208 A.D. 330 | N.Y. App. Div. | 1924
Lead Opinion
The defendant, respondent, the New York and Stamford Railway Company, is a domestic corporation organized under the Railroad Law of this State as a consolidation of the Larchmont Horse Railway Company and the Port Chester Street Railway Company. It operates a street surface railway from a point in the city of New Rochelle through the towns of Mamaroneck, Harrison and Rye, and the villages of Larchmont, Mamaroneck, Rye and Port Chester, all located in the county of Westchester, and also through the town, village and borough of Greenwich to a terminus in the city of Stamford, all in the State of Connecticut. Its total mileage including the main line and branches is twenty-six and thirty-seven one-hundredths miles. An order was made on July 22, 1920, which permitted the company to divide its fine into zones for the purpose of establishing zones of fare. Such order provides for a five-cent fare in the village of Mamaroneck and also a five-cent fare in the village of Larchmont but requires the payment of a fare in excess of five cents from without the village of Mamaroneck to points within that village and vice versa. It is conceded that the fares charged by the company pursuant to this order are in excess of that named in the franchises by which the village of Mamaroneck permitted the building and operation of the street railway through its streets. The street railway company has presented a petition to the Public Service Commission asking leave to issue on a three days’ notice a tariff schedule which will increase the rate of fare in the village of Larchmont, the latter village having
The company is charging a single fare of five cents per passenger between the points entirely within the village of Mamaroneck but is charging single fares in excess of five cents between the points mentioned in the above section of the franchise agreement which are outside of the village of Mamaroneck. The main question at issue on this appeal is this — does the agreement between the village of Mamaroneck and the company’s predecessor in respect to rates for transportation outside of the limits of that village, deprive the Public Service Commission of jurisdiction to regulate such rates outside the village?
The merits of the application are in no way involved on this appeal. In discussing the rights of the parties and the decisions of the courts bearing on the same, it is well to bear in mind that the Public Service Commissions Law, being chapter 480 of the Laws of 1910 (Consol. Laws, chap. 48), as amended by chapter 546 of the Laws of 1911, reads as follows:
“ § 49. Rates and service to be fixed by the Commission.
“ 1. Whenever either Commission shall be of opinion, after a hearing had upon its own motion or upon a complaint, that the rates, fares or charges demanded, exacted, charged or collected by any common carrier, railroad corporation or street railroad corporation subject to its jurisdiction for the transportation of persons or property within the State, or that the regulations or practices of such common carrier, railroad corporation or street railroad corporation affecting such rates are unjust, unreasonable, unjustly discriminatory or unduly preferential, or in anywise in violation of any
The short title of the statute was changed to Public Service Commission Law by chapter 134 of the Laws of 1921, and the foregoing quotation was amended by chapters 134 and 335 of the Laws of 1921, by inserting therein, among other provisions, a provision authorizing the regulation of fares “notwithstanding that a higher or lower rate, fare or charge has been heretofore prescribed by general or special statute, contract, grant, franchise condition, consent or other agreement.”
The law continued as above quoted until the passage of chapter 891 of the Laws of 1923, which became effective on June first of that year, by which law the amendments of 1921 to the foregoing quotation were repealed and the law made to read substantially as it was before the enactment of the laws of 1921, above cited. Therefore, in construing the various decisions it is necessary to bear in mind that the law prior to 1921 and the law subsequent to June 1, 1923, are the same and that the law of 1921 until June 1, 1923, contained the above quoted clause.
We are confronted upon this appeal with the following questions:
(1) Is the order of prohibition the proper procedure in this case? This question was expressly waived upon the argument and, therefore, needs no further discussion.
(2) Is the law of 1921, or the amendment of 1923, controlling in this case?
(3) What are the powers of the Public Service Commission under the respective laws? ,
The petition of the street railway company for increase of fares was filed with the Public Service Commission previous to the
Matter of Quinby v. Pub. Serv. Comm. (223 N. Y. 244) is a case which arose in the city of Rochester. The petition was made by a street railway company for permission to increase its fares in that city. A writ of prohibition was secured by the city. Objections were raised to the jurisdiction of the Public Service Commission to entertain such application on the grounds: First, on section 7 of chapter 359 of the Laws of 1915, amending section 636 of the Charter of the City of Rochester
Section 18 of article 3 of the State Constitution reads as follows: “ But no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained * *
It was said that “ in the absence of clear and definite language conferring without ambiguity jurisdiction upon the Public Service Commission to increase rates of fare agreed upon by the street railroad and the local authorities we should not unnecessarily hold that the Legislature has intended to delegate any of its powers in the matter, whatever its powers may be.” The question as to whether the Legislature had any authority and if so the extent thereof was expressly reserved in the following language: “ It is, however, unnecessary and, therefore, improper to decide at this time what the limits of legislative power are in this connection.”
Therefore, in so far as the Quinby case is applicable to the one at bar it holds that under the law in effect prior to 1921 the Public Service Commission has no authority to modify or interfere in anyway with a local contract which is made a condition of a franchise granted by a municipality to a street car company for permission
That decision was made prior to the amendment of the then named Public Service Commissions Law in 1921. McLaughlin, J., wrote a dissenting opinion in this case in which he holds that “ The State may increase or diminish a rate fixed in a franchise or contract ” and that the Legislature has constitutional power to modify such rates.
Following is his language: “ Whatever power the State had in this respect was inherent, an attribute of sovereignty, of which it could not be deprived by the contracting parties any more than it could of its own existence.”
In this view three of his associates concurred. It is interesting to note that in a separate opinion written by Cardozo, J., he states that the only question involved in the Quinby case was one of statutory construction.
In People ex rel. Village of South Glens Falls v. Pub. Serv. Comm. (225 N. Y. 216) there was no constitutional question involved. It
The decision in the Glens Falls case is placed upon the ground that the Legislature by subdivision 5 of section 66 and by section 72 of the then named Public Service Commissions Law, which apply solely to gas and electricity, distinctly delegated the authority to the Public Service Commission to modify local contracts. This was not the situation in the Quinby case. That case also states that while the power of the Legislature to deal with such local contracts was specifically reserved in the Quinby case “ the opinion [in the Quinby case] clearly intimated that such power did exist.” The constitutional provision regarding street railways not having been at issue in the Glens Falls case, there is nothing in such opinion which is in any way controlling in the case at bar.
Matter of Koehn v. Pub. Serv. Comm. (107 Misc. Rep. 151) is a case where a railroad (not a street railway) was built and operated .on private property. It is said in that case that the constitutional provision with reference to consents for the construction or operation of street railways “ was intended to confer upon the localities power to impose conditions, if at all, pertinent to the grant of such consents so far as the municipality had a city purpose to protect, not inconsistent with the public interests of the State at large.”
It was also said, “ assuming, therefore, that these municipalities had the power to fix rates of urban fare as a condition of the granting of consents to an urban railroad, did they have any authority, implied in this constitutional provision, to fix rates of interurban fare as a condition of the granting of consents to such an interurban fine as is here in question? Does it serve a public purpose of the city to fix rates of fare to and from other municipalities? It is my opinion that the consideration asked by the city cannot be something which is not germane to the public purpose for which the city and its government exists and certainly not something which is contrary to the public policy of the State.”
The discussion in that case is valuable as showing the reasons which are applicable to the case at bar. It states that “ the fixing
It is also said that “ the Legislature has never meant to leave any such unusual power in any municipality under the sanction of the constitutional provision but has reserved full authority in itself for that purpose, and has given such power to its own agent, the Public Service Commission.”
It was also pertinently stated: “ Can the city of Tonawanda to-day fix a rate of fare by a condition in a consent which has effect outside its own boundaries and thus deprive the Public Service Commission of jurisdiction clearly given to it? That would be putting the railroad system of the State at the mercy of some of its cities, in a matter concerning not only the inhabitants of those cities, but all the inhabitants of the State.”
The court in that case concludes by holding that this was not a case which was controlled by the constitutional provision and, therefore, the rule in the Glens Falls case rather than the Quinby case was applicable.
Matter of Fleming (117 Misc. Rep. 373) was a prohibition proceeding brought to restrain the increase of rates. The headnote states: “ While a city although having no constitutional authority to prescribe the rate of fare may impose as a condition to the giving of its consent to the operation of a street railway within the corporate limits that a stipulated rate of fare shall be charged, the. Legislature has full power to determine the conditions that local authorities may attach to railroad consents to be given in the future.”
The rate which is fixed as a consideration for the contract is subject to regulation by the Legislature. The substance of the argument in that case, as applicable here, is that the city cannot prescribe a fare but can impose a condition of a stipulated fare; that the Quinby case dealt only with the powers of cities over corporations, in the absence of legislative control; and that no city can take away the regulatory or police power of the State, and the conclusion reached was that the local franchises were made with the implication that the Legislature had the right to regulate the fare and that the Commission had jurisdiction to grant the relief asked for so far as the local franchises within the city of Troy were concerned.
People ex rel. Garrison v. Nixon (229 N. Y. 575) (1920) is a case which was decided upon the question of procedure, but the dissenting opinion of Crane, J., is instructive as a reiteration and exhaustive discussion of the right of the Legislature to override conditions imposed by local franchises. The opinion, in which two of the judges concur, says: “ The power to regulate fares is one of the police powers of the State Legislature. * * * ” and that “ consents * * * given to all these railroads were subject to these laws and the power of the Legislature through the Public Service Commission to regulate the rate of fare.”
People ex rel. New York & N. S. T. Co. v. Pub. Serv. Comm. (175 App. Div. 869) (1916), which is cited as conclusive against the appellant herein, was overruled by the Quinby case. The force of the opinion in People ex rel. South Shore Traction Co. v. Willcox (133 App. Div. 556) (1909), apparently favoring the appellant, is much modified by the holding on appeal (196 N. Y. 212) which is an affirmance but which refuses to hold to the extent of the opinion in the Appellate Division and expressly limits its effect to the matters there at issue.
In the case of People ex rel. New York, W. & B. R. Co. v. Pub. Serv. Comm. (193 App. Div. 454) (1920) the Appellate Division, First Department, recognizes the fact that the question now before us had not been settled when that decision was rendered. The following appears in the opinion: ‘ ‘ With respect to such conditions imposed by the municipal authorities in the exercise of their right conferred by section 18 of article 3 of the State Constitution to grant or withhold the consent to the construction and operation of a street railroad for the construction of which the consent of the owners of one-half in value of the property bounded on the street or highway is also required, the power and authority of the Legislature effectively to increase the rate of fare without the consent of the municipal authorities so that there may be no forfeiture of the grant by the latter, has down to the present been left in doubt.”
This court in the case of People ex rel. Village of Brownville v. Pub. Serv. Comm. (198 App. Div. 391) (1921) has held directly on the principal point at issue herein. The facts in that case and the instant case are quite analogous. In both cases .there is a franchise defeasible in case of a non-compliance with the prescribed rates whether for urban or interurban service. The franchise in each case was made prior to the passage of section 49 of chapter
We now come to another important question in this case — which law controls in this proceeding, the law of 1921 or the law of 1923?
Section 94 of the same law reads: “ Effect of repealing statute upon pending actions and proceedings. Unless otherwise specially provided by law, all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed.”
Those sections are cited as authority for holding that the powers of the Public Service Commission as in existence at the time of the fifing of such petition are preserved for the purposes of this proceeding. We cannot concur in such conclusion. The Public Service Commission derived its authority from the Legislature. It was a delegated power to be exercised in behalf of such body. It was analogous to a revocable power of attorney, the authority under which had not been executed. Such power having been delegated, the Public Service Commission could act only while its authority continued. Had it acted its order would have been in effect the act of the Legislature. Its power having been revoked, its authority ceased at once. Sections 93 and 94 of the General Construction Law do not apply. There is no right affected as referred to in the former section neither is this an action or proceeding within the meaning of the latter section as such terms are defined by sections 11-a and 46-aof the General Construction Law (as added by Laws of 1920, chap. 917), which were revised from sections 3333 to 3335, inclusive, of the Code of Civil Procedure.
In conclusion we hold that the Public Service Commission has no authority in this case to modify the rates of fares provided in the franchise with the village of Mamaroneck but such authority while delegated to such Commission by chapters 134 and 335 of the Laws of 1921 was taken away by chapter 891 of the Laws of 1923 and that such authority did not continue for the purpose of granting the application now before this court.
The order appealed from should be reversed on the law, with costs, and the motion for an order of prohibition granted, without costs.
Cochrane, P. J., concurs; H. T. Kellogg and Van Kirk, JJ., concur in result; Hinman, J., dissents, with an opinion.
See. also, Laws of 1922, chap. 153, amdg. said § 49, subd. 1.— [Rep.
See Laws of 1907, chap. 755.— [Rep.
Dissenting Opinion
I think there is a clear element of distinction between this case and the Quinby case and the other cases in the Court of Appeals which have followed the Quinby decision. In each of those cases there was involved the question of the rate of fare within the limits of the complaining municipality. Here we have the question of interference by an outside municipality with reference to a proposed increase of rate in another municipality where the latter has consented to the increase and the rights of the complaining municipality are only incidentally involved. This presents the new element of. whether a franchise agreement, binding between the parties thereto, is likewise so binding upon another municipality, not a party to the agreement, as to prevent that municipality from entering into a similar contract for the benefit of its inhabitants and involving only rates within its own borders. The Court of Appeals has not laid down any such rule and to so hold seems unreasonable.
The franchise agreement with the village of Mamaroneck was executed in 1899. Prior to the granting of this franchise the Legislature had passed the General Railroad Law of 1890. (Gen. Laws, chap. 39; Laws of 1890, chap. 565.) Section 101 of the law fixed a rate of fare at five cents and further provided: “The Legislature expressly reserves the right to regulate and reduce the rate of fare on any railroad constructed and operated wholly or in part under such chapter [Laws of T884, chap. 252] or under the provisions of this article.” (Art. 4 [now art. 5] on Street Surface Railroads.) This section 101 of the Railroad Law of 1890 (as amd. by Laws of 1892, chap. 676, and Laws of 1897, chap. 688), re-enacting the foregoing provisions,- became section 181 of the revised Railroad Law of 1910 (Consol. Laws, chap. 49; Laws of 1910, chap. 481) with the following added provision: “And the Public Service Commission shall possess the same power, to be exercised as prescribed in the Public Service Commissions Law.” By section 49 of the Public Service Commissions Law of 1910 (Consol. Laws, chap. 48; Laws of 1910, chap. 480), which revised section 49 of the former Public Service Commissions Law of 1907 (Laws of 1907, chap. 429), the Commission was given the right to determine just and reasonable rates. Said section 49 has been amended and the short title of the statute changed to Public Service Commission Law. (See Laws of 1911, chap. 546; Laws of 1921, chaps. 134, 335; Laws of 1922, chap. 153; Laws of 1923, chap. 891.) The consent given by the village of Mamaroneck in 1899 involved, by implication of the statute of 1890, the regulatory power of the State to fix the rate whenever the State, acting for itself or through another, should see fit to exercise the right which it had expressly reserved in the General Railroad Law of 1890.
This brings us to the particular case before us.' A new situation is presented. The railway company in applying to the Commission in this case does not directly attack the franchise agreement with the village of Mamaroneck but presents a new franchise agreement made with the village of Larchmont, the effect of which, however, is to modify the agreement with the village of Mamaroneck so far as that agreement affects the rights of the village of Larchmont. The modification involved does not change the rates within the village of Mamaroneck but only the rates within the limits of the present consenting municipality. The village of Mamaroneck in 1899 consented upon condition that the company should not charge more than five cents not only within that village but between certain fixed points outside of that village which included the company’s fines within the village of Larchmont. The village of Larchmont now finds it necessary to pave one of its streets, a portion of the cost of which must be borne by the railway company. The representatives of that village have satisfied themselves that
Assuming that the jurisdiction of the Public Service Commission over this case must be determined without reference to the amendment of 1921, we still have a situation which seems to be novel. We find a franchise granted by the village of Larchmont in 1923. If is this franchise which is directly involved. The Court of Appeals has said that franchises granted since 1907 are subject to the jurisdiction of the Commission. The consent of the village of Mamaroneck is incidentally involved, however, and that village now claims that the Commission is consequently prohibited from taking jurisdiction. This contention does not seem reasonable. It denies to the village of Larchmont a similar right to administer its own affairs for the benefit of its own inhabitants. It involves the rights of another municipality over which the village of Mamaroneck has no control. The rights of one municipality should not be thus restricted by the agreement of another in the absence of clear authority of law. Under these circumstances the Commission, if denied jurisdiction, must be denied it on the ground that if it exercised its power to determine the reasonableness of the rates fixed by agreement with the village of Larchmont, it may exercise a power not granted to it by modifying pro tanto the rate fixed by agreement with the village of Mamaroneck. .
There are two objections to conceding such a limitation of the Commission’s power. One is that the reasons which actuated the Court of Appeals to say that it would not interpret the statute prior to the 1921 amendment to permit the Public Service Commission to nullify existing contracts, do not apply with the same
Therefore, even assuming that this case must be determined with reference to the law as it existed prior to the 1921 amendment, which amendment of 1921 clearly gave to the Commission jurisdiction over rates fixed by local agreements, I think we should hold that the Commission has jurisdiction to consider the proposed Larchmont agreement of 1923 and to make an order thereon subject to such terms and conditions as the Commission may prescribe.
In any event I do not see how we can reverse the order appealed from. At the time the order was made by Mr. Justice Howard the amendment of 1921 was in force and the Commission clearly had jurisdiction. Application was made for an order of prohibition against the Commission. This is clearly a “ proceeding ” within the meaning of section 94 of the General Construction Law. The statute of 1923, which repealed the provision expressly granting power to the Commission to regulate rates fixed by franchise agreements, did not specially provide by law that it should have retroactive effect so as to cover a pending proceeding. The repealing act must, therefore, be read in the light of section 94 of the General Construction Law. We are, therefore, compelled to approve the order of Mr. Justice Howard even though we should say that the Commission is now powerless to act in the premises. The question of costs is at least involved. Moreover, it is to be noted that section 94 of the General Construction Law refers to “ proceedings.” It does not refer to “ special proceedings,” which is the term defined in section 46-a of the General Construction Law (as added by Laws of 1920, chap. 917, revising Code Civ. Proc. § 3334), to which Mr. Justice McCann refers. A “ special proceeding,” as defined by section 46-a, refers only to a prosecution by a party against another party in a court of justice. The word “ proceedings ” may be given a broader signification so as to include a statutory proceeding instituted before the Public Service Commission. While this is not a “ special proceeding ” because not prosecuted in
Order reversed on the law, with costs, and motion granted, without costs.