
    William R. Willcox and Others, Constituting the Public Service Commission of the State of New York for the First District, Respondents, v. Richmond Light and Railroad Company and Staten Island Midland Railway Company, Appellants.
    Second Department,
    December 30, 1910.
    Public service corporations — powers of Commission under sections 48 and 57 of the-Public Service Commissions Law —- railroad — enforcement of obligation to issue transfers.
    Section 48 of the Public Service Commissions Law, authorizing investigations by the Commission, and section. 57, authorizing summary proceedings against common carriers failing- to do those things required by law, or by order of the Commission-, etc., are supplementary to each other, and the Commission is entitled to. proceed under either, or both simultaneously,, as it may deem necessary.' ■
    Hence, although the Public Service Commission has under section 48 instituted ■ an investigation of the affairs of surface trolley roads operating in a village, it is not- required to. proceed to a final order therein before petitioning under section 57 for a peremptory Writ of mandamus directing such railroads to issue and receive transfers to and from other lines.
    An investigation begun under section 48 is not equivalent to an action pending so as to bar a proceeding under section 57.
    The “ violation of law ” upon which the Commission may act under section 57 is not restricted to such offenses as are specifically mentioned in the written law. The refusal of a street surface railroad to issue and receive transfers to and from other lines as.required by its charter ratified by the authorities of the municipalities in which it operates and as required by its contract with the municipality, is not a mere-violation of a covenant, but is a “ violation of law ” as-the term is used in section 57 of the Public Service Commissions Law, and the Commission may compel the fulfillment of such obligation.
    Appeal by the defendants, the Richmond. Light and Railroad Company and another, from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of-the'clerk of the county of Richmond on the 19th day. of July, 1910!, directing the issuance of a peremptory writ of mandamus.
    
      Harold Russell Griffith and Lewis H. Freedman for the appellants.
    
      Arthur Du Bois and Edward M. Deegan [George S. Coleman with them on the brief], for the respondents.
    
      Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice Clark at Special Term.
    Hirschberg, P. J., Woodward, Jenks, Thomas and Carr, JJ., concurred.
    The following is the opinion delivered at Special Term:
   Clark, J.:

This proceeding is brought to.compel the two defendants, both surface' trolley roads in the former village of New Brighton, to issue and receive transfers over certain street surface railway lines, to wit:

Over the Castleton Avenue or Brighton Heights line of the Richmond Light and Railroad Company (hereinafter called the Richmond Company), and over the Manor Road line of the Staten Island Midland Railway Company (hereinafter called the Midland Company) ; and also over the Elizabethport Ferry line of the Richmond Company, and the Manor Road dine of the Midland Company at the following points: (1) The intersection of Columbia street and Castleton avenue; (2) The intersection of Castleton avenue and Broadway,, and (3) the intersection of. Broadway and Richmond terrace.

The charters of the two street railway companies were obtained in the years 1895 and 1896; were reduced to contract form and, as executed, were approved by ordinances duly passed by the board of trustees of the village of New Brighton. The two companies accepted their respective charters, under which the operation of both line.s has been had until the present time.

The Richmond Company has operated under a charter dated March 28,1895, granted to its predecessor in title, the Staten Island Electric Railroad Company. This charter contains the following provision:

Twelfth. The Railroad Company expressly agrees that it will transport passengers over the entire length of any of its lines of railroad within said Village at a rate of fare not exceeding five cents for each continuous trip of each passenger, and will allow to each passenger paying such fare, if requested by such passenger, and subject to reasonable regulations, one transfer from any one to any other of its said lines ; and also agrees that it will receive passengers by transfer from and transfer passengers to the lines of other street surface railroads within said Village whose lines of railroad connect with or intersect its lines of railroad, upon such terms as to division of the fare paid by each such passenger,'which shall not exceed five cents between points within the Village, as shall be agreed upon between said Railroad Company and such other company or, in default of agreement upon a division of such fare in proportion to the mileage of the system owned at that time by each company.”

. The Midland Company has also operated under its charter from the village of Mew Brighton, dated July 2, 1896, which also contains a section numbered 12 which is expressed in the exact language of section 12 of the franchise issued by the village of Mew Brighton to the Richmond Company, above cited.

Although looking to the charters above mentioned alone for whatever franchises that may possess to operate street railways and to occupy the streets of the- village of New Brighton, it appears that each railroad company has from the beginning refused, and still refuses, to interchange transfers with passengers traveling on the other line. It is in evidence that such transfers have been demanded and been refused; the witness Sims, general manager of both companies, has testified that no system of transfer has ever existed between the two roads of in connection with their operation. The Commission now seeks to compel the railroad companies- to carry out the charter obligations imposed upon them.

' The grounds upon which the complainants in this action .seek relief are as follows:

1. That sections 104 and 78 of the Railroad Law have been violated.

2. That the defendants have failed to perform the conditions, as to transfers, imposed upon.them by their respective charters.

3. That the law has'been violated in that the defendants have operated their roads without the consent of the "local authorities,

4. That section 26 of the Public Service Commissions Law has not been observed.

The last ground requires no consideration in this case, inasmuch as the issue, whether the fares now charged are just and reasonable, has not been tried, nor evidence been presented to show that the defendants have failed to procure necessary consents.

If there be sufficient ground for holding that, under sections 78 and 104 of the Railroad Law, the Commission may be entitled to relief, yet, inasmuch as such relief may apply to but a small section only of the Midland route on Castleton avenue, which has been covered by a common trackage agreement between the two companies, and seems to promise only partial relief herein, that ground has not been considered.

Preliminarily, the defendants challenge the jurisdiction of the Commission and urge that in a case of the character of the one at bar the Commission having elected (not in fact elected, as the Commission proceeds under the Blair complaint, section 48, subdivision 2) to proceed under section 48, must proceed to a determination of the question involved, that is, to a final order, before it can proceed under section 57.* This contention is not well founded.

In the first place, section 48 bears the sub-title Investigations by Commission,” whereas section 57 is entitled “ Summary Proceedings.” An examination of section 48 shows that it confers upon the Commission power to issue orders but not to enforce them. Under section 57 alone can the directions of the Commission be enforced. In providing for the investigation of violations or omissions on the part of corporations, the Commission has power to make investigations and inquiry, either upon the complaint of any person or corporation aggrieved, or upon its own motion. The Commission is granted full power to investigate and determine whether the facts are sufficient to justify the issuance of its order. Section 48 is clearly framed for the purpose of enabling the Commission, in advance of the issuance of any order or the bringing of any action, to acquaint itself so thoroughly with the facts that it may form an opinion whether to dismiss or prosecute. If, after such investigation of facts, the Commission shall have reached a conclusion that action shall be taken, then and then only can the law be vindicated by summary proceedings taken under section 57. In such a case the previous investigation may be the foundation upon which summary proceedings may be instituted, or under section 57 such proceedings may be instituted when the Commission, either with, or without previous investigation, shall be of opinion that a street railroad corporation is doing anything contrary to or in violation of law. In either case, namely, after an investigation, or upon an opinión derived from any source, the Commission is authorized to proceed summarily to correct it. The two sections are supplementary of each other and not inconsistent, and the Commission is entitled to proceed under either or both simultaneously as it may.be deemed necessary.

Equally weak is the suggestion of the defense that an investigation begun under section 48 constitutes an action pending which bars the proceeding under section 57.. Such a claim violates too many of the elements required to be shown for the establishment of any bar before the defense of another action pending can be raised or sustained.

The main, issue on the merits raised by the defense is whether the failure by the defendants to perform their charter obligation is a “ violation of law,” as that term is used in section 57. This defense, if sustained, goes to the root of the litigation and is controlling, because in that question is involved the right of the Commission to maintain this proceeding.

The title to streets was formerly in the crown, and passed in this country to the people of the respective States, subject, as.to- their regulations and use, to the authority of the Legislatures. In this State and elsewhere control of such use and regulation has been delegated in large measure by the Legislature to local authorities, including municipalities and villages.

In the case at bar the village of Hew. Brighton was created, by a' special act of the Legislature (Laws of 1866, chap. 819), which gave to the board of trustees of the village full. control of the streets.

The practice of municipalities in conferring street franchises to railway companies has varied; the common method being the passage of resolutions or ordinances, or by independent contracts which were duly approved by resolutions or ordinances.

Here the two charters took the form of mutual agreements between the respective railroad companies and the village of Hew Brighton. These agreements were duly executed by both parties, and were .approved by appropriate ordinances or resolutions passed by the board of trustees of the village of Hew Brighton.

From the description contained in the pleadings, supplemented by an examination of the map of the village of Hew Brighton, it will be seen that in a general way the Richmond Company, about 1895, operated along the north and east shores, which were then the most densely populated sections of Staten Island. The routes which they sought failed to penetrate the island to any extent, except along the Castleton Avenue branch, which enabled them to serve sparsely settled districts in the middle of the island.

In the following year the Midland Company appeared as an applicant for routes distant from and supplementary to the route already pre-empted by the Richmond Company. At about this period trolley construction was .under way throughout the suburbs of New York, and the short intervals which elapsed between the dates of the charters of the two companies in question indicates that both were then under consideration. In any event, it was naturally to be expected at that time not only that the Richmond Company would be followed by a second company, but that both might be followed by a third or more.

It was not only, therefore, entirely natural, but even incumbent upon them, that the trustees of the village of Hew Brighton should, in admitting the first applicant, admit it in such way only as not to expose the village to a division into various sections where different trolley roads might subsequently be established, with the inevitable result that, in passing from one point in the village to another, many fares might be required; Hot only was the insertion of the five-cent transfer clause a wise and prudent provision, but the" omission of some such protection would have worked grave injustice to the people.

There will be no question that each defendant, through the possession of charter rights in public streets, has become a quasi public corporation. Charters emanate from the people, and through them

the people deal with' the trolley companies. Treated as contracts, sufficient obligations had moved to and from each party thereto. The inducement moving the public was the acquisition of transportation ; the inducement to the trolley companies was the privilege of using public'streets for purposes of transportation.

In People v. Stiburban R. R. Go. (178 111. 594, 607)-Mr. Justice Boggs, delivering the opinion of'the court, says: “ Respondent treating the duties imposed upon it as mere contract obligations, argues the undertakings are wholly without consideration. In the absence of the ordinance the respondent company had no power or right to enter' upon the streets of the village and erect poles, string wires thereon and construct and operate its road by electricity upon and along such streets. These privileges constitute ample consideration if any could be deemed necessary. The privileges granted the respondent company by the terms of the ordinance have been and are being fully enjoyed by it. It cannot be.permitted to take and retain all advantages and benefits of the ordinance, and escape performance of duties to the public upon which its rights to such advantages and benefits are predicated upon the ground the ordinance and the duties imposed by it are ultra vires both the village and the respondent company.” , . ...

The defendants insist that the “ violation of law ” upon which the Commission may act, under section 57, involves only such offenses as are specifically mentioned in the written law. Recognizing that the law prohibits certain acts and requires the doing of other acts, the defendants claim that the jurisdiction of the Public Service Commissions extends only to such prohibitions or requirements as. are found ipsissimis verbis of some statute. As an instance of the cases over which the defendants would concede the jurisdiction of the Public Service Commissions they cite in their, brief the requirement to be found in section 98 of the Railroad Law * that street railroads must “have and keep in permanent repair that portion of such street * * * between its tracks, the rails of its

tracks, and two feet.in width outside of its tracks * * This

section is found in article 4 of the Railroad Law in connection with numerous other sections involving many petty matters of regula-

* See Laws of 1890, chap. 565, § 98, as amd, by Laws of 1893, chap. 676. See, . also, Consol, Laws, chap. 49 (Laws'of 1910, chap. 481), § 178.— [Re?, tion. In the same Railroad Law are to be found conferred upon the former Board of Railroad Commissioners and now vested in the Public Service Commissions matters relating to consolidations, leases, sales and reorganizations, involving joint agreements, protection of rights, assessment of the property of the new corporation, representation of stocks of municipal corporations, foreclosure of mortgages, powers of corporations organized to acquire and operate railroads partly in the State,- the leasing of roads and the acquisition of stock therein, as well as the consolidation and leasing of parallel lines.

There is no apparent reason why there should be a distinction drawn between the powers which relate to the petty violation above cited by the defense and the larger powers above referred to, all of which are included in the Railroad Law and have devolved, with respect to their execution, upon the Public Service Commissions. In fact there is little difference between testimony showing the obligation put upon street railway companies to keep streets in repair and testimony required in the case ■ at bar, where the public is asked to pay a nickel for riding through the "village of ¡New Brighton instead of paying two nickels for .the same service. In the former case procedure by complaint aud investigation, order and judgment for mandamus would be had, on the evidence of some eye-witness that the required portion of the street was not kept in repair. In the case at bar the Public Service Commission, after citing the parties before it, could introduce the two charters in evidence, prove non-compliance by the general manager of the two companies, and rest. Between these two cases, involving a small amount of testimony, is a wide zone, containing complicated cases and involving the taking of a large amount of testimony. In each case, however, the Public Service Commission is.given the power to act by injunction, if it shall so choose, or by direct actions if that method shall be selected. Analysis of the defendants’ position shows whát they attempt to make a question of power is merely a question of the amount of evidence which may be required; the latter involving, not a jurisdictional question, but length of tizne. Meeting the defendants, however, upon their own gzvmnd, it has been held that obligations of the nature which the defendants assumed are not merely violations of covenants, but are violations of law;

In a recent case in Illinois the whole matter was exhaustively considered and the conclusion was reached that the ordinance of a duly organized municipality was not, by reason of its origin, the mere resolution of the municipality, but was of equal quality with written law and was, with respect- to the penalties attaching to its violation, the equivalent of the written law. (Roby v. City of Chicago, 215 111. 604, 608.)

In the Roby case, although a mandatory injunction was denied' in part upon the 'theory that a taxpayer cannot maintain a bill in equity to compel a city to defend a suit against itself in a certain manner, the court took occasion to say: “ The city council, under the general Incorporation act, which is in force in the city of Chicago, has full power to pass an ordinance granting to a street railway company the right to operate its street railroad in the streets of the city, subject to such limitations as have been imposed upon such municipalities by the legislature, and in so doing may prescribe the terms and conditions upon which such company may occupy the streets of the city, with its tracks, cars, etc. The city, in passing such an ordinance, performs a legislative function, and in so doing acts as a governmental agency of the State, and the ordinance, when passed, has the force and'effect of a law of the State.”

In the case last cited the street railroad company had been organized by an ordinance duly passed by a municipality, and such ordinance represented the charter rights under which the railroad was operated. It was incorporated by no special act of the Legislature, nor did it possess through a charter or agreement any. right to exercise its franchises in the city of Chicago. Nevertheless, the learned court in its opinion used the very significant language- that the “ ordinance when passed has the force and- effect of a law of the State.”

In the case at bar the village of New Brighton granted charters to the defendants, not only by ordinance or resolution, but also by express agreement, executed by both parties,, the provisions of which were accepted and acted upon by each of the parties. With, how much greater force, therefore, under the language of the opinion in the Roby case, does the provision as to the interchange of passengers have “the force and effect of a law of the State,” and with how much stronger effect does the failure of the defendants constitute a violation of the law.

The only question in the case of. prime importance is whether the failure of the defendants to interchange fares is a violation of law, which, in my opinion, has been established not only by reason but upon authority.

Judgment for the petitioners in accordance- with this opinion, with costs. 
      
       See Laws of 1890, chap, 565, §§ 104 (105), 78, as respectively amd. by Laws of 1893, chap. 676, and Laws of 1905, chap. 695. See, also, Consol. Laws, chap. 48 (Laws of 1910, chap. 480), § 49, subd. 7; Consol. Laws, chap. 49 (Laws of 1910, chap. 481), § 148.—[Rrp. . ."
     
      
      See Laws of 1907, chap. 439, §§ 48, 57. See, also, Consol. Laws, chap. 48 ' (Laws of 1910, chap. 480), §§ 48, 57.— [Rep.
     