
    Niagara and Erie Power Company, Plaintiff, v. Public Service Commission, Second District, of the State of New York, Defendant.
    Third Department,
    January 5, 1916.
    Public service corporation — Transportation Corporations Law, § 61, construed — “ municipal authorities ” defined—permission to maintain wires in streets of town.
    The town board and not the commissioner or superintendent of highways constitutes the “municipal authorities” within the meaning of subdivision 3 of section 61 of the Transportation Corporations Law, which provides that a corporation may erect poles, lay conduits, maintain wires, etc., in the public streets and places of a town, with the. consent of the “ municipal authorities ” thereof.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 12J9 of the Code of Civil Procedure.
    A review is sought of a determination of the Public Service Commission denying the application of the Niagara and Erie Power Company for permission to construct an electrical plant, consisting of poles, wires and conduits, in the town of Portland, Chautauqua county.
    
      Strebel, Corey, Tubbs & Beals [Warren Tubbs of counsel], for the plaintiff.
    
      Ledyard P. Hale, for the defendant.
   Howard, J.:

The Niagara and Erie Power Company is a domestic corporation organized under the Transportation Corporations Law, and, among other things, is engaged in generating and transmitting electricity. This corporation made application to the town board of Portland, Chautauqua county, for permission to construct and maintain a line of wires on poles or in conduits through the streets and public places of the town. This permission was granted. The company then petitioned the Public Service Commission for permission to construct its plant in the town. This was denied upon the sole ground that the company had not obtained the consent of the town superintendent of highways.

Subdivision 2 of section 61 of the Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219) provides that a corporation like this one may erect poles lay conduits, maintain wires, etc., in the public streets and places of a town with the consent of the “municipal authorities ” thereof. So that the question before us is, who are the “municipal authorities ” of a town within the meaning of this expression ? What official or officials did the Legislature have in mind ? It seems almost idle to reason about it, for the result of any course of reasoning is little better than a guess. The truth is, very likely, that the Legislature did not have any particular official or body in mind. It is simply one of those careless, indefinite expressions which so frequently creep info statutes. But it is not so important in this case to discover the legislative intent as to avoid a conflict of authority when applications like the one before us is made: It is desirable that the responsibility of granting or refusing applications for franchises of this nature in towns be definitely fixed and placed upon some specific body or official.

This question has never been directly passed upon by the courts so far as we can discover, although there have been several obiter expressions pro and con. The latest, highest and most authoritative expression is found in Farnsworth v. Boro Oil & Gas Co. (216 N. Y. 40). An examination of that case shows clearly that the Court of Appeals considered that the town board is the ‘1 municipal authorities ” intended by the

statute. We quote from the opinion: “Such corporations are required to obtain the consent of the municipal authorities’ of the city, village or town in which their pipes are to be laid (Transportation Corporations Law, sec. 61). The plaintiff argues, and the defendant seems to concede, that the ‘mimic-pal authorities ’ of a town are the members of the town board. The statutes and the decisions sustain the concession [citing cases], A corporation organized under the Transportation Corporations Law to manufacture and supply gas is not restricted, however, to the sale of manufactured gas. It may deal in natural gas also (L. 1902, ch. 696; L. 1909, ch. 219, sec. 61). We have thus a singular situation. Corporations dealing in natural gas, but organized under the Transportation Corporations Law, are told to seek the consent of the municipal authorities, i. e., the town board. Corporations dealing in natural gas, but organized under the Business Corporations Law, are told to seek the consent of the commissioner of highways, now the town superintendent (Highway Law [L. 1909, ch. 30], sec. 43).” In addition to this quotation, all through the opinion are expressions which indicate that it is the town board, not the commissioner of highways, which, as the Court of Appeals believes, constitutes the “municipal authorities” within the meaning of the statute.

In view of this opinion, no matter if it be obiter as to this subject, we feel that our decision should follow it; and, therefore, we hold that the Niagara and Erie Power Company, having procured the consent of the town board, did procure the consent of the proper “municipal authorities” and that the Public Service Commission improperly denied its application.

The order of the Public Service Commission should be annulled and the matter remitted to the Commission for further action.

All concurred.

Order of the Public Service Commission annulled, and the matter remitted to the Commission for further consideration.  