204 N.Y. 440 | NY | 1912
The action was brought to recover a penalty for violation of sections
It appears by the record that the learned court below placed its decision on the authority of its decision in King v.Nassau Electric Railroad Company (
The plaintiff's right to recovery must, therefore, rest on section 104. In the later case, King v. Nassau Electric R.R.Co., the Appellate Division held that the section did not apply because the defendant in that case was the owner, not the lessor, of the two roads from one to the other of which the plaintiff sought a transfer. From the citation by the court below of that decision as an authority for the disposition of this case we understand that court to have held that because the defendant, after the lease of the two roads, acquired the stock of the companies owning those roads and thereupon the constituent companies became merged in the lessee, the requirements of section 104 were no longer imperative, though they would have been had the defendant continued to operate the two roads under the leases. We do not assent to this proposition. If the Railroad Law in the form extant at the time this cause of action arose were a new and original statute the natural construction would be to refer the commencement of section 104, "every such corporation entering into such contract," etc., to the preceding section. But that section (103) deals only with railroad corporations desiring to abandon portions of their routes which are no longer necessary for the operation of the road or the convenience of the public. Hence, we must look somewhere else to find to what corporations the term "such" applies, or ignore the term as superfluous. The explanation of the phraseology of the section is to be found in the history of the legislation on the subject with which the section deals. The prototype of section 104 is found in the Street Surface Railroad Law of 1885 (Ch. 305) as section 4. That act authorized any street surface railroad company, or any corporation owning or operating a street surface railroad or railroad route, to contract with any other such company or corporation for the use of their respective roads or routes or *445
any portion thereof. It further authorized the lease of such roads. Section 4 then required "each and every company entering into any contract under the power conferred by this act" to transport over any portion of the road embraced within the contract for a single fare and give transfers for that purpose. In 1890 (Ch. 565) the Railroad Law already mentioned, embracing the regulation of railroads of every kind, was enacted. By section 103 of that statute the same authority was given to street surface corporations to contract with other such corporations for their respective roads or routes. Section 104 provided for the submitting of the contract to a vote of the stockholders; and the present section 104 is a literal and exact reproduction of section 105 of that act except that the qualification has been added "the provisions of this section shall only apply to railroads wholly within the limits of any one incorporated city or village." This qualification was added by chapter 676 of the Laws of 1892, which amended many sections of the General Railroad Law. By that provision section 103 of the Laws of 1890 was entirely omitted (probably because its provisions were deemed unnecessary, the subject being covered by other sections of the statute applicable to all railroads), and in place thereof was inserted the present section 103. From this review of the legislation it is plain that "such corporation entering into such contract" embraces all corporations which by any form of contract acquire the right to use the road of another corporation. We see no reason why it does not include contracts for consolidation as well as contracts for lease and traffic agreements. Reading sections 101 and 104 together the intent of the legislature is reasonably clear. It did not intend to interfere with the fares which existing street railroad companies were entitled to charge, but it did intend to require as a condition for the exercise of the privilege of expansion in any direction that they should subject not only their newly-acquired property but their *446
existing property to the provisions of the statute relative to single fares and transfers. If a company ever extended its line or built a branch, under the provisions of the statute, from that time it was required to transfer passengers over the whole of its routes for a single fare. If it made any contract by which it acquired the right to use the railroad of another company it was required to transport its passengers over the joint route of both companies for the same fare that either was entitled to charge before making the contract. There is absolutely no reason why a merger or consolidation should be exempt from conditions imposed in the case of leases or traffic agreements and the courts should not import such an exemption into the statute unless the phraseology of the statute requires it. We think neither is the fact. A fuller review of this legislation may be found in the opinions rendered by Judge EDWARD T. BARTLETT in the cases ofGriffin v. Interurban Street Ry. Co. (
The question, however, still remains whether the defendant is relieved from the requirements of the section by *447 the limitation that it should apply only to railroads wholly within the limits of any one city or incorporated village. In 1894 when the merger or consolidation was effected, the road of the Broadway company was wholly within the city of Brooklyn, in the county of Kings. The road of the Jamaica company was partially in that city but mostly in the town of Jamaica, county of Queens. Therefore, at that time, the consolidation of the roads of the two companies did not impose on the new corporation the obligation to transport over the combined line of both for a single fare. In 1897, however, the three cities of New York, Brooklyn, Long Island City, the county of Richmond and the greater part of the county of Queens, including the town of Jamaica, were consolidated so as to form the present city of New York. Did such consolidation in the creation of the new municipality impose upon the defendant obligations and requirements from which before consolidation it was free? We think not. In the case of what might be regarded as the natural extension of an existing city or village caused by the overflow of increasing population into adjacent territory, it may be that the obligations of a railroad company would increase with the increase of the municipality. The creation of the present city of New York was not at all an extension of that character. By it were combined the old city of New York with a population of 1,800,000, the city of Brooklyn with a population of 1,000,000, and the outlying districts of Queens and Richmond, with a population of 150,000 more. The area of the county of New York is 39 miles, that of Kings 72, of Richmond 59 and of the annexed portion of Queens 58. Thus the area of the new city is over five times that of the old city of New York and over three times that of the old city of Brooklyn. Though consolidated into a single municipal corporation the autonomy of the several constituent municipalities is maintained in some degree by the creation of boroughs to which certain local administration is confided. The *448 charter of the new city (§ 1538) enacted that the franchises theretofore granted by any of the united and consolidated municipalities should be restricted to their respective limits before the consolidation. It would seem fair that if the privileges were not extended by consolidation neither should the obligations be. It is hardly to be supposed that either the legislature in the enactment of this section of the Railroad Law, or the defendant in the acquisition of the two roads under the provisions of that law, had in contemplation such a vast and radical change in existing conditions as was caused by the creation of the new city. It may be said that the difference between the case of what we have termed the natural expansion of the city and that of the creation of the consolidated city is one merely of degree. This is true, but many questions are merely of that character.
The order appealed from should be affirmed and judgment absolute rendered for the defendant, with costs in all courts.
GRAY, HAIGHT, VANN, WERNER and HISCOCK, JJ., concur; COLLIN, J., concurs in result.
Ordered accordingly.