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Misc.]

Supreme Court, April, 1921.

In such case, neither a direction of the public service commission to its counsel to proceed under section 48 or section 57 of the Public Service Commissions Law, which means that each individual operating a jitney unlawfully must be proceeded against separately, or to conduct a summary proceeding in the Supreme Court to have the unlawful act enjoined, can, in the extraordinary situation presented here, be deemed an adequate remedy. (Pp. 148-150.)

Violations of the provisions of section 26 of the Transportation Corporations Law are punishable as misdemeanors under section 29 of the Penal Law. (P. 139.)

APPLICATION for peremptory writ of mandamus.

Sanford & Alexander (Rollin B. Sanford, of counsel), for petitioner.

John J. McManus, Corporation Counsel, for respondent.

HINMAN, J. This is an application for a peremptory writ of mandamus. The relator, Harry B. Weatherwax, makes the application as a citizen of the state and a resident of the city of Albany. The petition asks for a writ of mandamus directed to James R. Watt, as mayor of the city of Albany, requiring him to enforce within the city of Albany those provisions of section 26 of the Transportation Corporations Law which prohibit bus lines or any vehicles carrying passengers at a rate of fare of fifteen cents. or less for each passenger within the limits of the city from operating along the streets of the city without procuring the consent of the local authorities and of the public service commission.

It appears, without dispute, that Albany is a city of the second class; that by section 54 of the Second Class Cities Law it is expressly made the duty of the mayor to see that the city officers and departments

Supreme Court, April, 1921.

[Vol. 115.

faithfully perform their duties, to maintain peace and good order within the city and to take care that the laws of the state are executed and enforced within the city; that for at least six weeks more than 500 motor vehicle lines of the character described in section 26 of the Transportation Corporations Law have been and now are being operated upon the public streets of Albany without the consent of the local authorities and without a certificate of public necessity and convenience from the public service commission; that all of said motor vehicle lines have so operated and are continuing to so operate without being in any manner prevented or restrained by the said mayor or by the city officers, or departments under him; that the said violations of law are and have been during the whole period open, notorious and general throughout the city; that the persons operating said vehicles have during all said times and now continue to openly and publicly call out their routes and the fares and solicit passengers, and display signs on their vehicles indicating the route, the rate of fare and destination of the route, all in the most public places of the city and the most frequented streets and in the presence and hearing of the members of the police department of the city; that the acts of said persons and the operation of said motor vehicle lines are so open and notorious and have been so long continued that the said mayor is chargeable with knowledge thereof; that in fact on several different dates from March 25 to April 5, 1921, the relator notified the said mayor that hundreds of said auto lines were being operated unlawfully in the city of Albany and requested the said mayor to enforce the law; but that on the 5th of April, 1921, the said mayor informed the relator and announced to the public of said city that he refused to stop the operation of said motor

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Supreme Court, April, 1921.

vehicle lines and gave as his reason the advice of the corporation counsel of said city that such acts of the persons so operating did not constitute a crime punishable as a misdemeanor.

Supporting affidavits, also uncontradicted, reveal about fifty concrete illustrations of violators, giving the name of owner, license number, type of vehicle and signs displayed showing route and fare. The affiants swear to having taken repeated trips upon them as passengers, paying the fare prescribed and travelling over the routes described by their respective signs.

The answer of the said mayor raises no issue as to any of the foregoing facts. It is conceded upon the papers before me that the provisions of section 26 of the Transportation Corporations Law are being and have been for a long period violated in a wholesale, open and notorious manner, so glaringly a matter of common knowledge that the court might even take judicial notice of the fact.

In fact the answer of the said mayor is wholly a plea in the nature of a confession and avoidance. He says that the relator is vice-president of the United Traction Company, which operates a street railway in the city of Albany and elsewhere; that said traction company has not been granted an exclusive franchise to transport passengers for hire upon the streets of Albany; that because of a strike of its employees, said traction company ceased operations on all of its lines in said city on January twenty-ninth last and did not attempt to resume operations until an order was made by the public service commission, effective February 8, 1921, requiring it to resume operations and to furnish safe and adequate service; that no service at all has been furnished by said traction company from January 29, 1921, to date on its Second avenue and Livingston avenue lines and that adequate

[Vol. 115,

Supreme Court, April, 1921.

service for the entire traveling public has not been furnished upon its other lines and is not now being furnished by it; that the number of cars now being operated in the city is about thirty-five as against about eighty cars usually operated in the city prior to the strike; that the enforcement of section 26 of the Transportation Corporations Law is in the first instance wholly within the jurisdiction of the public service commission; that such commission has general supervision of all common carriers and has sole jurisdiction to determine in the first instance whether the operation of said motor vehicle lines is a violation of said section 26; that he is informed by his corporation counsel that a violation of said section 26 is not made a crime by any statute but on the contrary every owner or operator of such a motor vehicle line is expressly made subject to the provisions of the Public Service Commissions Law; that the Public Service Commissions Law and the Transportation Corporations Law are in pari materia and that sections 25 and 26 of the Transportation Corporations Law are to be considered as incorporated in the Public Service Commissions Law and are a part thereof; that by section 56 of the Public Service Commissions Law, any common carrier violating section 26 of the Transportation Corporations Law shall forfeit to the people of the state not to exceed $5,000 for each offense; that there is no provision in either of said statutes providing that any such common carrier shall be guilty of a crime for any violation of either of said statutes; that the duty of owners of such motor vehicle lines to obtain such local consent and certificate was a new duty imposed by the Laws of 1915 and not required prior to that time and that in such a case, if a penalty and mode of procedure be given by the

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Supreme Court, April, 1921.

same statute for its violation, the remedy given is exclusive.

The said mayor thus denies that a crime is being committed by violation of section 26 of the Transportation Corporations Law; denies that he has any right to stop the operation of the said motor bus lines by reason of his having no jurisdiction to enforce within the city of Albany the observance of any of the provisions of said section 26, and alleges upon information and belief that any person including the members of the police force who might cause or instigate the arrest of any of the persons mentioned in the petition for an alleged violation of said section. 26 would be liable in damages in a suit for false imprisonment or malicious prosecution, in the event that it should thereafter be determined that any violation of said section does not constitute a crime.

He further contends that by the Second Class Cities Law the commissioner of public safety has supervision and control of the police department of the city and that said commissioner of public safety is a necessary party defendant.

He further objects to being required to enforce this statute upon the ground that the petitioner and each and every citizen has an adequate remedy at law, if misdemeanors are being committed, in that the petitioner or any citizen may lay any information before a magistrate and procure a warrant for the arrest of any violator.

And finally, the said mayor alleges upon information and belief, that the said traction company is not affording reasonable, just and adequate transportation upon its lines within the city and that an emergency has been created in which others must engage in the transportation of passengers so that business within the city shall not be entirely blocked or dis

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