I dissent. I expressed my opinion as to the right of the relator to exercise this franchise in my dissenting opinion in 117 Appellate Division, 92. I do not understand that the right of the relator to exercise this franchise was passed upon by the Court of Appeals upon the appeal to that court reported in 188 New York, 364, except so far as it held that objections could be taken by the People or the city, and not by the defendant, in that proceeding. The Public Service Commission, the defendants here, are a Commission organized by the State, as what the Court of Appeals calls “ the guardians of the public,” to prevent the issue "of stock for other than • statutory purposes. (People ex rel. D. & H. Co. v. Stevens, 197 N. Y. 1.) It is the State that is now being proceeded against to compel its officials, with whom it has vested certain discretionary powers, to- consent to the exercise by the relator of such powers, and it seems to me that if the State has a right to question the right of the relator to this franchise, or its'right to use the franchise, that the defendants as State officers had such right. Entertaining the views I formerly expressed in 117 Appellate Division, 92, and which have been confirmed by a subsequent examination, I do not think this court should reverse the determination of the defendants. •
I also disagree with the opinion of Mr. Justice Scott as to the necessity of this corporation obtaining a certificate from the defend ants or their predecessor, the Commission of Cas and Electricity, before it could exercise any right or privilege under the franchise ■ heretofore granted by the State and the city of New York. It is. apparent that this franchise has never been actually exercised. A pretended usé of the streets for a short period many years ago over a small territory does not, I think, bring this case within .section 68 of the Public Service Commissions Law (Laws of 1907, chap. 429). Whatever franchise the American Electric Illuminating Company claimed to have had in 1889 or 1890, it then abandoned any *822attempt to exercise a franchise, and for twenty years has been practically extinct. It seems to me to be a violation of. the spirit as well as the letter of this statute to claim that such. a franchise can b.e revived after such a period of time and allow the exercise óf the powers then granted without the consent of the defendants.'
I also think that the second reason assigned by the Commissioners justified them in refusing this consent. I think the bonds already issued and which tins issue is to be used to retire were clearly illegal, not issued for any corporate purpose,'and for which the corporation received no real consideration. It is quite clear that the stock of this alleged corporation was issued without real consideration and has never been approved' by' the Commission of Gas and Electricity or this defendant. Here is a corporation without property, with a franchise the legality of which is doubtful, with stocks and bonds -that have been • issued that are at least of doubtful validity, asking to be allowed to issue $'50,0.00,000 of bonds and $10,000,000 of stock without really showing thatit is practicable to use any of this stock and bonds in the working of its franchise of providing for the necessary property therefor. It seems to me that. the provision of section 69 of the Public Service Commissions Law which provides that the consent of the Commission must precede the issue of any stock or,bondsof a public service corporation was designed, to prevent the issue of such stocks and bonds as are here asked for, and upon the proceedings, before the Commission no necessity appeared that required them to consent tó such issue except to take up a series of bonds which, as I look at it, were clearly issued without benefit to the corporation. If the relator should present a case to the Commission by which it would appear that the issue of a reasonable amount of bonds or stock would be necessary for the proper exercise of the relator’s franchise, a different question would. , be presented, but as it stands I think this application was properly denied.
McLaughlin, J., concurred.
Writ sustained and determination of Commissioners annulled, with fifty dollars costs and disbursements, and application referred back to the Commission as indicated in opinion. Settle order on notice.