PEOPLE ex rel. JOLINE et al.
WILLCOX et al., Public Service Commissioners. PEOPLE ex rel. CENTRAL PARK, N. & E. R. R. CO.
Robert C. Beatty, for relators.
Oliver C. Semple, for respondents.
Argued before PATTERSON, P. J., and McLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
[113 N.Y.S. 862] PATTERSON, P. J.
The commissioners, constituting the Public Service Commission of the state of New York for the First district, have moved this court to quash or vacate a writ of certiorari issued out of the Supreme Court to review the action of the commission, which by an order made, as would appear, on the 30th day of October, 1908, established a through route for the transportation of passengers over a line of street railway operated by Messrs. Joline and Robinson, as receivers of the Metropolitan Street Railway Company, and a line of street railway operated by the Central Park, North & East River Railroad Company, two independent street railway corporations, and also established a joint fare for passengers upon such lines and apportioned it between the said corporations. Subsequently, and after a rehearing, the Public Service Commission made another order, apparently on the 11th day of November, 1908, by which they affirmed the order of October 30, 1908, except as to one provision not material to the present inquiry. The writ of certiorari was issued on the 12th of November, 1908, and thereupon the commission made this motion, under section 1348 of the Code of Civil Procedure, to vacate the writ.
That section provides, among other things, as follows:
" The Appellate Division shall have power to vacate or modify, without notice or upon such notice as it shall deem proper, any order in an action or special proceeding made by a justice of the Supreme Court or by the court without notice to the adverse party."
The relators have taken the objection to this motion that it should have been made in the first instance at the Special Term of the Supreme Court, for the reason that the provision made by section 2138 of the Code of Civil Procedure for a hearing of the cause at the Appellate Division limits the power of that branch of the court; and reliance is placed upon the cases of People ex rel. McNeary v. MacLean, 64 Hun, 205, 19 N.Y.Supp. 56, in which it is said that it is only the hearing of the merits which is to be had at the General Term, and People ex rel. Miller v. Peck, 73 A.D. 89, 76 N.Y.Supp. 328, where it is held that a motion to quash a writ was properly made at the Special Term. But in neither of those cases was attention drawn to the provisions of section 1348 of the Code, and it is within the knowledge of this court that applications to modify writs of certiorari have been entertained by the Appellate Division under that section without challenge, as in Matter of Tilyou, 57 A.D. 101, 67 N.Y.Supp. 1097, where such an application was considered and denied on the merits.
It is not claimed by the moving party that the action of the Public Service Commission in making the orders now brought to our attention is beyond some power of review by the courts, but it is insisted that such review may only be had in independent proceedings, either by way of injunction to restrain the commission from enforcing the order or by defense to an application made by the commissioners to compel compliance with it by mandamus or by defense to an action at law to enforce a penalty for a violation of it, and thus to bring before the court upon new evidence all questions that might [113 N.Y.S. 863] arise and could be litigated respecting the validity and enforceability of the order objected to. The question, therefore, now before the court, is whether a writ of certiorari may be issued to review the action of the commission in making the order complained of, or must the relators be remitted to some other remedy.
In the act of the Legislature constituting the Public Service Commission (Laws 1907, p. 889, c. 429) there is no specific method pointed out by which the action of that commission can be brought within the judicial cognizance of the courts of the state. There is no express provision made either for a review of its proceedings or for an appeal from its orders. The writ of certiorari is regulated, as to its allowance and all proceedings thereunder, by the Code of Civil Procedure, which provides for what may be called certain statutory writs, but which also preserves the common-law writ. Unquestionably the common-law writ can only be issued for the purpose of reviewing acts either judicial or quasi judicial in their nature, and official acts that are purely executive, legislative, administrative, or ministerial in their character are not subject to review by such writ. It is scarcely worth while to cite authorities to so elementary a proposition. The inquiry, therefore, now is whether the acts of the Public Service Commission in the proceedings which led up to and eventuated in the making of the orders now sought to be reviewed are purely and exclusively executive, legislative, administrative, or ministerial, or are judicial or quasi judicial.
In making the order now sought to be reviewed, the Public Service Commission acted under the authority of a provision of section 49 of the act instituting the commission (chapter 429, p. 917, Laws 1907), which in part reads as follows:
" The commission shall have power by order to require any two or more common carriers or railroad corporations whose lines, owned, operated, controlled or leased, form a continuous line of transportation or could be made to do so by the construction and maintenance of switch connection, to establish through routes and joint rates, fares and charges for the transportation of passengers, freight and property within the state as the commission may, by its order, designate; and in case such through routes and joint rates be not established by the common carriers or railroad corporations named in any such order within the time therein specified, the commission shall establish just and reasonable rates, fares and charges to be charged for such through transportation, and declare the portion thereof to which each common carrier or railroad corporation affected thereby shall be entitled and the manner in which the same shall be paid and secured."
The proceeding was within the terms of the statute. The commission acted upon its own initiative, as it was also authorized to do. The procedure was apparently in conformity with provisions of the act relating to that subject and rules and regulations which the commission was authorized to adopt. On the 2d of October, 1908, an order was made directing a hearing to be had before the commission of certain matters: First, whether a joint fare for passengers should be five cents per passenger, or, if such joint fare would be unjust and unreasonable, what joint fare should be established and put in force; second, to what portion of the joint fare each road should be entitled; third, how the portion allotted to each road should be paid [113 N.Y.S. 864] and secured. Hearings were had on various days. The receivers of the Metropolitan Company and the Central Park, North & East River Railroad Company were represented by counsel. Evidence was taken, argument had, and the matter submitted for the determination of the commission.
If we were to have regard only, on the present motion, to what appears in the petition and in the orders of the commission, it would be evident that their inquiry and action in the premises was judicial in its nature and that it was substantially acting as a court. It is true that it has been decided by courts of high authority that the mere fixing of rates by a commission intrusted with such a power by law is legislative in its character, as in the very recent cases of Prentis et al. v. Atlantic Coast Line Company (and companion cases decided November 30, 1908, by the Supreme Court of the United States) 29 Sup.Ct. 67, 53 L. Ed.176. In passing upon the nature of the powers devolved upon the State Corporation Commission of Virginia, Mr. Justice Holmes, writing the opinion of the court in those cases, remarks that whether the proceedings are to be regarded as legislative in their character or otherwise does not depend upon the dominant character of the body in which they may take place, but upon the character of the proceedings themselves. But looking beyond what is disclosed by the papers now before the court, and examining the act itself by which the Public Service Commission is established and its powers conferred, and having regard to the decisions of the courts in this state applicable to the subject, the conclusion seems to be necessary that the proceedings and order, the subject of the present inquiry, are judicial in their nature.
The commission, acting of its own motion, must necessarily have started with the inquiry as to whether the establishment of a through route is a matter of public convenience or necessity. That being ascertained, it proceeded to inquire and determine what should be a proper joint rate for the transportation of passengers over a combined route, then to apportion a joint fare between the corporations operating the ...