Int'l Ry. Co. v. Rann
| Decision Date | 12 July 1918 |
| Citation | 224 N.Y. 83,120 N.E. 153 |
| Parties | INTERNATIONAL RY. CO. v. RANN. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Application by the International Railway Company against William S. Rann, as corporation counsel of the City of Buffalo, for peremptory writ of mandamus. From an order of the Appellate Division, Fourth Department (171 N. Y. Supp. 1088), affirming an order of the Erie Special Term (171 N. Y. Supp. 193), denying its application, the company appeals by permission. Order affirmed.
Henry W. Killeen, of Buffalo, for appellant.
William S. Rann, of Buffalo, for respondent Joseph A. Wechter and others, interveners.
This is an application for a peremptory writ of mandamus, directing the corporation counsel of the city of Buffalo to sign a stipulation of discontinuance of a franchise tax certiorari proceeding instituted by the appellant. The controversy is over the construction of that portion of section 31 of the charter of the city of Buffalo (Laws of 1914, c. 217, Laws of 1916, c. 260), which reads as follows:
‘No resolution of the council, appropriating money other than for the regular pay rolls or to meet any legal obligation of the city, and no resolution incurring or providing for the incurring of any expenses, other than for repairs immediately necessary, * * * and no resolution disposing of any property or rights of the city, shall become effective until thirty days from its adoption; and its operation shall be suspended, and it shall be reconsidered and submitted to the electors, in the same manner as in this section provided for the suspension, reconsideration, and submission of any ordinance.’
-as applied to resolutions of the council adopted June 18, 1918, and assented to by the appellant, consenting to an increase in the rate of fare to be charged by appellant from five cents to six cents for each passenger in Buffalo, pending an investigation by the Public Service Commission as to the just and reasonable rate to be charged during the present war and for six months thereafter.
The discontinuance of the franchise tax certiorari proceeding is provided for in the resolutions. It is a mere incident to the adjustment of the prayer of the appellant for relief, but it has become a convenient resort to test the effectiveness of the resolutions in their main feature.
The street railway service in Buffalo was formerly rendered by three corporations, each operating on its own lines and charging passengers an extra fare for the privilege of transferring to the cars of either of the other lines. Prior to 1892 the situation had become unsatisfactory both to the companies and their patrons, and on agreement was accordingly made between the city and the several companies, which is known as the ‘Milburn agreement.’ Its chief purpose was to provide for a general transfer system between the street railroad companies and to provide the rate of compensation which they should pay the city for the enjoyment of their franchises. Kuhn v. Knight, 190 N. Y. 339, 343,83 N. E. 293. It is dated January 1, 1892, and was executed in that month by the parties thereto. It was afterwards ratified by the Legislature (Laws of 1892, c. 151), and is recognized as valid in section 93 of the Railroad Law (). It regulates generally the relations between the city and the companies. The latter, among other things, agree to charge only five cents for transporting a passenger from any point on any of the lines to any other point on any of them by the most direct route. Transfer charges are abolished. All of the franchises which have been granted to any company now forming part of the International Railway Company, and all franchises granted to the International Railway Company since 1892, refer to and make the Milburn agreement a part of the grant, and the five-cent fare is fixed in all of said franchises. Under existing law, before the rate can be changed, the consent of the city is necessary. The terms of this agreement having become onerous, the appellant sought such consent with the result indicated above.
The respondent contends that the agreement of the street railway companies with the city of Buffalo to abolish transfer charges and charge a five-cent fare is a right of the city. If it is such a right, within the meaning of section 31 of the city charter, the resolutions dispose of it, and therefore are not effective until 30 days after their adoption, and are subject to the vote of the electors of the city, if such a vote is demanded by 5 per centum of the electors. If it is not such a right, the resolutions are immediately effective, and the writ of mandamus should issue.
[1] The Public Service Commission may, with the consent of the local authorities evidenced as provided by law, increase rates of fare previously agreed upon by street railroad corporations and the city. The regulations as to rates of fare are conditions upon which the railroads exercise their franchises. They are not immutable. Matter of Quinby v. Public Service Commission, 223 N. Y. 244, 119 N. E. 433.
The appellant does not question the power of the Legislature to enact the referendum provision of the city charter, which has already passed the scrutiny of this court. Mills v. Sweeney, 219 N. Y. 213, 218,114 N. E. 65. With the merits of the request for the privilege to charge a six-cent fare we may not concern ourselves, nor are we called upon to indicate to what extent the Legislature may go in regulating rates of fare in the city of Buffalo; neither are we asked to deal with the resolutions as ‘immediately necessary for the preservation of the public peace, health or safety.’ The charter (section 31) excepts ordinances which bear on their face a recital of immediate necessity from the referendum.
[2] We come at once to the heart of the controversy. Is the provision in the Milburn agreement for a five-cent fare a right of the city of Buffalo? That which is directed by law for one's protection and adventage is said to be one's right. The rate of fare provision of the Milburn agreement unquestionably secures...
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