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for the public service. Presumably for the sake of harmony of the statutes, however, and out of an abundance of caution, section 26 provided for a prohibition against operating any such bus line, etc., until the receipt of a certificate of public necessity and convenience.
It is plain that section 26 of the Transportation Corporations Law was enacted by the legislature for the purpose of conferring upon the local authorities of any city the right and the duty to regulate and prescribe the terms under which such bus lines, etc., should be operated over the streets of such city, and to afford the protection of the city's property, its pavements, improvements and bridges, together with the protection of the passengers of such bus lines and all other persons using such streets, which such regulation and control would provide.
In other words it was a general provision in the interest of the public welfare, in the upkeep of the streets and in the protection of the passengers and in the protection of other users of the streets by vehicle or as pedestrians, that section 26 was passed. Incidentally, of course, the regulation of these bus lines tended to and does result in the protection of the investment of those who were operating railway lines under a legal franchise from unjust and improper competition, because of the financial loss resulting and the destruction of the service guaranteed to the public through the supervision of such existing railway lines by the public service commission. The intent was that all common carriers should be subject to the same supervision by the public service commission, but so far as the protection of an existing common carrier from improper competition was concerned, that matter was left entirely to the Supreme Court, April, 1921.
public service commission and not to the local authorities.
Thus I would say that the duty which was delegated to the city was a duty in the public interests rather than a duty relating to the question of competition with another common carrier. The fact is that if there were no railway lines in the city of Albany or if a new section of the city were being built up and which was not convenienced by any existing transportation lines, it would nevertheless be the duty of the city to require any bus line to obtain the consent of the city upon such terms and conditions that the city might prescribe before such bus line could operate lawfully. It is not a question of competition so far as section 26 is concerned; it is a question of the protection of the public interests and section 26 sets forth some of the terms and conditions which may be included by the city as pre-requisites to the granting of the franchise, namely,
(A) Description of route. (B) Rate of speed.
(C) Compensation for wear and tear of pavement, improvements and bridges.
(D) Safeguarding passengers and other persons using the streets over which such vehicles are to operate.
(E) The execution and delivery of a bond to provide adequate security for the performance of the terms and conditions of such consent, including adequate security for the payment of any damages occurring to any person on account of the operation of such bus line or route, such as passengers and other persons using the streets.
Each one of these terms and conditions for the local consent prescribed by the city, speaks in terms of public protection and not in the interest of any com
peting carrier. Thus I would say that section 26 was put in the statute, not for the purpose of giving to the public service commission any jurisdiction, but to provide for local consent upon such terms as would protect the local public and the local property.
A strike of the employees of a local railway company has led to the operation of the so-called “ jitneys " upon the streets of the city of Albany, but the provisions of section 26 have no relation whatsoever to the question whether or not adequate railway service is being rendered by such traction company, or whether a strike is in existence as to the justice of which public opinion is divided. It is solely a question of the performance of public duty in the carrying out of a statute designed entirely to protect the city streets and the users of the city streets. A legal method for such protection has been devised by this statute and if an emergency of any kind exists, it can be met in the same legal way.
The fact that these bus lines are made common carriers and thus subject to the public service commission, is a thing separate and distinct from the fact that the local authorities have had conferred upon them by statute a power and a duty, not conferred upon the public service commission, to prescribe the terms and conditions which will protect the city's property and all persons using the streets of such city, to prescribe regulations which will tend to prevent injury so far as possible and indemnify against such damage as may result notwithstanding such regulations.
So 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 Supreme Court, April, 1921.
the concern of every citizen, and no special interest, except that of the general public, need be shown."
The basic reason urged by the corporation counsel for, withholding the relief asked for by the relator is that the acts alleged in the petition do not constitute crime under the laws of the state of New York. I have already expressed the opinion that the operation of such unauthorized jitneys is contrary to statute and that it is punishable under section 29 of the Penal Law. I think my declaration to that effect was not obiter, but was warranted by the record before me and by the arguments made and by facts of such quantity and notoriety that the court might well take judicial notice of them. United Traction Co. V. Smith, 115 Misc. Rep. 73. However that may be, the corporation counsel has considered my holding in that case as not necessary to my decision and has since advised the mayor in a written opinion that the offense is not punishable as a crime, courteously holding that I did not have the benefit of a full discussion of the question by counsel. : There is no provision in the Transportation Corporations Law imposing any penalty for a violation of section 26 of that statute. The Penal Law provides, however, in section 29 thereof as follows:
“§ 29. Violation of statute which imposes no penalty is a misdemeanor. Where the performance of any act is prohibited by a statute, and no penalty for the violation of such statute is imposed in any statute, the doing such act is a misdemeanor."
Section 1937 of the Penal Law provides as follows:
“§ 1937. Punishment of misdemeanors when not fixed by statute. A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this chapter, or by any other statutory provision in force at the time Misc.]
Supreme Court, April, 1921.
of the conviction and sentence, is punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both."
It is plain that no penalty for the violation of section 26 of the Transportation Corporations Law has been imposed under that law. The corporation coun-'. sel contends, however, that a penalty has been prescribed for such violation by section 56, subdivision 1, of the Public Service Commissions Law, upon the theory that the Public Service Commissions Law and the Transportation Corporations Law are in pari materia, that is, statutes which must be read together.
Section 56, subdivision 1, of the Public Service Commissions Law provides that: “Any common carrier, * * * which shall violate any provision of this chapter, or which fails, omits or neglects to obey * * * any order * * * of the commission, shall forfeit to the people of the state of New York, not to exceed the sum of five thousand dollars for each and every offense * * *."
It is to be noted that section 56, subdivision 1, of the Public Service Commissions Law imposes a penalty for a violation of any provision of the Public Service Commissions Law or of an order of the commission.
A penalty for the violation of any provision of the Public Service Commissions Law is clearly not a penalty prescribed for a violation of the Transportation Corporations Law or of any law, other than the Public Service Commissions Law.
Perhaps the corporation counsel has been misled by the thought expressed by him in the answer of the respondent to the effect that in the construction of the two statutes in question, sections 25 and 26 of the Transportation Corporations Law are to be con