
    In the Matter of the Petition of the Public Service Commission for the First District, Appellant, under Section 57 of the Public Service Commissions Law, for a Writ of Mandamus against the Interborough Rapid Transit Company, Respondent.
    First Department,
    April 14, 1916.
    Street railways — Public Service Commissions Law — application for mandamus under section 57 to compel street railway to operate daily a sufficient number of trains and to provide seats equal to the number of passengers, etc. — endeavor to comply with order of Commission — mandamus not proper remedy for violation.
    Upon an application for a writ of mandamus based upon section 57 of the Public Service Commissions Law, which authorizes and requires the Commission, when of opinion that a common carrier, railroad or street railway corporation is failing or omitting or about to fail or omit to do anything required of it by law or order of the Commission, or is doing anything or about to do anything, or permitting or about to permit anything to be done contrary to or in violation of law or of any order of the Commission, to direct its counsel to commence an action or proceeding in the Supreme Court to have such violations or threatened violations stopped and prevented either by mandamus or injunction, the court in all eases must immediately and summarily inquire into the facts and grant final judgment either dismissing the action or proceeding or directing that a writ of mandamus or an injunction, or both, issue as prayed for, or in such modified or other form as the court may determine will afford appropriate relief.
    Where the Public Service Commission made an order requiring a street railway company to operate daily a sufficient number of trains and cars and to provide a number of seats at least equal to the number of passengers or the maximum number of trains and ears that could be operated, and it appears that the company in good faith endeavored to comply with said order, but could not with safety to the public, to its employees and its property furnish the maximum service continuously, and that at times the service may become seriously congested, a writ of peremptory . mandamus is not the proper remedy for alleged violations of the order of the Commission and will be refused.
    Appeal by the petitioner, the Public Service Commission for the First District, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of July, 1915, denying its application for a writ of mandamus to compel the respondent to obey an order made by the Commission and dismissing the proceeding.
    
      Henry H. Whitman [George S. Coleman with him on the brief], for the appellant.
    
      Henry J. Smith, for the respondent.
   Laughlin, J.:

The application for the writ is based on the provisions of section 57 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480), which authorize and require the Commission whenever it “shall be of opinion” that a common carrier, railroad or street railroad corporation “is failing or omitting or about to fail or omit to do anything- required of it by law or by order of the Commission, or is doing anything or about to do anything or permitting anything or about to permit anything to -be done, contrary to or in violation of law or of any order of the Commission^” to direct its counsel “to commence an action or proceeding in the Supreme Court * * * for the purpose of having such violations or threatened violations stopped and prevented either by mandamus or injunction.” In so far as the statute gives a remedy by mandamus, it prescribes the procedure prior to the issuance of the writ. No alternative writ is authorized for the determination of controverted facts. The court is required in all cases, whether there is an appearance or answer by the corporation against which the proceeding is instituted, or whether it defaults, and whether the application be in an action for an injunction, or in a proceeding for a writ of mandamus, to inquire immediatelyand summarily into the facts and circumstances and grant-final judgment, either dismissing the action or proceeding or directing that “ a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford appropriate relief.” The duty was enjoined on the respondent by section 26 of the Public Service Commissions Law to furnish “ such service and facilities as shall be safe and adequate and in all respects just and reasonable.” Section 56, subdivision 1, of said law made it the mandatory duty of the respondent to “ obey, observe and comply with every order made by the Commission, under authority of this chapter so long as the same shall be and remain in force,” and provides a penalty not exceeding $5,000 for a violation of any of the provisions of the Public Service Commissions Law, and for a failure or omission or neglect to obey, observe or comply with any order or direction or requirement of the Commission, and provides that in case of a continuing violation, every day’s continuance thereof shall be deemed a separate and distinct offense, and subdivision 2 of said section declares that the officers and agents of a corporation who fail to obey, observe and comply with any provision of any order of the Commission shall be guilty of a misdemeanor. Section 49, subdivision 2, of the Public Service Commissions Law provides, among other things, as follows: “ Whenever the Commission shall be of opinion, after a hearing, "x * * that the regulations * * * or service of any such common carrier, •* * * are unjust, unreasonable, unsafe, improper or inadequate, the Commission shall determine the just, reasonable, safe, adequate.and proper regulations * * * and service * * * and prescribe the same by order * * * and thereafter it shall be the duty of every common carrier * * * to observe and obey each and every requirement of every such order so served upon it, and to do everything necessary or proper in order to secure absolute compliance with and observance of every such order by all of its officers, agents and employees.” On the 7th day of January, 1913, the Commission, pursuant to the statutory provisions last quoted, made an order requiring the ’ respondent, among other things, to “operate daily, including Sundays and holidays, on all subway express and local tracks in each direction, past every two successive stations on the express tracks and every three successive stations on the local tracks during all hours of the day and night in each twenty minute period, beginning on the even hour, twenty minutes past the hour and forty minutes past the hour (a) a sufficient number of trains and cars to provide a number of seats at least equal to the number of passengers, or (b) the maximum number of trains and cars that can be operated.” As authorized by section 23 of the Public Service Commissions Law the order required the respondent to notify the Commission whether it accepted and would obey the terms thereof, and it did accept and promise to obey the terms of the order. The order, the enforcement of which by mandamus is sought, merely prescribes the general continuous duty of the respondent with respect to service as a common carrier.

The maximum service which it is possible for respondent to render is thirty-three local trains of six cars each and the same number of express trains of ten cars each per hour. When the proceeding was instituted the maximum service was being regularly maintained about six hours per day. The evidence fairly shows that the respondent could not with safety to the public, to its employees and to its property furnish the maximum service continuously. The evidence further shows that the respondent after accepting the order took steps to comply therewith and has ever since .supervised the service with a view to complying with the order, but as economically as possible.

The petition on which the proceeding was instituted was verified on the 18th day of January, 1915, and in it violations of the order were charged generally on the 11th and 20th days of November, 1914, with respect to both local and express service in each direction. Prior to the hearing, which commenced on the 14th day of April, 1915, a bill of particulars of these violations was furnished by the attorney for the petitioner, and therein the alleged violations on November seventeenth were limited to south-bound express trains past the Ninety-sixth street and Seventy-second street stations in the three twenty-minute periods between ten a. m. and eleven A. m. ; and to north-bound express trains past the same stations in the single twenty-minute period between four and four-twenty p. m.; and on November twentieth to south-hound express trains past the Grand Central and Fourteenth street stations in the twenty-minute period between eleven-twenty and eleven-forty p. M., and north-bound express trains past Seventy-second street and Ninety-sixth street stations in the two twenty-minute periods between eleven and eleven-twenty p. m. and eleven-forty and midnight, and the south-bound local trains past Sixty-sixth .street, Fifty-ninth street and Fiftieth street stations in the single twenty-minute period between eight and eighttwentj p. M., and north-bound local trains past the same stations in the three twenty-minute periods between eleven and eleven-forty p. at. and twelve-twenty and twelve-forty the fol- . lowing morning. Ordinarily the travel is greatest in the winter. The month of November is known as the “transition period ” between the summer and winter schedules, and during that month the respondent gradually increases the service. The winter schedule, which substantially increased the service, went into effect on the 30th day of November, 1914, or within the period of two weeks after the alleged violations of the order. On the hearing the petitioner was permitted to show other violations on the 11th and 13th of January, 1915, and in behalf of the respondent evidence was offered tending to show that at the time the proceeding was instituted and at the time of the hearing it was maintaining the service required by the order.

The evidence shows, and the fact is manifest, that unless the maximum service is maintained at all times violations of this order may he unavoidable, for the company has no facilities for maintaining and does not maintain extra trains at the different stations to be added to the service when a count of passengers indicates the necessity therefor to conform to the order; and on extraordinary occasions, such' as a noted celebration, a parade or a fire, or other public excitement by which crowds of people may be attracted to a given section along the route of the subway and when an unusual number of passengers is received at a given station, and particularly stations where connection is made with other carriers, it is evident that the service may become seriously congested temporarily. It is likewise manifest that compliance with the order may be prevented by unavoidable accidents. Attention is drawn to these matters here, not with a view to excusing the respondent from complying with the order in so far as concerns violations at issue herein, but to show the impropriety of attempting to enforce compliance with the order by a peremptory writ of mandamus, which is and should be issued only upon the ground that there has been a failure to perform a clear, specific, legal, ministerial duty, absolutely imposed by law which it is incumbentupon the respondent to perform, and which it has failed to perform, and which may still be performed, and then the court directs the respondent to perform forthwith and to make a return to the court of the manner in which the duty has been performed. From the very nature of the writ and the remedy intended to be afforded thereby, the only return that can be made to a peremptory writ of mandamus is in effect a certificate to the effect that the requirements of the writ have been complied with. (High Ex. Leg. Bern. [3d ed.] § 549.) While the Legislature has prescribed in the Public Service Commissions Law a substitute for the provisions of the Code of Civil Procedure with respect to the proceedings prior to the issuance of a peremptory writ of mandamus, it has not, we think, attempted to change the functions of the writ. Section 2072 of the Code of Civil Procedure provides that a peremptory writ of mandamus must be made returnable at a Special Term of the Supreme Court, or at a term of the Appellate Division, to be designated therein;- and by section 2073 failure to make return is punishable as for contempt of court. The return to a peremptory writ of mandamus must be annexed to a copy of the'writ, and must before the expiration of the first day of the term at which it is returnable be either delivered in open court or filed in the office of the clerk of the county (Code Civ. Proc. § 2074); and, as already observed, it must be to the effect that the writ has been complied with. This necessarily shows that it is not the appropriate remedy to compel performance of a continuing duty or duty arising in the future. (See Fiero Spec. Proc. [3d ed.] 1356.) It is not the function of a writ of mandamus to operate as a continuing mandatory injunction. In People ex rel. Lehmaier v. Interurban St. R. Co. (177 N. Y. 296) the Court of Appeals defined the functions of the writ of mandamus as follows: “The proper function of the writ of mandamus is to compel the doing of a specific thing based upon a legal right. It does not require much argument to show that the writ of mandamus is not, in this case, an .appropriate remedy to compel .a general course of official conduct, or a long series of continuous acts, as it is impossible for the court to-oversee the performance of such duties.” Compliance with the order with respect to service on the days of which complaint is made in "the petition cannot now be compelled. The duty with respect to that service was to run sufficient trains on the-days specified, and manifestly that duty was not a continuing one which may be performed now. If the respondent had defied the Commission, or refused to take steps to comply with the order, doubtless it could have been set in motion by mandamus; but it did evidently in good faith proceed to comply with the order. We are, therefore, of opinion that mandamus is not the appropriate remedy for the alleged violations of the order of the Public Service Commission, or for any failureon its part to fully comply therewith, and that the proceeding was properly dismissed.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Clarke, P. J., Scott, Smith and Page, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
       Since amd. by Laws of 1914, chap. 240.— [Rep.
     