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People ex rel. Karl v. United Traction Co.

Supreme Court of New York, Appellate Division

June 28, 1911

THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE KARL and EDWARD W. ESPENLAUB, Appellants, for a Mandamus
v.
THE UNITED TRACTION COMPANY, Respondent.

Page 646

APPEAL by the relators, George Karl and another, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 30th day of July, 1910, denying the relators' motion for a writ of mandamus compelling the respondent to reconstruct its street railway to the village of West Albany in Albany county, New York.

COUNSEL

Henry J. Crawford, for the appellants.

Patrick C. Dugan, for the respondent.

SMITH, P. J.:

The Albany Railway was incorporated in 1863 under the General Railroad Act of 1850. Its charter designates its route through certain streets of the city of Albany 'and the highway to the village of West Albany.' West Albany is an unincorporated village and is separated from Albany by the tracks and yards of the New York Central and Hudson River Railroad Company. In 1863 the common council of the city of Albany passed a resolution giving the Albany Railway permission to construct its line through the streets of Albany to the village of West Albany. In 1872 the Albany Railway did construct a line into West Albany, crossing the tracks of the New York Central by means of a wooden bridge. In 1890 this wooden bridge was replaced by an iron bridge, at which time the tracks were removed from the wooden bridge and were never replaced, and since which time the terminus of the road has been about 200 feet east of the said bridge. The respondent here succeeds to the rights and obligations of the Albany Railway.

Prior to this application these relators made application to the Public Service Commission of the Second District to compel the respondent to reconstruct its railway into West Albany. This application was denied by the Public Service Commission, apparently upon the ground that the respondent had no franchise

Page 647

to construct its road into West Albany. Without seeking to review this determination of the Public Service Commission, that proceeding was abandoned and the relators made this application for a mandamus, which has been denied by the order appealed from.

The respondent first contends that this proceeding can be initiated only by the People of the State, and does not lie in behalf of an individual relator. In Matter of Brooklyn Elevated Railroad Company (125 N.Y. 434) the proceeding was to condemn certain lands. The counsel for the landowner contended that by the act of incorporation the road was to be commenced and completed within certain times, and in default thereof it should 'forfeit the rights acquired by' it under the acts. The court held that a failure to perform the conditions specified in the act did not ipso facto dissolve the corporation, but the corporation was thereby 'simply exposed to proceedings, on behalf of the State, to establish and enforce the forfeiture.' The opinion then reads: 'The State which gave the corporate life may take it away. The State which imposed the conditions may waive their performance, and the corporate life may run on until the State, by proper proceeding, intervenes and enforces the forfeiture. Until the State does thus intervene, a private individual cannot set up the forfeiture or in any way challenge the corporate existence with its full vitality.' To this statement of the law many authorities are then cited. In Trelford v. Coney Island R. R. Co. (5 A.D. 464) the plaintiff sought to restrain the defendant from constructing its road upon Neptune avenue in the city of Brooklyn. It was held in that case that as plaintiff had no property interest in Neptune avenue he could not maintain the action, the court saying: 'The plaintiffs, therefore, have no interest in the fact of abandonment except such as is common to all the people. The matter affects public interests only, and the fact can be made the basis of an action against the corporation only when brought by the Attorney-General in the name of the people. (People v. Albany & Vermont R. R. Co., 24 N.Y. 261; Matter of N.Y. Elevated R. R. Co., 70 N.Y. 327.)' In Matter of New York Elevated R. R. Co. (70 N.Y. 327) it is held: 'A cause of forfeiture

Page 648

cannot be taken advantage of or enforced against a corporation, collaterally or in any other mode than by a direct proceeding against the corporation for that purpose. The government creating the corporation can alone institute the proceedings, and it can waive a forfeiture; this it can do expressly, or by legislative acts recognizing the continued existence of the corporation.' In City of New York v. Bryan (196 N.Y. 158) it was held that the legal status of a street railroad franchise should be determined only in a litigation between the People of the State from whom the franchise sprang and the claimants thereto, so that the determination should be binding and conclusive upon everybody. In People ex rel. Lehmaier v. Interurban R. Co. (85 A.D. 407) the head note reads: 'A resident and citizen of the State of New York is not entitled to a writ of mandamus requiring a domestic street surface railroad corporation, operating connecting lines of street railway in the city of New York, to perform its statutory obligation to carry, for a single fare, any person desiring to make a continuous trip over such connecting lines, where it appears that such citizen has never been denied the right which he seeks to enforce, but that the proceeding is instituted on behalf of the public generally, and that, under the Railroad Law, the Railroad Commissioners and the Attorney-General have ample power to protect the rights of the public in the event of the refusal of the railroad corporation to perform a duty incumbent upon it.' The opinion in part reads: 'The relator, so far as appears, had been denied no right to which he is entitled. He seeks to enforce in this proceeding the right that the People have to require the defendant to obey the law under which it exercises certain franchises in the city of New York. Whether or not the defendant should comply with these provisions of law is generally a question for the State to determine, and not for an individual, and the statute which imposes this obligation provides the method of its enforcement. By the Railroad Law (Laws of 1890, chap. 565, as amended) there is constituted a Board of Railroad Commissioners, which is required to examine railways and keep informed as to their condition and the manner in which they are operated for the security and accommodation

Page 649

of the public, and to enforce a compliance with the provisions of their charters (§ 157); and if in the judgment of the board it shall appear that any railroad corporation has violated any constitutional provision or law, or has neglected in any respect to comply with the terms of the law by which it was created, or has refused to comply with the provisions of any law, or with any recommendation of the board, it shall give notice thereof in writing to the corporation, and if the violation, neglect or refusal is continued after such notice, the board may forthwith present the matter to the Attorney-General, who shall take such proceedings thereon as may be necessary for the protection of the public interests. (§ 160.) Section 162 (as amended by Laws of 1892, chap. 676) provides that the Supreme Court, at Special Term, shall have power, in its discretion, in all cases of decisions and recommendations of the board which are just and reasonable, to compel a compliance therewith by mandamus, subject to an appeal to the General Term (Appellate Division) and to the Court of Appeals. Ample provision is thus made for the enforcement of the obligations imposed upon the railroad corporations by the Railroad Commissioners and the Attorney-General on behalf of the People of the State.' In that case Justice INGRAHAM proceeds to discuss the right of a private individual to a writ of mandamus to compel the exercise of a public duty, and he distinguishes People ex rel. Pumpyansky v. Keating (168 N.Y. 390), which is the case most relied upon in support of relators' right to maintain this proceeding. In People v. N.Y. C. & H. R. R. R. Co. (28 Hun, 543) the proceeding was for mandamus to compel the defendant by mandamus to exercise its franchise. Presiding Justice DAVIS, in writing for the court, there said: 'The State, in such a case as this, has no other adequate remedy. It may proceed, it is true, to annul the corporation, as has been held in many cases where corporations had neglected public duties. * * * But that remedy is not adequate, for it only destroys functions where the public interests require their continued existence and enforcement. It has, therefore, an election which of these remedies to pursue. * * * Undoubtedly a sound discretion is vested in its law officer to decide whether the exigency is such as to call for the use of either remedy, as it

Page 650

is ultimately for the court to judge whether the elected remedy should be applied.'

Under these authorities it would seem that these relators had no private injury, no injury that was not common to all the inhabitants of West Albany. The grievance is a public one, to be enforced within the authorities by the People of the State through their constituted authority and by them only. If, as seems to have been held, the State may waive a condition of the franchise, or is vested with a discretion whether or not to proceed, it would seem to follow of necessity that a private individual could not enforce such a condition, especially a private individual who complains of no injury that was not his in common with the people of the whole community.

But this order should be sustained upon another ground. The Public Service Commission is given by statute the general supervision of all railways within their jurisdiction. It has full power of investigation to ascertain if said railroads are wholly complying with their statutory obligation. It is provided by section 57 of the Public Service Commissions Law (Laws of 1907, chap. 429; Consol. Laws, chap. 48; Laws of 1910, chap. 480) that when either Commission should be of opinion that a street railroad corporation is failing or omitting to do anything required of it by law, it shall direct its counsel to commence an action or proceeding in the Supreme Court of the State in the name of the Commission, to have such violations or threatened violations stopped and prevented either by mandamus or injunction. The proceeding before the court is by that section made summary, and the final judgment directed, ordering either a writ of mandamus or a writ of injunction, or both, as may be necessary to effectuate the relief sought. Assuming for the argument that the Attorney-General may still bring an action in behalf of the People of the State, there is given to the public an additional security in the guardianship of this Public Service Commission, which may apply for such relief in an action or proceeding wholly independent of the Attorney-General. With these two agencies for relief given to the people of West Albany, to compel the defendant to exercise its full franchise, even if this proceeding by private relator be authorized, the court might well withhold from him

Page 651

its relief as a matter of discretion until the Public Service Commission had investigated the matter upon proper complaint made, and had determined whether in its discretion the proceeding should have been instituted. This rule might well have been held by the court, even though no application had been made to the Public Service Commission. It should be more rigidly applied, however, where an application has been made to this Commission for this same relief and has by the Commission been denied. While the order of the Public Service Commission refusing the relief does not state the ground of refusal, it may perhaps be inferred from the opinion written that the refusal was upon the ground of want of power. That determination, however, was subject to review of the Appellate Division, in which case if the Appellate Division had been of opinion that the defendant's franchise authorized the construction of the road into West Albany, the matter would have been remitted to the Commission to exercise its discretion to act further upon the law as thus construed. Whether, therefore, this order has been refused as matter of law or as matter of discretion, we see no sufficient reason for reversing the conclusion of the learned justice at Special Term. It also becomes unnecessary to construe the defendant's franchise or to determine its right or duty thereunder to extend its tracks into West Albany.

SEWELL, J., concurred; KELLOGG, J., concurred on the ground last stated; HOUGHTON, J., concurred on the first ground stated; BETTS, J., dissented, in opinion.

BETTS, J. (dissenting):

The petition of the relators alleged that each of them was a real estate owner, taxpayer and resident of the village of West Albany, town of Colonie, Albany county, N.Y. ; that the Albany Railway was incorporated September 14, 1863, under and in pursuance of an act entitled 'An act to authorize the formation of railroad corporations and to regulate the same,' passed April 2, 1850, being chapter 140 of the laws of that year. The petition further recited that the certificate of incorporation ...


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