Gaedeke v. Staten Island Midland Railroad

60 N.Y.S. 598 | N.Y. App. Div. | 1899

HATCH, J.

The very full examination which this case received in the court below, and the able opinions delivered by the learned judge in the decision of this and the Cortelyou Case, require little to be said by us. We may safely rest our decision of this case thereon. It is, however, so earnestly insisted by the appellant that the clause in the contract made by the defendant with the commissioners of the town of Southfield is void that we conclude to express our views thereon. It is conceded that the railroad company applied to the commissioners for their consent to lay its tracks in the highway, and that, as a condition of giving such consent, the railroad company agreed to transport passengers at a five-cent rate of fare between points named therein, and to issue transfers to any of its connecting lines through the-Clove road for such fare. It also appears that the railroad company violated this agreement, although it took advantage of the consent, laid its tracks, is operating its cars, and collects fares of passengers transported thereon. The defendant is a street-surface railroad corporation organized under the general act of 1884 (chapter 252). The contract which it made with the commissioners of highways of the town of Southfield was made and executed on the 30th day of December, 1895. By chapter 434 of the Laws of 1893, section 91 of the general railroad law was amended so as to require the railroad company-to obtain the consent of the commissioners of highways of the town where it was sought to acquire the right to construct its railroad upon the highways of such town, and this provision now remains the law. It was pursuant to this requirement that the defendant applied for and obtained the consent of the commissioners, and executed the contract. The defendant now says that this was an unnecessary proceeding, that such consent was not required, and that the contract is void, and this for the reason that by chapter 555, Laws 1890, the county roads of the county of Eichmond were placed under the exclusive jurisdiction of the board of supervisors of the county. This claim is only partly true. Examination of that act shows that the jurisdiction vested by it was for the “purpose of improving and maintaining the roadbed thereof as a road or roads for carriages or other vehicles, but for no other purpose.” Section 1. By section 7 of this act, the consent of the board of supervisors to lay any surface railroad upon the roads of the county was to be obtained in addition to the requirements of existing laws. By section 10 the act reiterated the provision of section 1 that such control by the board was only for the purpose of improvement and keeping the roads in repair, except as expressly authorized otherwise by the act, “and for all other purposes the said roads shall remain and be subject to the authority, control, and jurisdiction of the town, village, separate road district, or local authorities to which they shall respectively belong.” It is quite evident that the authority conferred by this act upon the board of supervisors and the authority vested in the highway commissioners by section 91 of the general railroad law can both stand together, and full effect be given to each. There is no inconsistency therein, and it becomes the duty of the court so to construe them as that both shall have effect. People v. Palmer, 52 N. Y. 83; Mongeon v. People, 55 N. Y. 613. If, however, there was complete repugnancy between the two acts, as the statute conferring power upon the highway commissioners was passed subsequent, the former statute would necessarily have to yield, as the later is the final expression of legislative intent. Pratt v. Munson, 84 N. Y. 582. We are not now concerned with the status of highway commissioners before the law, nor with their general powers and duties. It is presently sufficient to say that by law the power to give the consent under which the defendant acted was deposited with the commissioners, and, as it resided with them, they were the persons, and the only ones, who could give it. All of the consents which were obtained would have been ineffectual to authorize the construction of the road if their consent had been withheld. Nothing in the highway law operates to destroy the authority vested in the commissioners for reasons already assigned. It may be conceded that no authority exists to exact an unreasonable requirement as a condition of granting consent to construct a railroad, or where an act provided the conditions upon which the consent should be granted it is probable that others might not be added. Illustrations of this rule are found in Re Kings Co. El. R. Co., 105 N. Y. 97, 13 N. E. 18, and Beekman v. Railroad Co., 153 N. Y. 144, 47 N. E. 277. But conditions which are for the benefit of the public, which are proper in character, and are not prohibited, either actually or explicitly, are properly exacted. People v. Barnard, 110 N. Y. 548, 18 N. E. 354; Peekskill, S. C. & M. R. Co. v. Village of Peekskill, 21 App. Div. 94, 47 N. Y. Supp. 305. Section 93 of the general railroad law requires that the consent, when given, shall provide for but one fare over the proposed line of road. While such provision is not controlling of the present question, yet it indicates clearly that the condition imposed was in harmony with the spirit of the railroad law, and was of such a character as was proper to exact. How far the contract is operative as to carriage upon the entire line, it is not now necessary to say. There was clear violation of its provisions in the present case, and for that reason the judgment should be affirmed.

Judgment of the municipal court affirmed, with costs. All concur.