Quinby v. Pub. Serv. Comm'n of New York for Second Dist.

• Decision Date: 05 April 1918
• Citation: 119 N.E. 433,223 N.Y. 244
• Parties: QUINBY et al. v. PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK FOR SECOND DIST. et al.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 244

119 N.E. 433

QUINBY et al.

v.PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK FOR SECOND DIST. et al.

Court of Appeals of New York.

April 5, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Application by Henry D. Quinby, individually and as comptroller of the city of Rochester, and the city of Rochester, for a writ of prohibition against the Public Service Commission of the State of New York for the Second District and the New York State Railways, in which the Public Service Commission, First District, the New York Railways Company and the city of New York, intervened. Application denied (102 Misc. Rep. 357,169 N. Y. Supp. 976), applicant appealed to the Appellate Division, Third Department, which affirmed the order of the Special Term (169 N. Y. Supp. 1109), from which, by leave of the Appellate Division, applicants appeal. Order reversed and absolute writs of prohibition awarded.

Hiscock, C. J., and Collin, J., dissenting.

B. B. Cunningham, of Rochester, for appellant Quinby, individually and as, etc., and City of Rochester.

Warnick J. Kernan, of Utica, for respondent New York State Rys.

Ledyard P. Hale, of Albany, for respondent Public Service Commission, Second Dist.

Wm. P. Burr, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for intervener City of New York, amicus curiae, etc.

James L. Quackenbush, of New York City, for intervener New York Rys. co.

William L. Ransom, of New York City, for intervener Public Service Commission, First Dist.

POUND, J.

The facts upon which the application for a writ of prohibition is based are as follows: The New York State Railways presented a petition to the public service commission of the Second district praying that it be permitted to raise to six cents its rate of fare on street surface railways in the city of Rochester and a number of other cities. The city of Rochester filed objections to the jurisdiction of the public service commission to entertain such application. Its objections were based, first, on chapter 359, Laws of 1915, amending the charter of the city of Rochester, and fixing a five-cent rate for one ride over the road of any corporation operating a street surface railroad in such city; and, secondly, upon the like terms and conditions contained in the franchise of the street railroad company as a condition of the consent of the local authorities thereto. Briefs were filed with the commission on behalf of the city of Rochester in support of its claim that the public service commission was without jurisdiction to entertain said petition of the New York State Railways, and oral argument was also made before the commission by the corporation counsel of the city.

In November, 1917, the public service commission made a decision in one of the cases (Matter of Petition of Huntington R. R. Co., 14 Official State Dept. Reports; Matter of Application of N. Y. & N. S. Traction Co., 15 Official State Dept. Reports), in which a petition for permission to increase rate of fare was presented to it, and held that the commission had the power to permit fares to be increased to an amount beyond five cents, notwithstanding the provision of section 181 of the Railroad Law, and also that it had power to permit fares to be increased beyond the rate fixed in a franchise granted by a municipality to a street railway company, and beyond the rate fixed in a contract existing between a municipality and a street railway company. After such decision the public service commission decided to hear the Rochester case on the merits. The public service commission has thus assumed jurisdiction of the matter of the application of the New York State Railways for permission to increase its rate of fare in the city of Rochester to six cents.

In order to present the case before the public service commission it would be necessary for the city to have a valuation made of the property of the New York State Railways, and it would cost the city of Rochester not less than $25,000 to present its evidence before the commission.

[1] A writ of prohibition will not lie in anticipation of the action of the commission if the commission has jurisdiction of the subject-matter, and the only question is that of power to grant the particular relief prayed for. It is an extraordinary remedy for unusual cases. People ex rel. Karr v. Seward, 7 Wend. 518;People ex rel. Bean v. Russell, 49 Barb. 351;People ex rel. Ballin v. Smith, 184 N. Y. 96, 76 N. E. 925;People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339,76 N. E. 865; People ex rel. Oakley v. Petty, 32 Hun, 443. In Matter of Metz v. Maddox, 189 N. Y. 460, 82 N. E. 507,121 Am. St. Rep. 90, the sole question before this court was the constitutionality of chapter 538, Laws of 1907, providing for a recount of ballots cast in the McClellan-Hearst mayoralty contest of the year 1905, and the suitability of the procedure was not passed upon. The point that prohibition is not the proper remedy here is raised only by the intervening public service commission of the First district, and the real parties are content to have this appeal disposed of on the merits.

[2][3] We are therefore led to the inquiry: What is the jurisdiction of the commission over rate regulation? The New York State Railways operates in the Second public service district, which comprises all counties except those in Greater New York. Public Service Commissions Law (Cons. Laws, c. 48) § 3. It is a street railroad corporation, within the meaning of that term as used in the Public Service Commissions Law (Public Service Commissions Law, § 2, subd. 7). The term ‘common carrier’ includes street railroad corporations. Public Service Commissions Law, § 2, subd. 9. Section 5 of the Public Service Commissions Law, after providing that the public service commission for the First district (Greater New York) shall have jurisdiction over common carriers operating within that district, provides as follows (Public Service Commissions Law, § 5, subd. 3):

‘3. All jurisdiction, supervision, powers and duties under this chapter not specifically granted to the public service commission of the first district shall be vested in, and be exercised by, the public service commission of the second district, including the regulation and control of all transportation of persons or property, and the instrumentalities connected with such transportation, on any railroad other than a street railroad from a point within either district to a point within the other district.’

Section 181 of the Railroad Law (Cons. Laws, c. 49), so far as material here, is as follows:

‘No corporation constructing and operating a railroad under the provisions of this article, or of chapter two hundred and fifty-two of the laws of eighteen hundred and eighty-four, shall charge any passenger more than five cents for one continuous ride from any point on its road, or on any road, line or branch operated by it, or under its control, to any other point thereof, or any connecting branch thereof, within the limits of any incorporated city or village.

‘* * * 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 or under the provisions of this article; and the public service commission shall possess the same power, to be exercised as prescribed in the public service commissions law.’

Subdivision 1 of section 49 of the Public Service Commissions Law, as amended by Laws 1911, c. 546, is in part 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 any wise in violation of any provision of law, or that the maximum rates, fares or charges, chargeable by any such common carrier, railroad or street railroad corporation are insufficient to yield reasonable compensation for the service rendered, and are unjust and unreasonable, the commission shall with due regard among other things to a 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, determine the just and reasonable rates, fares and charges to be thereafter observed and in force as the maximum to be charged for the service to be performed, notwithstanding that a higher rate, fare or charge has been heretofore authorized by statute, and shall fix the same by order to be served upon all common carriers, railroad corporations or street railroad corporations by whom such rates, fares and charges are thereafter to be observed.’

It is clear that the New York State Railways, which operates in the city of Rochester and other cities of the state of New York outside the First district, is within the jurisdiction of the public service commission for the Second district, and that such commission possesses some general jurisdiction to deal with the subject of regulating the rate of fare to be charged by the street railroads in the Second district.

We must next consider whether this jurisdiction is limited.

1. By the charter amendment (L. 1915, ch. 359, § 7), fixing a five-cent fare in the city of Rochester, which reads as follows:

‘A corporation operating a street surface railroad must not charge any passenger more than five cents for one continuous ride from any point on its road to any other point thereon, within the limits of the city of...