56 N.Y.S. 450 | N.Y. App. Div. | 1898
This is a taxpayer’s action brought under the Laws of 1881 (Chap. 531) as amended by the Laws of 1892 (Chap. 301), and the object of it is to restrain the laying of gas mains in certain streets in New York city upon the grounds that the defendant, the Northern Union Gas Company, which is laying the mains, has no franchise or right to do so, and that certain officials of the city, the commissioner of highways and the deputy commissioner of highways of the borough of the Bronx, have illegally granted the permit for the laying of said mains and are aiding and assisting the gas company in laying them without authority of law.
The theory upon which the complaint is drawn is that the gas company has not and never had power to carry on its business outside of the limits of the village of Williamsbridge; but it appeared upon the motion for the injunction by the opposing affidavits that
There is thus présented upon this appeal, as there was in the court below, two questions for determination, the first whether the plaintiff could maintain a taxpayer’s action to obtain the relief sought, and in that connection whether the complaint was sufficient, and the second whether the permits: granted by the department of public buildings, lighting and supplies, and by the department of highways, was the consent of the municipal anthoritiés, or whether the consent of the municipal assembly, as the successor of the .old board of aldermen, was required.
The first question, that of the right of a taxpayer to bring such action and what the complaint should allege, has been lately determined by this court in the case of Sheehy v. McMillan (26 App. Div. 140), which decision renders further discussion unnecessary, it being sufficient to say that, if the facts had been made to appear as" alleged in the complaint, there might be a good foundation for .the action. Upon the motion below, however, it was made to apjiear that the plaintiff had not proved such facts so far as the defendant, the Northern Union Gas Company, is concerned, and, as a result, he was compelled to change the theory upon which the complaint was framed, namely, that such company, by its articles of incorporation, was confined in its business operations within the limits of the village of Williamsbridge. In Sheehy v. McMillan (supra) it was held that “ If the complaint does not state a cause of action, then it necessarily follows that the plaintiff was not entitled to the order appealed from. Before lie could obtain an order" of this" character he was required to show, by his complaint, that he had a .good cause of action, and was entitled to a judgment against the
It was not disputed that the Northern Union Gas Company is the successor of the Northern Gas Light Company, and, in addition to its own- corporate powers, possesses as a successor in interest of the Northern Gas Light Company such powers as that company had. The Northern Union Gas Company was incorporated in 1897 under the Transportation Corporations Act, for the purpose of engaging in the gas business anywhere within the city of New York. It subsequently made a contract with the department of public buildings lighting and supplies of the city to light certain streets in the twenty-fourth ward, where the streets in question are situated, and one of the provisions of the contract stated that the gas company should have the right to lay pipes between certain dates in any of the streets in that ward upon applying to the commissioner of highways for a permit to open the streets. Upon application made, this permit was duly issued, authorizing the gas company to remove the pavements and the surface of the streets for the purpose of laying down mains.
The plaintiff, though not disputing these facts, contends that such permits do not constitute the consent of the municipal authorities as required by the Transportation Corporations Act. In other words, the plaintiff’s contention is that “ the consent of the municipal authorities,” as required by the act, referred -to the municipal assembly, and not to the heads of the departments named. In support of this contention, that without the special permission of the local legislative board the disturbance of the surface of the streets for the purpose of laying gas mains was illegal and unauthorized, we are referred to many authorities which have construed the term
- As we are dealing here with the wording and construction of statutes, we are compelled, even at the risk of unduly extending-this opun-ion, in view of the novelty and importance of the questions-presented, to set forth some of them at length. The Transportation Corporations Act (Laws of 1890, chap. 566, § 61)' provides as follows: “ Every such corporation.shall have the following additional powers: 1. If incorporated for the pmrpose of supplying gas for light, to manufacture, sell and furnish such quantities of gas as may be required in the city, town or village where the same shall be located, * * * for lighting the streets and pmblic or private-buildings or for other purposes; and to lay conductors for conducting gas through the streets, lanes, alleys, squares and highways^ in such city, villages or towns, with the consent -of the municipal authorities thereof, and under such reasonable regulations as they may prescribe; and such municipial authorities shall have p>ower to-exempt any such corporation from taxation on their personal property for a p>eriod not exceeding three years from the organization of the corporation.” ' .
The position of the gas conrpany is that, having been incorporated under the law, it is authorized to lay gas mains in the city of New York “ with the consent of the municipal authorities thereof,” and" that it has obtained that consent by procuring a contract with the department of buildings, lighting and supplies, and a permit from the commissioner of highways. The plaintiff, on the other hand,, contends that the municipal authorities referred to in the act are the.
We are now brought to a consideration of the various ¡provisions of the charter relating to the subject of streets, and the division of the powers to be exercised by the different bodies or departments in reference thereto. In that connection we should remember the principle referred to in the introduction to the charter by the com- ' missioners who drafted it, namely, “ The established rule of law which prescribes that a charter granted to á municipal corporation must be construed so strictly that nothing may pass by bare inference, but every substantial power must be found in the express terms of the grant.”
Coming then to the power conferred on the municipal assembly over streets in general, and more particularly in reference to their use in the laying of gas mains, we find by section 46 that “ Except as otherwise provided in this act, all the powers and duties conferred or charged upon the common council or the mayor, aldermen and commonalty of the city of New York, or-the board of aldermen thereof * * * shall be exercised and performed by the munici
■ The Legislature can, of course, confer the right upon a municipal ■corporation, not alone to give a consent, but also to grant a franchise, as is well exemplified by section 45 of the charter to which we have referred, where such power is conferred upon the municipal assembly with respect to railways and ferries. No such, power is anywhere given in the charter to the municipal assembly to grant franchises to gas companies. In addition to the' special authority given for certain specified purposes, none of which relate to gas companies, we find by section 49 (Subd. 4) of the charter the power ■conferred upon the municipal assembly “to regulate by general ordinance, the opening of street surfaces for purposes authorized by law.” - ,
■ We must look further, therefore, and see if the charter specially •confers on any local authority jurisdiction over the subject of gas companies. The charter further enacts by section 416 : “ It shall be the ■duty of the board of public improvements to prepare and to recommend to the municipal assembly all ordinances and resolutions regulating the following matters: ” (Subd. 2) “ The regulating * * * of streets * * * and the making of all excavations therein for public purposes; ” and by subdivision 10, “ The laying of gas pipes and electric wires underground, * * . "" ■ and the lighting of all public thoroughfares * * * and the opening of street surfaces
Reading these provisions together, it is difficult to avoid the con- . elusion that the “ municipal authorities ” whose consent is necessary for the laying of gas mains in the streets are the department of public buildings, lighting and supplies, and the department of highways. This is an undoubted departure from the plan or scheme under which the old government of the city was conducted, for therein the local authorities to which reference is made in nearly all prior legislative acts were the municipal council or board of aldermen. By the charter scheme, the new legislative body has special powers and duties conferred upon it, and the right is given to enact general ordinances affecting subjects which are specially confided to distinct and separate departments of the city govern
In reaching the conclusion that the consent of .the commissioners referred to, is the consent of the proper municipal authorities required hy the Transportation Corporations Law, we have not overlooked the provision in that act which gives the power to the local authorities to exempt the gas company from taxation for a limited time, nor the force of the argument based thereon, that as the municipal assembly could alone exempt gas companies from taxation, therefore, that body constitutes the municipal authorities whose consent is required. When the Transportation Corporations Law became a law, the municipal authorities therein referred to were . undoubtedly the local legislative body in any city, town or village, and in addition to granting a consent, had the right to exempt such ■companies from taxation. Now, however, by the charter, as stated, a radical departure has been made in the distribution of the powers and functions of government, and we are not to be controlled in ■our construction of the new charter solely hy an argument based upon the fact that formerly the same body was vested with the double right of granting consent and of exempting from taxation. Such an argument assumes that the existence of the language of the Transportation Corporations Law renders it impossible for the Legislature to enact that the one power may not be exercised by • one municipal authority and the other power by another municipal authority.
We deem it unnecessary to. discuss the other questions presented, as to what rights, if any, the respondent company acquired as the successor of the former company and by virtue of the consent and permit which it had in the twenty-fourth ward; thinking as we do, for .the reasons already given, that the respondent company has by the contract made with the department of. public buildings, lighting and supplies, which carried with it the permit to use the street for laying gas mains, coupled with the consent of the' commissioners of highways, conformed to the provisions of the law entitling them to proceed with the work of laying mains in the street in question'.
Barrett and Rumsey, JJ., concurred ; Ingraham, J., concurred in result on the ground that the plaintiff cannot maintain this action as a taxpayer upon the facts as they appear.
Order .affirmed, with ten dollars costs and disbursements.