Supreme Court, April, 1921. [Vol. 115. couraged; that as mayor of said city he has been and is in good faith exercising his judgment and discretion in the premises and believes it would be an injustice upon the public if any steps were taken which would deprive them of adequate transportation; that the whole question of adequate, just and reasonable transportation service in the city should be decided by the public service commission. The learned corporation counsel in an argument and brief showing industry, research and ability, strenuously asserts that these are valid objections to the writ herein sought. Some of the principles formulated by him find support in the authorities, but fall very far short of sustaining his contention that the relator is not entitled to the relief sought. In his brief he urges a still further objection that the special interest of the relator is not set out in the petition and that for this reason alone his petition should be dismissed. His contention is that the relator having proceeded to argument upon his petition and the opposing affidavits of the respondent, the proceeding is in the nature of a demurrer to the facts set up by the defendant and the right to the writ must be determined upon the assumption that the averments of the defendant's affidavits are true. Citing People ex rel. City of Buffalo v. New York Central & Hudson R. R. R. Co., 156 N. Y. 570. He claims that it appears from the answering affidavits that the relator is seeking to enforce the private interests of the United Traction Company, and that in such a case the special interest of the United Traction Company must be set out in the petition and its private right to relief must be made clearly to appear. Citing People ex rel. Pumpyansky v. Keating, 62 App. Div. 348, reversed on other grounds, 168 N. Y. 390. Mise.] Supreme Court, April, 1921. His citation of this authority is an unfortunate one for his contention, as I shall endeavor to show. Both the Appellate Division and the Court of Appeals sustain the proposition that an application for a peremptory writ of mandamus commanding the commissioner of highways of the city of New York to remove a stand for the sale of newspapers and periodicals upon a street of the city, is a proceeding to enforce a right in which the general public is interested and may be maintained by a citizen and resident of the city; that it was a right in which the general public is interested, to wit, that the streets of the city shall remain unobstructed and unencumbered. The case was reversed by the Court of Appeals in order that a new trial might determine to what extent, if any, there was an encroachment upon the traveled portion of the sidewalk. In the opinion of the Appellate Division on this point, which was expressly approved by the Court of Appeals, the court referred to the rule that where the relator seeks to enforce a private right, his special interest must be set out in the petition and his right to relief must be made clearly to appear, but the court said that this rule was not applicable in that case, saying at page 350: "It is plain that the relator has standing to maintain this proceeding. The right which the writ seeks to enforce affects the general public, and, under such circumstances, the enforcement of the right, is the concern of every citizen, and no special interest, except that of the general public, need be shown." The contention of the corporation counsel is based upon a theory which is untenable. His theory is that the enforcement of section 26 of the Transportation Corporations Law deals only with the question of a vehicle carrying passengers in competition with another common carrier which is required by law to Supreme Court, April, 1921. [Vol. 115. obtain the consent of the local authorities of the city to operate over the streets thereof. The fact is, how-. ever, that no question of competition with such a common carrier is necessary to be determined in connection with this decision. In my decision recently rendered in the case of United Traction Co. v. Smith, 115 Misc. Rep. 73, I called attention to the authorities as to the variety of cases covered by said section 26. For example, I called attention to the carefully prepared opinion of Mr. Justice Brown in Public Service Commission v. Hurtgan, 91 Misc. Rep. 432, in which, at page 435, he graphically outlines the cases in which a license must be obtained. Mr. Justice Brown states that the statute requires such consent for the operation in a city of either "(a) A bus line, "(b) A stage route, "(c) A motor vehicle line or route, "(d) A vehicle in connection with a bus line, a stage route, a motor vehicle line or route, "(e) A vehicle carrying passengers at a rate of fare of fifteen cents or less within the limits of a city. "(f) A vehicle carrying passengers in competition with another common carrier which is required by law to obtain the consent of the local authorities of said city to operate over the streets thereof. "The statute is that to lawfully operate any one of the above six specified lines, routes or vehicles, in a city, the consent of the local authorities and a certificate of the Public Service Commission must be first obtained, provided such line, route or vehicles, are engaged in the business of carrying passengers for hire in the city." The petition herein in paragraph 4 makes no reference to vehicles carrying passengers in competition Misc.] Supreme Court, April, 1921. with another common carrier, but refers to the unlawful operation of motor vehicles as bus lines, stage routes and motor vehicle lines carrying passengers for hire at a rate of fifteen cents or less for each passenger. The mere fact that one of the incidental effects of the operation of these vehicles is to compete with another common carrier of which the relator is the vice-president is beside the question, if the relator is seeking to enforce a right in which the general public is interested, which is clearly the case here. In order that we may clearly see that this proceeding is not one sounding in the private interest of the United Traction Company of which the relator is the vice-president, but in the interest of the general public, it may be very beneficial to consider the history and terms of section 26 of the Transportation Corporations Law, in order that we may understand the purpose which the legislature sought to serve. Prior to 1913 there was no express provision in the statutes with reference to bus lines being deemed to be included within the meaning of the term "common carrier" as used in the Public Service Commissions Law, except under section 24 of the Transportation Corporations Law, which related to any person or corporation owning or operating any stage route in any city of 1,000,000 inhabitants or more, namely, the city of New York. By chapter 495 of the Laws of 1913, section 25 was added to the Transportation Corporations Law. Section 25 enlarged the jurisdiction of the public service commission by prescribing that any person or corporation owning or operating a bus line wholly or partly along a highway constructed wholly or partly at the expense of the state, or along any highway in any city of the first class other than New York city, should be deemed a common carrier within the meaning of Supreme Court, April, 1921. [Vol. 115. that term as used in the Public Service Commissions Law. Then by chapter 667 of the Laws of 1915, section. 25 was amended and section 26 was added to the Transportation Corporations Law. By this amendment and addition to that statute, the jurisdiction of the public service commission was further extended to any bus line or motor vehicle line or any vehicle carrying passengers at fifteen cents or less each within the limits of any city or in competition with another common carrier which is required by law to obtain the consent of the local authorities of the city to operate over the streets thereof. But this addition to the statute went beyond the proposition of making such common carrier subject to the jurisdiction of the public service commission and 'required such bus line or other vehicle line above described, to obtain the consent of the local authorities of said city, "upon such terms and conditions as said local authorities may prescribe." The operation of any such bus line or motor vehicle line or motor vehicle above described was prohibited without first obtaining the consent of the local authorities and without obtaining in addition thereto a certificate of public necessity and convenience from the public service commission. It was not necessary to provide in section 26 for such certificate of necessity and convenience, because that was not only provided for in section 25 of the Transportation Corporations Law, but was provided for in section 53 of the Public Service Commissions Law, under which a common carrier was prohibited from exercising any franchise or right under any provision of any law without first having obtained the permission and approval of the public service commission to the effect that the exercise of such franchise or privilege is necessary or convenient |