Walsh v. La Guardia

• Decision Date: 08 January 1936
• Citation: 269 N.Y. 437,199 N.E. 652
• Parties: WALSH v. LA GUARDIA, Mayor et al.
• Court: New York Court of Appeals Court of Appeals

269 N.Y. 437

199 N.E. 652

WALSH

v.LA GUARDIA, Mayor et al.

Court of Appeals of New York.

Jan. 8, 1936.

Proceedings by John J. Walsh for a mandamus order against Fiorello H. La Guardia, Mayor of the City of New York, and another, for a peremptory order of mandamus to compel the defendants to forthwith cause any owner or operator of omnibuses to cease operating over certain streets in the borough of Queens until said owner or operator shall have complied with provisions of law applicable to such operation and granted the motion. An order of Special Term denying a peremptory mandamus order was reversed on the law by the Appellate Division (245 App.Div. 835, 281 N.Y.S. 67), which granted the motion, and defendants appeal.

Order of Appellate Division reversed, and that of Special Term affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Paul Windels, Corp. Counsel, of New York City (Joseph L. Weiner and Herman Horowitz, both of New York City, of counsel), for appellants.

John J. Walsh, of Brooklyn, pro se.

CRANE, Chief Judge.

In Blanshard v. City of New York, 262 N.Y. 5, 186 N.E. 29, this court decided that, unless a consent be granted by the board of estimate and apportionment in accordance with section 74 of the charter (Laws 1901, c. 466, as amended by Laws 1914, c. 467), a bus line has no right in the city streets; it is a trespasser, and any person may bring an action as a taxpayer to enjoin its operation.

The petitioner in this case alleges that there are about twenty-seven bus routes operated through the streets and avenues of the county of Queens, city of New York, without having obtained any franchises or rights in accordance with the provisions of the city charter; that, while the board of estimate and apportionment has given approval to a formal contract and adopted resolutions authorizing the operation of these bus lines, pursuant to section 74 of the city charter, the mayor has failed and refused to give his consent thereto, as is required by section 72, as amended by Laws 1905, c. 629, § 10. Thus it seems to be conceded that these bus lines are operating illegally, without authority, and contrary to law. What is the remedy which the public has in this situation?

We stated it, or thought we had, in the Blanshard Case. Instead of seeking relief by injunction, the petitioner has sought a mandamus order compelling the mayor and the police commissioner to performtheir duty and stop the busses from operating over these various routes. The Special Term denied the application, but the Appellate Division has made an order requiring the defendants to ‘forthwith cause every person, firm or corporation now operating any omnibus line or lines for the transportation of passengers for hire upon the routes described in the petition herein * * * to cease and discontinue such transportation unless and until each such person, firm or corporation shall have complied with the provisions of the Transportation Corporations Law and of the Greater New York Charter with respect to the operation of an omnibus line or lines.’

The Appellate Division stayed the operation of the order for a period of one hundred and eighty days. The appeal to this court has to do with the question of remedy, and it may seem rather a captious objection that what might be accomplished by a paper order called ‘injunction’ may not be done by another paper order called a ‘mandamus'; yet there are distinctions of substance between the two remedies which must not be overlooked. We may in this day have little patience with a practice which denies any relief because the paper presented to the court called a ‘petition’ asks for the wrong remedy, but we must have patience to consider carefully whether the remedy which is granted by the court on any petition, call it what we will, can be effectual to accomplish its purpose or recognizes the rights of litigants and third parties. In the action for an injunction all these bus corporations, if there be more than one, would be heard upon the question of franchise and rights to operate in the street. We do not know in this proceeding from the affidavits that any corporation is operating busses. We are not even given the names of the persons or associations illegally using the streets. The proceeding is against the mayor and the police commissioner, to compel them to sweep all public busses off the highways in Queens county. Such drastic proceedings cannot be had without hearing the parties affected, and the proceedings by way of injunction afford this opportunity.

There is another reason which is equally fundamental. No court can compel the mayor to approve the contract submitted by the board of estimate regarding these bus lines. He is given a discretion by section 72 of the charter. His approval is necessary to make the franchise legal. See, also, section 74 and section 242 of the charter, as amended by Laws 1905, c. 629, § 14. The mayor and his appointee, the police commissioner, have their duties defined by law. The Legislature has placed upon them the responsibility of carrying out the provisions of the charter of the city of New York, and, if they fail in these duties, remedies are afforded the public other than the appeal to the courts.

In other words, the order of mandamus which, as we all know, means the command to do a specific thing or suffer the consequences of contempt proceedings, is not the method provided by the law for reaching the present situation regarding these bus lines. Mandamus is used to enforce an administrative act positively required to be done by a provision of law. It is not used for the purpose of preventing third parties from doing illegal acts.

As before stated, we may welcome the day when applications to the courts for relief may be referred to as merely ‘petitions' for relief, but it will be a long time before we wipe out the distinctions between ‘mandamus' and ‘injunction.’ The distinction was very well brought out in International R. Co. v. Schwab, 203 App.Div. 68, 74, 196 N.Y.S. 659, 664, where a peremptory mandamus order was sought directing the mayor and the commissioner of public safety to enforce the Transportation Corporations Law (Consol.Laws,...