The authority of the public service commission to regulate and increase rates of fare on street surface railroads in the city of Rochester, where such rates had been fixed as a condition of the consent of the local authorities to the operation of the road, was denied in Matter of Quinby v. Public Service Commission (223 N.Y. 244; S.C., 227 N.Y. 601.)
When the case of People ex rel. Village of South Glens Falls v. Public Service Commission (225 N.Y. 16) was before this court for consideration, one of the questions discussed was whether the statutes affecting a franchise given to a gas corporation were so different from those affecting a franchise given to a street surface railroad corporation that a decision different from that rendered in the Quinby case should be made because thereof. I was of the opinion that where the facts and statutes were similar in other respects the public service commission had the same right and the same right only to regulate and modify the conditions attached to a franchise relating to the price of gas as it had to regulate and modify the conditions attached to a franchise relating to fares to be charged on street surface railroads, and that in view of what had been said in the opinion in the Quinby case the matter should be left to the legislature for its determination. The views expressed by me in the South Glens Falls case did not meet with the approval of a majority of the court. It was held that the legislature had the power to regulate the price of gas in that case although the franchise fixed a limited compensation to be paid for gas to be furnished pursuant to the franchise and that the legislature had conferred power on the public service commission to regulate such rates.
Although, as shown by Judge McLAUGHLIN herein, the decision in the South Glens Falls case is not in conflict *Page 355 with what was necessarily decided in the Quinby case, it was a substantial disapproval of what was said in the Quinby case except so far as it was therein held that the public service commission had no jurisdiction to raise the rate of fare in that particular case.
This court in Matter of International Railway Company v.Public Service Commission (226 N.Y. 474) held that the public service commission had jurisdiction to regulate rates of fare in the city of Buffalo. In the opinion in that case it is said, in substance, that in deciding the Quinby case the question whether the legislature may wipe out the conditions annexed to the consent of the locality altogether and transform a consent that was qualified into one that is absolute was left open, and added, "We leave it open now."
The decision in the Quinby case was made without necessarily determining that the reserve police power of the legislature has been contracted away or that the legislature directly or through the public service commission is without power and authority inherent or otherwise to regulate and modify conditions attached to a consent by local authorities.
In view of the subsequent decisions of this court the decision in the Quinby case should not be deemed a precedent except to the extent that the questions involved were necessarily decided in reaching the conclusion that was therein announced.
I concur in the opinion of Judge McLAUGHLIN for reversal.
ANDREWS and ELKUS, JJ., concur with HOGAN, J.; CARDOZO, J., concurs in memorandum, in which ELKUS, J., also concurs; McLAUGHLIN, J., dissents in opinion, in which CHASE, J., concurs in memorandum, and in which COLLIN, J., also concurs; ANDREWS, J., also concurs in so much of opinion of McLAUGHLIN, J., as holds that the legislature has constitutional power to modify rates fixed in the local franchise.
Order affirmed. *Page 356