
    The City of Troy, Respondent, v. United Traction Company, Appellant.
    Third Department,
    November 10, 1909.
    Railroad — schedule established by Public Service Commission — municipal authorities cannot establish different schedule.
    Where an existing valid order of the Public Service Commission requires a street railroad to run its cars every fifteen minutes, the common council of the municipality has no power to compel the railroad to run its cars every ten minutes, although the railroad franchise obtained from the city requires the railroad to run its cars as often as public convenience may require.
    
      Appeal by the defendant, the United Traction Company, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of said county on the 20th day of Hay, 1909, upon the decision of the court rendered after a trial before the court without a jury for $850, with interest, penalty for the violation of a city ordinance.
    
      Patrick C. Dugan [Lewis E. Carr of counsel], for the appellant.
    
      George B. Wellington, for the respondent.
   Kellogg, J.:

By the judgment in question defendant is compelled to pay large penalties for not complying with the provisions of an ordinance of the city -requiring it to run its cars upon its Oakwood avenue line each way every ten minutes, while at the time the ordinance was passed there was in force a valid order made by the Public Service Commission, binding upon the city and the defendant, requiring the cars upon said line to run each way every fifteen minutes. Section 8 of the city ordinance of 1890, which became the franchise under which the defendant’s line is operated, requires the defendant to run its cars both ways as often as the public wants and convenience may require, “and under such reasonable directions and regulations as the Common Council may from time to time prescribe.” This provision does not authorize the common council to force upon the company a time schedule upon which its cars shall be run, but if we assume otherwise, that does not justify the judgment in question. It is evident that upon the same line the defendant cannot give a ten-minute service and a fifteen-minute service, and that but one time schedule is practicable.

It is conceded that the Public Service Commission had power to force upon the defendant a schedule upon which it must operate its cam in the city of Troy. The Public Service Commissions Law was adopted, not for the purpose of getting at and oppressing public service corporations, but for the purpose of regulating the service which shall be furnished to the public. The Commission fix a reasonable and proper service which the company shall render and which the public shall receive. While the time schedule fixed by the Public Service Commission upon this line remains in force, any different time schedule fixed by the common council is unreasonable and unlawful. The common council has no more power to change the schedule fixed by the Public Service Commission than has the defendant, and neither can obtain relief from it except through the Commission itself, or in a proper proceeding to review the order of the Commission.

The judgment appealed from should, therefore, be reversed upon the law and the facts, with costs to the appellant to abide the event.

All concurredSmith, P. J., in result.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.  