31 N.J. Eq. 475 | New York Court of Chancery | 1879
The Chancellor.
The bill is filed by the Central Railroad Company of New Jersey, and Francis S. Lathrop, receiver for the creditors and stockholders thereof, for an injunction to restrain the defendants, other than the city, from constructing a railroad from the line of the Pennsylvania Railroad at or near Bergen cut, to the National docks, upon any route or location across any of the lands or railway tracks of the Central Railroad Company, under or by virtue of the provisions of the general railroad law, and from taking and condemning, or instituting any proceedings to take or condemn, any lands or railway tracks of the Central Railroad Company, or to acquire the right of crossing those lands or tracks for the purpose of constructing a railroad across them, under the provisions of that act, and to restrain the city from granting permission to the other defendants to lay their road in Jersey City in such manner as necessarily to cross the main line and railways of the Central Railroad Company at grade.
The bill states that the Central Railroad Company is the absolute owner in fee of certain land in Jersey City therein described at length, which it lawfully acquired for its uses and purposes in the exercise of the public franchises granted to it, and that that land, or a large part thereof, is now in constant use for those purposes, and that all of the land is both necessary and convenient for the present and future due and proper exercise of its corporate franchises and functions, and in the transportation of passengers and
The bill further states that no survey of the route or location of the railroad has been filed; that all of the route and locations which have been or may he proposed must cross-the land of the Central Railroad Company, and that the road must necessarily occupy a part of the main line of tracks of that company and numerous branches and sidings thereof, at a short distance from the main terminus of the Central railroad, and that it is intended that the projected road shall cross them at grade; that over the main line of tracks so to be crossed and taken, an immense volume of passenger and freight traffic of the Central Railroad Company and its affiliated lines is constantly passing, and that such crossing of the main line would greatly endanger the safety of the passengers and freight transported thereon, and greatly obstruct the company in the present and future management of its business and in the construction of new tracks, sidings and buildings necessary therefor, and work irreparable injury; that the Central Railroad Company has for many years been lawfully engaged in the business of transporting petroleum from the city of Elizabeth and points west thereof, to Communipaw bay, and has with much skill and labor, and at large expense, built up and is enjoying a large and remunerative business therein; that the Pennsylvania Railroad Company and the Storage Company design, by the colorable use of the general railroad law, to create an unlawful competition with it therein; that the good will of its business has been taken into the custody of this court, and is now being administered under its direction; that the complainants are entitled to be protected from the unlawful combination and competition by this court; that the parties concerned in the scheme of building the branch road intend to take by condemnation a valuable part of the land and franchises of the Central Railroad Company in the custody and management of this court, without first applying to this court for permission so to do; that such intended action
The bill then presents various objections to the organization of the Rational Docks Railway Company under the general railroad law; it insists that three of the seven persons, the corporators mentioned in the certificate of incorporation, are not citizens of this state, and therefore are not “persons” within the true meaning of the act; that if the corporation be created within the fair construction of the act, and capable of taking the franchises and exercising the power of eminent domain thereby conferred, the act itself is a violation of the fundamental principles of constitutional government and law, and of the first subdivision of the first section of the fourth article of the constitution of til's state (which prescribes that the legislative power shall be vested in a senate and general assembly), because the power of determining that the necessity and occasion have arisen for divesting a citizen of this state of his freehold lands by the exercise of the power of eminent domain, is the highest prerogative power which can be exercised in a free state, and cannot be delegated by the legislature to private persons ; that the power of eminent domain cannot lawfully be exercised, except upon previous lawful determination that the necessity and occasion have arisen for its exercise, and no such lawful determination has been made of the necessity and occasion of taking the lands and main line of the Central Railroad Company to construct the railroad described
The National Hocks Railway Company has put in affidavits ; one, that of its president, to the effect that it has finally decided to adopt a route for the branch, which is to cross the Central railroad about three hundred feet eastward of the round-house or locomotive-berth of the Central Railroad Company, and at an elevation above the tracks of the Central railroad at that point of about twenty-one feet, leaving a clear space of at least eighteen feet. between the top of the rails of the Central railroad tracks and the under side of the truss of the contemplated viaduct, and that, at no time, has the company, or any other pei’son, to his knowledge, contemplated building the railroad to cross the Central railroad tracks to the eastward of the roundhouse and engine-berth, at grade.
The other affidavit is made by the president of the Storage Company, who swears that the capital stock of the company is owned entirely by the individuals in whose names it stands; that, to the best of his knowledge and belief, none of it is owned or controlled, directly or indirectly, by the Pennsylvania Railroad Company, but that all the earnings, profits and emoluments of the Storage Company, and all its capital stock, belong actually, absolutely and in good faith to those individual stockholders in their own right,
The action of this court is invoked for the protection of the complainants against the construction, under the provisions of the general railroad law, of a railroad (for the transportation of petroleum) from the Rew Jersey Railroad at or near Bergen cut, to the docks of the Rational Storage Company in Jersey City.
The main grounds of the application are as follows: That inasmuch as the property of the Central Railroad Company is in the hands of this court, under proceedings in insolvency, and' the road in question will, if built, cross the railroad and lands of that company, it is necessary to obtain the consent of this court to such crossing; that the enterprise, though nominally undertaken by certain individuals as corporators, is, in fact, the enterprise of the Pennsylvania Railroad Company, which has no right, either under the general railroad law or otherwise, to build the road; that some of the seven persons named as corporators in the .articles of association are not citizens of or residents in this state, whereas it is insisted none but citizens of or residents in this state can lawfully be corporators under the general railroad law ; that the articles of association are not in compliance with the law, because one of the termini of the proposed road is not designated with sufficient certainty, and that the general railroad law is unconstitutional because it confers the power of determining upon the necessity of exercising the right of eminent domain upon those who are to exercise the right.
Incidentally, it is the duty of the court to protect, preserve and husband it, and the statute (Rev. p. 196, § 106), imposes the duty of operating the railroad for the use of the public while it is in the hands of the receiver. But the fact that its property is under the charge of this court does not in anywise secure to the company protection against lawful competition in its business, or secure for its property immunity against liability to lawful condemnation.
Its relation to other enterprises and the community is not essentially changed. If it be contemplated to take its land by condemnation, the consent of this court will, in deference to the tribunal" and the orderly administration of justice, be sought, and in a proper case it will be accorded as a matter of course.
The general railroad law {Rev. p. 926) provides that any number of persons not less than seven, where the proposed road is less than ten miles in length, and not less than thirteen where the proposed read is ten miles or more in length, may form a company for the the purpose of constructing, maintaining and operating a railroad for the public use in the conveyance of persons and property, or for the purpose of maintaining and operating any unincorporated railroad already constructed for the like public use; and for that purpose may make and sign articles of association, in which shall be stated the name of the company, the number of years it is to continue, the places from and to which the road is to be constructed or maintained or operated, the length of the road, as near as may be, and the name of each county in this state through or into which the road is made or intended to be made, the amount of the capital stock of the company, the names and places of residence of seven directors of the company where the road is less than ten miles long, the names and residences of thirteen directors where the road is ten miles or more in length, a majority
The complainants contend that the seven or thirteen persons mentioned in the law, who are to join in the articles of association, must be citizens, at least residents of or dwellers in this state, and that the legislature did not intend to confer the privileges upon others; that to construe the law so as to admit citizens of other states or foreigners to avail themselves of the benefits of the law, would subject the property of the citizens of this state, throughout its whole territory, to be taken against the will of its owners, upon compensation, for the advancement of the speculations in railroad enterprises, however wild and visionary, of those who have no interest in the state or its welfare. The legislature clearly did not intend to confine the advantage of the law to those who were citizens of or dwellers in this state. The language of the law is, “ any number of persons, not less than seven, &c.” The terms express no qualification. The law evidently contemplates that the minimum number may sometimes sign the articles, and that they will be the first directors, and the provision that a majority of the first directors shall be residents of this state is strong and con-
The legislature has not attempted to make any discrimination in the law against citizens of other states. The term it uses is “ persons.” Citizens of other states are, by virtue of the provisions of the constitution of the United States declaring that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, entitled to all the privileges to which citizens of this state are entitled under the law.
It will be convenient to notice here the objection based on the designation of the termini of the projected road. It is insisted that while the specification of a terminus “ at or near Bergen cut,” which is more than a mile long, might, perhaps, be definite enough for a long line of road, it is by no means so for one only a mile and a half in length. The distinction does not appear' to me to be well taken. The terminus in question is to be the junction with another railroad, and it is designated with sufficient definiteness for that purpose. In State, M. & E. R. R. Co. pros. v. Hudson Tunnel Co., 9 Vr. 548, the articles declared that the tunnel was “ to commence at some convenient and eligible point upon the western shore of the Hudson river, and within or near Jersey City or Hoboken,” and it appears not to have been regarded as a ground of objection in that sharply-contested case. See, also, State, W. J. R. R. Co. pros. v. Receiver of Taxes of Camden, 9 Vr. 299. In Chicago B. & Q. R. R. Co. v. Chamberlain, 84 Ill 333, a designation of a terminus as “ some eligible and convenient point in the county of Du Page, there to connect with the G-. & C. U. Railroad,” was held sufficient.
The objection made by the complainants to the general railroad law is, that it commits the determination of the necessity for the exercise of the power of eminent domain
The grant by the legislature of the power to exercise the right of eminent domain for the building of railroads for the public use, to any persons who will undertake to construct them, leaving it to such persons to select the routes for themselves, is of itself a determination by the legislature that such roads are necessary or useful for the public. The legislature, in granting special charters for public improvements, such as railroads and canals, very rarely, if ever, expressly declared the existence of the necessity. It authorized the construction of the work and granted the franchises, including the power of condemnation. If the improvement was one of public necessity or utility, there could be no judicial inquiry as to the propriety of its action in giving the power to condemn. The protection which the property owner had under such charter, as contrasted with a general law, very often consisted substantially in the fact that the authority was confined to a particular enterprise, and the difference was unimportant when the termini of the road or canal were extremely indefinite; as in the instance of the charter of the Delaware and Raritan Canal Company, by which authority was given to construct a canal between the Delaware and Raritan rivers, leaving it to the company to fix the location (P. L. 1824 p■ 176); or in that of the Morris Canal, where authority was given to construct a “ canal to connect the waters of the Delaware river, near Easton, with the tide-waters of the Passaic river, and passing through the county of Morris ” (P. L. 1824 P• 758); or in that of the Camden and Amboy Railroad Company, where the grant was to corporators not named (those who should "subscribe the stock), of the rights, powers and privileges necessary to survey, lay out and construct a railroad or roads from the Delaware river, at some point or points between Cooper’s creek and ETewton creek in Glou
By the amendments to the constitution, the legislature was shorn of its power to confine the building of railroads to such enterprises as it should specially designate and approve. By these amendments (Const., Art. IV, § 7, pi. 11), the legislature is not only prohibited from passing special laws granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever, but also from passing special laws granting to any corporation, association or individual the right to lay down railroad tracks, and it is required to pass general laws providing for such cases. It therefore cannot, by special enactment, give to any corporation, association or individual the right to build a railroad, but the right is' to be given by general law. If it cannot grant the right to build a railroad by special act, it cannot itself determine the necessity for the exercise of the right of eminent domain in any particular case. It must, therefore, delegate the power.
It is urged that it is contrary to natural justice, that the determination of the necessity should be left to those who are to exercise the right, because no one should be judge in his own cause; and that the legislatm-e, therefore, must delegate the power to some court or commission. But if the constitution is silent on the subject, the action of the legislature is final on this head. Such is the view both of the courts and text writers. In Giesy v. C. W. & Z. R. Co., 4 Ohio St. 308, the court held that no well-founded constitutional objection exists to committing the power of determining the necessity to those who are to exercise the power.
In Buffalo and New York R. R. v. Brainard, 9 N. Y. 100, it was held that the legislature of New York had the undoubted right to provide for the incorporation of railroad companies by a general act, and that it might, by legislative enactment, give to them powers and impose duties almost exclusively of a public character, and in such cases it might, without doubt, lawfully' declare that all lands taken for the construction of their roads should be deemed taken for public use. And the court says that the objection that the power to determine when and where the road shall be built is confided to the corporation instead of being exercised by the legislature or confided to some public officer or public body, seemed to present rather a question of propriety and fitness than one of power.
Said the court in People v. Smith, 21 N. Y. 595, 598: “ The necessity of appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to be appropriated and the purpose of the appropriation, or it may be delegated to public officers, or, as it has been repeatedly held, to private corporations established to carry on enterprises in which the public are interested. There is no restraint on the power except that requiring compensation to be made.”
In C. R. I. & P. R. R. Co. v. Town of Lake, 71 Ill. 333, it was held that when the case is such that it is proper to delegate to individuals or a corporation the power to appropriate property, it is also competent to delegate the authority to decide upon the necessity.
Says Judge Cooley (Cooley on Const. Lim. 538): “The authority to determine in any case whether it is needful to exercise this power, must rest with the state itself, and the question is always one of strictly political character, not requiring any hearing upon the facts or any judicial determination. Nevertheless, where a work or improvement of local importance only is contemplated, the need of which must be determined upon a view of the facts which the people of the vicinity may be supposed best to understand, the question of necessity is generally referred to some tribunal, and it may even be submitted to a jury to decide upon evidence. But parties interested have no constitutional right to be heard upon the question unless the state constitution expressly recognizes and provides for it. On general principles the final decision rests with the legislative department of the state, and if the question is referred to any tribunal for trial, the reference and the opportunity for being heard are matters of favor and not of right. The state is not under any obligation to make provision for a judicial contest upon that question; and -where the case is such that it is proper to delegate to individuals, or to a corporation, the power to appropriate private property, it is also competent to delegate the authority to decide upon the necessity for the taking.”
Said Chief-Justice Shaw, in Wellington v. Petitioners, 16 Pick. 87, 101: “ It is objected that there was no adjudication that the laying out of Cambridge common and the enclosure thereof, were of common convenience and necessity. But the legislature are bound tono particular form. Represent
There is a remedy at law, by certiorari, for the land owner, not only against essential irregularities in the proceedings of corporations under the general railroad law affecting their right to condemn, but, also, against unwarranted invasion of his rights where the proceedings are otherwise valid, as where the attempt is made to take more land than the company is authorized to take, and the constitutionality of the law itself may be inquired into on certiorari. State, M. E. R. R. Co. pros. v. Hudson Tunnel Co., 9 Vr. 548; Vail v. M. & E. R. R. Co., 1 Zab. 189; Doughty v. Somerville & Easton R. R. Co., 1 Zab. 442; State, Mayor &c. of Jersey City pros. v. Montclair R. R. Co., 6 Vr. 328.
But the remedy at law is not always adequate. It would obviously not be so where the injury apprehended is an unlawful competition in the exercise of chartered privileges wherever the complainant in the given case would be unlawfully injured in the exercise of a franchise by an
The complainants have a valuable franchise, under the charter of the company, and have a right to be protected in their enjoyment of it against unauthorized competition. The ■right to build and use a railroad for public use is a franchise the right to which can be derived from the state alone. Such franchise is, in its nature, and in the absence •of express provision to the conüary, exclusive, except ■against the state, and those invested with a privilege which interferes, by way of competition, with the enterprise, and a ■competing road established without legislative authority, will be enjoined.. Rar. & Del. Bay R. Co. v. Del. & Rar. Can. Co., 3 C. E. Gr. 546; Pennsylvania R. R. Co. v. National R. Co., 7 C. E. Gr. 441.
Said the chief-justice, in the opinion of the court in the first-mentioned case : “ A franchise to build a railroad for public use, and to take tolls, is property the title to whiqh is ■held from the sovereign, and, like every other thing susceptible of private ownership, it must, of necessity, be under the protection of the law. Unless it can be shown that this
It is obvious that, under the operation of the general railroad law, the aid of the courts must be accorded to protect those who legitimately enjoy railroad franchises, as well as -property owners, against the abuse of the law by those who,, under cover of its provisions, illegitimately seek to avail -themselves of the extraordinary power which it confers. It is within the province of this court to grant such protection. Del. & Rar. Bay R. Co. v. Del. & R. Co., ubi supra; Bonaparte v. Cam. & Am. R. R. Co., Bald. C. C. 205; Giesy v. Cincinnati &c. R. R. Co. 4 Ohio St. 308.
It is undoubtedly within the power of this court (and it is its duty), where an abuse of the general railroad law is-attempted by the unlawful application of its provisions to a private use, to restrain the unauthorized proceedings.
On the case as made by the bill and affidavits, the enterprise in question appears to be unlawful. A corporation cannot in its own name subscribe for stock, or he a corporator under the general railroad law; nor can it do so by a ■simulated compliance with the provisions of the law through its agents as pretended coi’porators and subscribers of stock. Though five of the corporators of the National Docks Railway Company, as directors, by their affidavit appended to-the articles of association, swear that the amount of the-capital stock required by law to be subscribed and paid in.
But, further, though by a supplement to its charter (P. L. 1869 p. 893) power is given to the Storage Company to construct a railroad from its depots to some point on the Rew Jersey Railroad, between the Hudson and Hackensack rivers, and the power of condemnation is thereby granted, it has not availed itself of the privilege thereby conferred, perhaps because in exercising the power of condemnation it might be met by the objection that the railroad is for private use merely. By the avowal contained in the affidavit of its president, it appears that the projected road, which is to be from its docks to the line of the Rew Jersey Railroad, is
The proceedings should be stayed. There should, therefore, be a preliminary injunction.