People ex rel. City of Olean v. Western New York & Pennsylvania Traction Co.

• Decision Date: 13 April 1915
• Citation: 214 N.Y. 526,108 N.E. 847
• Parties: PEOPLE ex rel. CITY OF OLEAN v. WESTERN NEW YORK & PENNSYLVANIA TRACTION CO.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 526

108 N.E. 847

PEOPLE ex rel. CITY OF OLEAN

v.WESTERN NEW YORK & PENNSYLVANIA TRACTION CO.

Court of Appeals of New York.

April 13, 1915.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Mandamus by the People, on the relation of the City of Olean, against the Western New York & Pennsylvania Traction Company. An order directing a peremptory writ was affirmed by the Appellate Division (150 N. Y. Supp. 1104), and respondent appeals. Reversed.

William L. Marcy, of Buffalo, for appellant.

D. L. Jewell, of Olean, for respondent.

Ledyard P. Hale, of Albany, submitted a brief for Public Service Commission, Second District.

MILLER, J.

This proceeding was instituted to compel the defendant, a street railroad corporation, to remove its tracks from the side to the center of East State street, in the city of Olean, in accordance with a resolution of the common council of said city. When the defendant's road was constructed the part of the street in question was outside the limits of the city, and in the town of Olean. The consent of the town highway commissioner, granted pursuant to the statute (now section 171 of the Railroad Law; Consol. Laws, c. 49), required the construction of the railroad on the side of the highway ‘where it will not interfere seriously with ordinary traffic.’ Pursuant thereto the railroad was located on the south side of the highway. Proceedings having been taken to improve said street under section 137 of the Highway Law (Consol. Laws, c. 25), the common council adopted the resolution which is the basis of this proceeding.

A railroad derives its franchise from the state. The statute, now section 171 of the Railroad Law, pursuant to article 3, § 18, of the state Constitution, makes the exercise of such a franchise in the case of street railroads conditional upon the consent ‘of the local authorities having control of that portion of a street or highway upon which it is proposed to build or operate such railroad,’ etc. No doubt, the consent of the local authority may be withheld or granted on specified conditions, but, when given, the special franchise, so called, becomes property protected by the Constitution, and, except for conditions attached to the consent, subject to regulation only under the police power. People v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684; Ingersoll v. Nassau Electric R. R. Co., 157 N. Y. 453, 52 N. E. 545,43 L. R. A. 236.

[1] No doubt, to promote the public convenience the Legislature may compel the defendant to relocate its tracks. People ex rel. City of Geneva v. G. W., S. F. & C. L. Traction Co., 186 N. Y. 516, 78 N. E. 1109. And see City of Rochester v. Rochester Railway Co., 182 N. Y. 99, 74 N. E. 953,70 L. R. A. 773;Chicago, Burlington & Quincy Railway Co. v. Illinois ex rel . Drainage Com'rs, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175.

[2] However, the police power resides in the state Legislature, and may be exercised by local bodies only to the extent that it has plainly been delegated. In the City of Geneva Case the city charter expressly authorized the board of public works to require a street surface railroad to change the location and grade of its tracks to conform to any improvement or alteration in the street. There has been no such express delegation of power to the city of Olean; and as the learned counsel for the respondent concedes, the important question in this case is whether that power is necessarily to be implied from the powers expressly conferred on the common council.

[3][4] Undoubtedly municipal corporations possess implied, as well as express, powers. Village of Carthage v. Frederick, 122 N . Y. 268, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490. But, to be implied, a power must be so essential to the exercise of some power expressly conferred as plainly to appear to have been within the intention of the Legislature. The implied power must be necessary, not merely convenient, and the intention of the Legislature must be free from doubt. Dillon on Municipal Corporations (3d Ed.) § 89; Minturn v. Larue, 23 How. 435, 16 L. Ed. 574;City of Ottawa v. Carey, 108 U. S. 110, 124, 2 Sup. Ct. 361, 27 L. Ed. 669. Powers of local government and police regulation usually...