The power of the Public Service Commission to grant a certain certificate of convenience and necessity is here challenged. Under section 20 of the Transportation Corporations Law a corporation was organized to operate omnibuses upon public streets in the city of Long Beach. It is, therefore, a "common carrier" within the meaning of the Public Service Commissions Law and it must obtain the consent of the city, given by the common council "acting subject to the power now possessed by the mayor to veto ordinances." It must also obtain the certificate mentioned, but this may not be received until "after public notice and a hearing, the consent of the local authorities" of Long Beach has been procured. Only then may its line be operated. (Transportation Corp. Law, secs. 25, 26; Railroad Law, sec. 171.)
It is claimed that this local consent is a prerequisite to any action on the part of the Commission. Should it appear, therefore, that it has not in fact been given because a favorable ordinance or resolution has been vetoed by the mayor; because there has been no public notice or hearing; because some provision of a city charter as to the method of adopting ordinances has been neglected; because for any reason the consent is invalid; then the Commission has no jurisdiction. It is required to determine for itself, as a preliminary matter, questions of law and fact, often, as here, numerous; often doubtful.
Such was not the intent of the Legislature. There was no design to turn the attention of the Commission from its appropriate and exacting duties. In one section a corporation is required to obtain a certificate. In the next it is forbidden to operate until it has procured local consent, nor receive the certificate until it has done so. Here is no hint of a limitation of the jurisdiction of the *Page 494 Commission. Had such been designed it naturally would have been placed in section 25 or in some part of the Commissions Law. At least it would have been plainly expressed in this paragraph, not left to inference from a casual statement. The injunction that the consent shall not be received by the petitioner until the consent is procured may not be so extended. The word "receive" may have been inapt. Yet one meaning is "to be affected by the thing transmitted." Here two distinct prerequisites to the operation of omnibuses over city streets are specified, the certificate and the consent. The corporation may not take delivery of the former, it may not accept it when offered in the sense of treating it as alone adequate for its purposes. The whole purpose of section 26 is to indicate that local consent is necessary and that it may be given subject to terms, not to fix the time when it shall be obtained. It is also to prohibit beyond question all operation until compliance with every condition imposed by statute.
In the record is a concession that public convenience and necessity would be promoted by the grant of this certificate. I think that to be the sole question with which the Commission deals. Its action was, therefore, right. If in truth the corporation has never obtained the consent of the local authorities, then until it does so it may not operate in the public streets of the city. Such a dispute is to be settled elsewhere.
The judgment of the Appellate Division should be affirmed, with costs.
CARDOZO, Ch. J., POUND, CRANE and O'BRIEN, JJ., concur with KELLOGG, J.; ANDREWS, J., dissents in opinion, in which LEHMAN, J., concurs.
Ordered accordingly. *Page 495