I think this case is controlled by our decision in Matter ofQuinby v. Public Service Commission (223 N.Y. 244; 227 N.Y. 601).
I do not say that it is beyond the power of the legislature, either directly or through a commission, to abrogate or modify the conditions of a franchise. If such a question were here, I might agree in that respect with Judge McLAUGHLIN. Because it is not here, I conceive that we are not at liberty to express an opinion on the *Page 339 subject. The courts of this state do not act as the advisers of the legislature to define its powers in advance (Matter of StateIndustrial Commission, 224 N.Y. 13). When a statute has been passed, and the legislature has thus construed its powers for itself, we pay much heed to the construction, and nullify the statute only if a case is presented in which "there can be no rational doubt" (People ex rel. Carter v. Rice, 135 N.Y. 473,484; Oswego Syracuse R.R. Co. v. State, 226 N.Y. 351, 362). It is, however, "unnecessary and, therefore, improper" (Matterof Quinby, 223 N.Y. at p. 263) to determine the limits of a power which there has been no attempt to exercise. "We deal with the particular instance; and we wait till it arises" (Matter ofState Industrial Commission, supra).
We held in the Quinby case that the instance had not arisen yet. Our ruling was that the legislature had not yet attempted to delegate to the public service commission the power to abrogate conditions in respect of fares, contained in franchise agreements between municipalities and railroads, when the agreements were already in existence at the adoption of the statute. The judges now dissenting attempt to limit the application of that ruling to the city of Rochester, where the controversy arose. No such limitation was suggested as the basis of the decision either when the case was first decided (223 N.Y. 244) or upon the motion for re-argument (227 N.Y. 601) or in other opinions in which its meaning has been restated (People ex rel. Village of South GlensFalls v. P.S. Comm., 225 N.Y. 216; Matter of Int. Ry. Co. v.P.S. Comm., 226 N.Y. 474). No such limitation, if suggested, would have been reasonable. Section 173 of the Railroad Law has no bearing upon the powers of the commission in respect of rates; it defines the terms upon which franchises are to be granted in the future. The act of 1915 (L. 1915, ch. 359, sec. 7) has no bearing: it withdrew from the commission no power that would *Page 340 otherwise have been there; indeed, our decision was that in so far as rates were fixed by that act rather than by agreement with the city, the public service commission had power to increase them (227 N.Y. 601, 602). I find myself unable to assent to the conclusion that by the true construction of the Quinby case, the city of Rochester has been singled out as the sole spot within the length and breadth of the state in which the process of the commission will not run, and in which its mandate must be halted. Such a reading of the opinion under-rates the capacity of the members of the court to give expression to their meaning. Untenable, too, is the suggestion that the Quinby case has been overruled by the later cases which have limited it (People exrel. Village of South Glens Falls v. P.S. Comm. [Jan. 1919];Matter of Int. Ry. Co. v. P.S. Comm. [July, 1919], supra). With those cases decided, and sharply pressed upon our notice, we denied, less than nine months ago, a motion for re-argument (Matter of Quinby, 227 N.Y. 601, Oct. 21, 1919), and restated our earlier ruling.
The Quinby case cannot be distinguished. It has not been overruled. The only question remaining is whether we shall overrule it now. The single point decided was one of statutory construction. Since that decision was announced, three successive legislatures have been asked to confer upon the public service commissions the power which in our view of the existing statute had been theretofore withheld. In each year the bills embodying the proposed enlargement of jurisdiction failed. The public service commission for the first district has in the meanwhile been reconstituted with its existing powers, and no others (L. 1919, ch. 520; People ex rel. Outwater v. Green, 56 N.Y. 466,475; Fifth Ave. Bldg. Co. v. Kernochan, 221 N.Y. 370, 375). We said that the legislature had a certain intention when it enacted a certain statute. The legislature by what it has done and by what it has refused to do, has said that we read *Page 341 the intention truly. We are now asked to say, in despite of all this, that we read the intention wrongly. The Quinby case, kept within the limits of the point actually decided, has entered, I think, into the body of the statutory law through reiterated recognition by this court, and through tacit legislative approval. If the legislative intention has been misread, the legislature by amendment must say so, and set the reading right.
My vote is for affirmance.