous ride from any point on its Flatbush Avenue Line to any other point thereon within the limits of the City of New York ” was conclusive, not open to collateral attack, and, therefore, that evidence of franchise right to charge more could not be received. The order of the Public Service Commission has been nullified by the decision of the Appellate Division in the certiorari proceeding above cited, but such decision does not touch the question of the validity of the order pending the proceeding.
The question, therefore, turns upon the validity of the order before it was nullified by the court. The district attorney in his brief states the problem with entire accuracy. He says: “ It becomes necessary at the outset to determine whether the Commission had jurisdiction to make the order or not, for if it had no jurisdiction, the order is void, whereas, if it had jurisdiction, it is, at the worst, merely voidable. If the order is void, then, of course, it may be attacked in any proceeding
Under section 48 there is no authority for an order when the investigation is not for the purpose of redressing a grievance complained of, but is made on the motion of the Commission in the interest of the public at large. The investigation on the motion of the Commission is like a legislative investigation for the purpose of ascertaining facts. If it be developed in
Within a certain field the Commission may act upon its own motion and make an order defining the duties of the carrier to the public at large. This power is conferred by section 49, entitled, “ Rates and service to be fixed by the Commission.” This section is not applicable to the determination of a question of law such as is presented in this case; but to the question of the reasonableness of fares and service.- The law requires that rates and service be reasonable. The Public Service Commissions Law commits to the Commission the administrative power to determine, after investigation, the measure of this obligation, and it may proceed either on its own motion or on complaint by others. This involves, among other things, when it is a question of fares, an inquiry as to the “ reasonable average return upon the value of the property actually used in the public service and to the necessity of making reservation out of income for surplus and contingencies.” No such investigation was made by the Commission in this case.
The proceeding and order in this case were not in the exercise of power granted by section 49, but the Commission assumed upon its own motion to decide a question of law as to the'franchise rights and duties of the street railroad company and to make an order in accordance with its decision. This it had no power to do and the order was consequently without jurisdiction.
Even in proceedings under section 49, the Public Service Commission is without jurisdiction “ to abrogate conditions in respect of fares, contained in franchise agreements between municipalities and railroads, when the agreements were already in existence at the adoption of the statute.” (Matter of City of Niagara Falls v. Public Service Comm., 229 N. Y. 333; Matter of Quinby v. Public Service Comm., 223 id. 244), and the franchises of the Brooklyn City Railroad Company antedated the adoption of the Public Service Commissions Law.
If I am right in this analysis of the statute, the order of the
I recommend: Judgment reversed and new trial ordered, with a recital in the order of reversal that we have examined the facts and found no error therein.
Jenks, P. J., Putnam and Kelly, JJ., concur; Rich, J., dissents upon the ground that the decision of the Public Service Commission was not open to collateral attack, and that the franchises were properly excluded.
Judgment of conviction of the Court of Special Sessions reversed and new trial ordered.