| N.Y. Sup. Ct. | Nov 1, 1869
Lead Opinion
The question involved in this motion is, whether a prohibition, contained in an act of the legislature, passed in 1860, shall he so construed as to prevent the defendants from completing a plan for the sewerage of the city, and from constructing the sewers in accordance with this plan. This plan, so exceedingly important to the health and convenience of the citizens, was sanctioned by the legislature, by an act passed in 1865—five years after the act containing the alleged prohibition.
I. The language, to authorize the court to give effect to this alleged prohibition, should be very clear and specific. To compel the municipal government of this city to suspend or abandon its operations in endeavoring to complete a scheme carefully devised for performing one of its most important functions, "can be only sanctioned by the express command of the supreme legislative power. The act of 1860 provides that “ The mayor, common council and. the several officers of the corporation of the said city of Hew York, and the said corporation, are hereby prohibited &c. from doing any other act to hinder, delay or obstruct the operation of said railroad as herein authorized.” Even if the necessary work, in completing this great plan of sewerage for the city, temporarily sus-
II. I think another maxim of the law may be applied to this case. Lex posterior derogat priori. "When the legislature, in 1865, passed an act allowing the defendants to construct and complete this plan of sewerage, it may be safely inferred that they intended to withdraw any obstacles to the work which any prior law permitted.
III. But I agree with the defendants’ counsel, that the true construction of the prohibition contained in the 4th section of the act of 1860 is, that it prohibits the defendants from obstructing the operation of the plaintiffs’ railroad by any act, the sole purpose of which was thus to obstruct it, and not that the prohibition was intended to prevent the defendants from initiating and carrying out great public improvements, intended for the relief of the necessities and the protection of the health of the citizens. Besides, it appears that it is entirely practicable for the plaintiffs to continue the operation of the road at the points where the sewers are in the course of being con- - structed, by removing the-tracks from the center to either side of the streets, at those points. So that, the truth is the plaintiffs are seeking to avoid comparatively trivial trouble and inconvenience by stopping the prosecution of a work which, beyond all question, will be of the highest possible advantage to the inhabitants of this city.
The order should he reversed, with costs, and the injunction dissolved.
Dissenting Opinion
The plain intent of the statute of 1860, creating the plaintiffs, was to protect them not only in the construction of their road, but also in its operationand accordingly it not only prohibits the city from doing any act to hinder, delay or obstruct the construction, but also the operation of the railroad; and it makes it incumbent upon the city authorities to do such acts as may be needful to promote the construction and to protect the operation of the road.
The convenience of the road for travel was a great public benefit, and the legislature meant to secure its uninterrupted use by the citizens. It is no answer to say that the building of sewers is also beneficial to the public, and necessary to the health of the city, which of course is of paramount importance; because it does not appear but that the sewer may be built without interfering with the plaintiffs at all. That the defendants have seen fit to get from the legislature an act which requires them to make a general plan for sewers in sewerage districts, does not affect the case", for they need not adopt, unless they choose, such a plan as will interfere with the plaintiffs; or if they have done so, they can apply to the legislature for relief so as to enable them to change that plan.
The plaintiffs having exhausted their right to lay their track, cannot lawfully remove it to any other part of the street, and it should not be suggested that they ought to be trespassers and wrongdoers even for a brief period; or that the public should be inconvenienced by having travel on the road suspended, when all that the defendants need do to have both of these desirable public benefits coexist, is to conform the plan of the sewerage district to the necessity of the case.
I think the order should be affirmed.
Order reversed.
Clerke, Sutherland and Cardozo, Justices.]