Opinion
February, 1920.
Cullen Dykman (William N. Dykman, of counsel), for Brooklyn City Railroad Company.
William P. Burr (Edgar J. Kohler, of counsel), for city of New York.
Terence Farley (John A. Mullan, of counsel), for Public Service Commission.
The relator, the Brooklyn City Railroad Company, moves pending the hearing and the final disposition of the writ of certiorari heretofore allowed by this court for an order "suspending and staying in all respects the enforcement of the order of the public service commission of the state of New York for the first district forbidding the collection of an additional fare on the Flatbush Avenue Line of the Brooklyn City Railroad Company and permitting it to collect a fare upon the Flatbush Avenue Line upon giving a refund ticket to each passenger so paying the second fare." The moving papers as well as the brief of the learned counsel of the relator make it clear that the stay or suspension of the commission's order is asked pending the decision of the Appellate Division upon the writ. The only provision of the Code of Civil Procedure applicable to a stay pending certiorari is found in section 2131. The only order that may be made by the court under section 2131 would be to stay the commission from executing its order. Under the common law a writ of certiorari of a superior court to an inferior tribunal or body removes the record from the custody of the inferior tribunal, thus leaving nothing there to be enforced by execution. The writ therefore operated ipso facto as a stay of execution of the original determination. Ewing v. Thompson, 43 Penn. St. 372; People ex rel. Croker v. Sturgis, 39 Misc. 448; Patchin v. City of Brooklyn, 13 Wend. 664. The common-law procedure was changed in this state by statute as embodied in section 2131 of the Code of Civil Procedure, which provides as follows: "Except as prescribed in this section, a writ of certiorari does not stay the execution of the determination to be reviewed, or affect the power of the body or officer, to which or to whom it is addressed. The court, which grants the writ, may in its discretion, and upon such terms, as to security or otherwise, as justice requires, direct by a clause in the writ, or by a separate order, that the execution of the determination be stayed, pending the certiorari, and until the further direction of the court." By that section of the Code the court was given discretion to stay the execution of the determination of the lower tribunal. The only case in which that section has been construed, so far as the court has been able to ascertain, is the Croker Case, supra. It was there convincingly stated, "that it was not the purpose of the Legislature that the judge of whom the stay is asked should in any case, grant it merely because he discovers an error of law. * * * Such an intermediate or half-way interference with the functions of the appellate tribunal would be as unwarranted as it is uncontemplated." That this construction of section 2131 is undoubtedly correct is manifest from an understanding of the ancient rule which held that the execution of the determination of the inferior tribunal was necessarily stayed by the issuance of the writ as well as from a reading of that section which only contemplated a stay of the execution of such determination. It therefore follows that if the court granted this motion under section 2131 the only thing that would be accomplished would be to forbid the public service commission from enforcing it by law. An examination of the Public Service Commissions Law discloses that the only sections of that law under which the commission may take steps looking to an enforcement of its order are sections 24 and 57. Under section 24 the commission is empowered to bring an action to recover penalties or a forfeiture. But that section also provides that "if the defendant in such action shall prove that during any portion of the time for which it is sought to recover penalties or forfeitures for a violation of an order of the commission the defendant was actually and in good faith prosecuting a suit, action or proceeding in the courts to set aside such order, the court shall remit the penalties or forfeitures incurred during the pendency of such suit, action or proceeding." It follows that no damage can result to defendant in case the commission should bring an action for penalties or forfeitures for violation of its order, if it be shown that the certiorari proceedings are prosecuted in good faith. Under section 57 the commission may proceed by mandamus or injunction to prevent violation of its order. But in such a case the defendant would be in a position to contest such proceeding or action upon the grounds which form the basis of its certiorari proceedings. It therefore is apparent that no valid reason exists for granting a stay under section 2131 of the Code. As to the permission sought upon this motion to collect a second fare there is nothing in section 2131 nor in the rules of the common law applicable to writs of certiorari which would warrant the court in granting such relief. The relator in the brief of its learned counsel refers to section 23, subdivision 2, of the Public Service Commissions Law, which provides: "No order staying or suspending an order of the commission fixing any rate, fare or charge or joint rate, fare or charge shall be made by the supreme court otherwise than upon notice and after hearing; and if the order of the commission is suspended, the order suspending the same shall contain a specific finding based upon evidence submitted to the court and identified by reference thereto, that great and irreparable damage would otherwise result to the petitioner and specifying the nature of the damage." The court's attention has not been called to any case in which this section has been construed. It apparently was intended to prevent the issuance of an ex parte order of the court to stay the proceedings of the public service commission and to grant such an order only upon notice and a hearing. There is nothing in the act to indicate that injunctive relief may be granted otherwise than in an action as provided in sections 603 and 604 of the Code of Civil Procedure. The instant motion is not made in any action, and hence in the court's opinion, section 23 of the Public Service Commissions Law is not applicable here. The motion must be denied, with costs.
Motion denied, with costs.