may be so different from that of this commonwealth that decisions of other jurisdictions are by no means controlling, the conclusion here reached is in harmony with the reasoning of numerous cases. Milwaukee Electric Railway & Light Co. v. Railroad Commission, 238 U. S. 174. Duluth Street Railway Co. v. Railroad Commission 161 Wis. 245. Benwood v. Public Service Commission, 75 W. Va. 127. Public Service Electric Co. v. Public Utility Commission, 2 Gunmere. 128.

It follows that the subject of fares (with express or possible exceptions not here material) has been placed under the control of the Public Service Commission. Its power is not restrained on the facts here disclosed by the condition in the original grant of location.2

Bill dismissed.

MATTER OF QUINBY v. PUBLIC SERVICE

COMMISSION.

223 N. Y. 244. 1918.1

POUND, J. The facts upon which the application for a writ of prohibition is based are as follows: The New York State Railways presented a petition to the public service commission of the Second district praying that it be permitted to raise to six cents its rate of fare on street surface railways in the city of Rochester and a number of other cities. The city of Rochester filed objections to the jurisdiction of the public service commission to entertain such application. Its objections were based, first, on chapter 359, Laws of 1915, amending the charter of the city of Rochester, and fixing a five-cent rate for one ride over the road of any corporation operating a street surface railroad in such city; and, secondly, upon the like terms and conditions contained in the franchise of the street railroad company as a condition of the consent of the local authorities thereto. Briefs were filed with the commission on behalf of the city of Rochester in support of its claim that

2 See Pawhuska v. Pawhuska Oil Co. (1919), 250 U. S. 393; Salem v. Salem W. L. & P. Co. (1919), 255 Fed. 295; Dubuque Electric Co. v. Dubuque (1919), 260 Fed. 353; Collingswood Sewerage Co. v. Collingswood (1918), 91 N. J. L. 20, aff'd 92 N. J. L. 509. Cf. Interurban Ry. & T. Co. v. Public Util. Comm. (1918), 98 Oh. St. 287.

See C. K. Burdick, "Regulating Franchise Rates," 29 Yale L. Jour. 589; W. L. Ransom, "The Legislative Power, The Public Utility Rate and the Local Franchise," 4 Cornell L. Quart. 17; Note, 18 Michigan L. Rev. 320

1 The statement of facts, arguments of counsel and part of the opinion are omitted. ED.

the public service commission was without jurisdiction to entertain said petition of the New York State Railways, and oral argument was also made before the commission by the corporation counsel of the city.

In November, 1917, the public service commission made a decision in one of the cases (Matter of Petition of Huntington R. R. Co., 14 Official State Dept. Reports; Matter of Application of N. Y. & N. S. Traction Co., 15 Official State Dept. Reports 1, Jan. 10, 1918, contra) in which a petition for permission to increase rate of fare was presented to it, and held that the commission had the power to permit fares to be increased to an amount beyond five cents, notwithstanding the provision of section 181 of the Railroad Law, and also that it had power to permit fares to be increased beyond the rate fixed in a franchise granted by a municipality to a street railway company, and beyond the rate fixed in a contract existing between a municipality and a street railway company. After such decision the public service commission decided to hear the Rochester case on the merits. The public service commission has thus assumed jurisdiction of the matter of the application of the New York State Railways for permission to increase its rate of fare in the city of Rochester to six cents.

[The court held that there was nothing in the charter provisions of the city of Rochester which excluded the commission form jurisdiction in this case.]

We have still to consider whether jurisdiction is limited,

2. By the fact that the consent of the local authorities was given on condition as to rates of fare.

The Constitution, art. III, section 18, as it was amended in the year 1875, provides:

"But no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the Appellate Division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners."

The power of the local authorities to impose, as a condition to giving consent to the construction and operation of a street rail

road, that a stipulated rate of fare should be charged, has been repeatedly upheld. People ex rel. West Side St. R. Co. v. Barnard, 110 N. Y. 548; Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 391, 392; Public Service Commission v. Westchester St. R. R. Co., 206 N. Y. 209; People ex rel. Frontier Elec. Ry. Co. v. City of North Tonawanda, 70 Misc. Rep. 91; Allegheny City v. Millville, A. & S. Ry. Co., 159 Pa. 411. But these cases dealt with the question of local power over the corporation, and not with the question of general legislative power over the municipality. The question presented is this: The consent of the local authorities being obtained, what jurisdiction has the Legislature conferred upon the public service commission to regulate rates by increasing the rate agreed upon without such consent? Again, it is urged that its jurisdiction is plenary; that "a municipal corporation is simply a political subdivision of the state, and exists by virtue of the exercise of the power of the state through its legislative department; ... the city is the creature of the state" (City of Worcester v. Worcester Con. St. Ry. Co., 196 U. S. 539, 548); that rate regulation is a matter of the police power of the state, and therefore contracts may be affected by its exercise without impairing their obligation (Louisville & N. R. R. Co. v. Mottley, 219 U. S. 467, 485; Texas & N. O. R. R. Co. v. Miller, 221 U. S. 408, 414; Buffalo E. S. R. R. Co. v. Buffalo Street R. R. Co. 111 N. Y. 132); that the power to regulate rates has not been irrevocably surrendered to the local authorities by the constitutional requirement that the consent of such authorities is requisite; that no immunity from the exercise of governmental power has been transferred to the municipalities, save only that their naked consent is requisite; that if conditions may validly be imposed upon such consent by the localities in the beginning, they are subject to alteration or repeal at the legislative will, that as the state cannot be fully sovereign without full legislative power, such power is not deemed to be abridged. (City of Rochester v. Rochester Ry. Co., 182 N. Y. 99, affirmed 205 U. S. 236; Portland, etc., Co. v. City of Portland 201 Fed. 119, 125.) It has been held that the Legislature may, by virtue of its general power over municipalities, regulate the mode and manner in which the consent of the local authorities to the construction and operation of street railroads shall be given, and may regulate and limit by statute the conditions upon which it may be given. Matter of Thirty-Fourth St. R. R. Co., 102 N. Y. 343; Beekman v. Third Avenue R. R. Co., 153 N. Y. 144, 152; People ex rel. S. S. Traction Co. v. Willcox, 196 N. Y. 212. Regulations are so made in certain cases by the Railroad Law, section 173, but that section expressly provides that nothing therein contained.

shall be construed as modifying or affecting the terms of the contract between the city of Rochester and the street railroad, and it looks to the future and does not attempt to regulate consents already granted. The Constitution does not expressly provide that the municipality may irrevocably establish rates for the entire period of a franchise, and it has been held invariably and in a legion of cases that such power to establish rates is not essential to the consent of local authorities, and will not be implied, and that the Legislature is at all times supreme in the matter. (Home Telephone & Tel. Co. v. City of Los Angeles, 211 U. S. 265; Arlington Board of Survey v. Bay State Ry. 224 Mass. 463; State ex rel. Webster v. Superior Court, 67 Wash. 37, L. R. A. 1915C 287; State ex rel. R. R. Co. v. P. S. C., 259 Mo. 704; Manitowoc, &c., v. M. & N. R. R. Co., 145 Wis. 13; Dawson v. Dawson Tele. Co., 137 Ga. 62; City of Woodburn v. Pub. Service Commission, 82 Or. 114, L. R. A. 1917C, 98; Collingswood Sewerage Co. v. Borough of Collingswood 91 N. J. L. 20.) In all such cases, the question was one of unrestricted legislative power, policy and discretion over a city or town where the local authorities were held to be mere instrumentalities through which the state exercised its sovereign power. The paramount power of the Legislature over the subject of fares was upheld in the absence of a constitutional limitation. But our Constitution by requiring the consent of the local authorities, recognizes that our muncipalities are pro tanto independent of legislative control, exercising some fragment of power, otherwise legislative in character, which has been thus irrevocably transferred by the fundamental law from the Legislature to the locality. The grant by the municipality of authority to use the streets is not a mere privilege or gratuity. Once accepted, it becomes a contract which neither the state nor its agencies can impair. (People v. O'Brien, 111 N. Y. 1.) And it is urged by the appellant that the franchise and the conditions upon which the consent of the local authorities are obtained are inseparable; that the very right of the railroad to operate depends upon. its compliance with the obligation to keep such conditions (Matter of N. Y. E. Lines Co. v. Empire City Subway Co., 201 N. Y. 321, 329, affirmed 235 U. S. 179); that it would be a vain thing if the consent were placed under the protection of the Constitution, and the conditions which induced such consent were immediately subject to extinguishment by the Legislature, for that would mock the very purpose of the constitutional provision and permit almost any interference by the Legislature; that the local authorities in this matter are supreme over the public service commission by virtue of the Constitution; that the obligation of a street surface railroad

to carry passengers for an agreed fare may in a constitutional sense be neither a contract nor private property, but it is imposed by virtue of a delegated power, delegated by the people not by the legislature to the local authorities, and is thus beyond legislative recall; that, when any right is expressly protected by the Constitution, the police power may not be exercised to impair its validity (People v. Gillson, 109 N. Y. 389, 400); and that the public service commission, therefore, has no jurisdiction over the subject-matter of rate regulations in the city of Rochester, because the Legislature has no power to alter the rates fixed by consent of the company and the local authorities.

It is, however, unnecessary, and therefore improper, to decide at this time what the limits of legislative power are in this connection. The delegation of legislative power to commissions and other administrative officers and boards need not be assumed if the general words from which such delegation may be inferred are not reasonably so construed.

In the absence of clear and definite language conferring, without ambiguity, jurisdiction upon the public service commission to increase rates of fare agreed upon by the street railroad and the local authorities, we should not unnecessarily hold that the Legislature has intended to delegate any of its powers in the matter, whatever its powers may be. The Public Service Commissions Law (§ 26, § 49, subd. 1) and the Railroad Law (§ 181) deal with maximum rates of fare established by statute, but make no reference in terms to rates established by agreement with local authorities.

In regulating rates three courses were open to the Legislature: 1 To prescribe rates itself; 2 to delegate the power to the commission; 3 to leave the matter to agreement between the street railroad company and the local authorities. It has constitutionally conferred on the public service commission certain functions (Matter of Trustees of Village of Saratoga Springs v. Saratoga Gas, E. L. & P. Co., 191 N. Y. 123), which plainly include the power to regulate rates fixed by statute; and while it may be said that it has undertaken to delegate to the public service commission "the same power" that it has to regulate rates of fare (Railroad Law, § 181), it is impossible to find a word in the statutes which discloses the legislative intent to deal with the matter of rates fixed by agreement with local authorities. As it has often been held in connections other than that of legislative power over them that such agreements are valid, it may well be inferred that the Legislature excluded them from consideration by .failure to mention them, and that it has made no attempt to turn them over to the