157 N.Y. 453 | NY | 1899
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *455
I quite agree that if all the views expressed in the opinion inColonial City Traction Company v. Kingston City R.R. Company
(
We are thus brought to the consideration of a question which may have been incidentally written about, but has never been decided by this court. It has never been decided because it has not been involved. Aye, more than that, it has not been considered; for there has been nothing in any situation actually presented to this court to suggest that such *458
a question might arise. This defendant, relying upon the statute to which we have referred, entered into a contract made in conformity with the provisions of such statute, by which it acquired the right to run its cars over some portion of the tracks of the Atlantic Avenue railroad. The plaintiff, an abutting owner, sought to restrain the defendant from enjoying the privilege for which it contracted, but the courts have so far held that the defendant's acts were entirely legal, and that the plaintiff has no legal right or interest with which the defendant interferes through the use that it makes of the tracks of the Atlantic Avenue Railroad Company. That this decision cannot be questioned on principle is certain if it be the fact that at the time of the acquisition of the franchise over the street in question by the Atlantic Avenue Railroad Company, such a statute as the act of 1839 was in existence, and was not in conflict with the Constitution or some other statutory provision. All these questions were discussed by the court in People v. Brooklyn,F. C.I.R. Co. (
That decision has not been questioned in the slightest degree in any case to which our attention has been called, *459 prior to the present review. But as it is now challenged, a brief consideration of the reasons justifying it will not be out of place.
It is conceded that the act of 1839, entitled "An act authorizing railroad companies to contract with each other," has been continued in force from the time of its enactment to the present, and is now to be found in section
Statutory enactments in existence at the time of the adoption of this provision of the Constitution were not aimed at, for the reason doubtless that chapter 140 of the Laws of 1850, section 28, subd. 5, provided that the assent of the corporation of a city was necessary to authorize the construction of any railroad upon the streets of a city, and chapter 140 of the Laws of 1854, section 1, prohibited the construction without the consent of a majority in interest of the owners of property upon the streets upon which a railroad is to be constructed. But as it was possible for the legislature to change the statutes in that respect, in the language of Judge FINCH (in
This assertion is based upon the assumption that the Atlantic Avenue Railroad Company acquired its franchise after the passage of the act of 1854, which required the consent of the abutting owners. We do not, however, rest our decision upon that ground, for we are not advised by the record of the date on which the Atlantic Avenue Railroad Company acquired the right to construct and operate its railroad on Bergen street, between Rogers and Nostrand avenues; but in any event, as we have already seen, both on reason and authority (People v. B., F. C.I.R. Co.,supra), the act of 1839 has not been affected by the Constitution, and hence the Atlantic Avenue Railroad Company has a right to contract with another corporation for the use of its tracks. If the Atlantic Avenue road acquired its franchise after the act of 1854 had been passed, then the plaintiff necessarily consented to the making of such a contract, as we have already observed; if the franchise was acquired before, that road, nevertheless, became vested with the right to make such a contract by the statute of 1839. The constitutional amendment of 1874 did not, as we have seen, *462 attempt to take away that right, nor did it attempt to vest in the legislature the power to take it away by legislative enactment. Those provisions had relation solely to future legislation that might affect the creation of new corporations and not the destruction of old ones, or any of the rights such corporations had secured under statutory authorization. If, then, it be true, as we shall attempt to show later that it is not, that the legislature has since the constitutional amendment of 1874 attempted to deprive the Atlantic Avenue Railroad Company and other surface railroad corporations similarly situated of a valuable part of their franchises, such legislation is unconstitutional and void.
If the purpose of the legislation under consideration was to deprive an assignee corporation of the right to use the tracks of another corporation without the consent of abutting owners, then the effect intended and actually accomplished (if the enactment be valid) is to burden what was an absolute right, with a necessity for the consents of abutting owners before the right can be made available to the assignee corporation. Such a burden in practical effect might destroy that which was originally vested in the assignor corporation as a part of its franchise, for, as the law now stands, a railroad corporation desiring to use the tracks of another railroad cannot acquire from the municipality or the abutting owners a franchise to run cars over those tracks. Every part of the franchise was given to and acquired by the corporation constructing the railroad; no part of it was retained, nor any right to carve out of it another franchise, in whole or in part. The consent of the abutting owners that one railroad corporation should use the tracks of another could not, therefore, confer or contribute towards the bestowal of a franchise, and in the event of their refusal to consent they might very well claim that the Appellate Division is not authorized to grant consent in such a case under our present statutes, and thereupon insist that they were in a position to prevent the use of the tracks by the assignee corporation until their demands should be complied with. If, however, this contention should not avail, the *463 Appellate Division might in the exercise of its discretion refuse to consent, and thus operation under the contract would be prevented. But if the burden were less onerous, indeed, if it were only slight, it would be beyond the legislative power to impose it.
It is well settled that a perfected railroad franchise constituted either by direct legislative grant or by consent of local authorities and property owners in pursuance of the Constitution and general laws, especially when followed by actual construction and operation, is a property right that cannot be afterwards taken away or diminished, either by subsequent constitutional amendment or by legislative or municipal action, except in the exercise of the police power or the right of eminent domain. (People v. O'Brien,
Salability is an essential element of property, and the destruction or the diminution thereof is a taking of property that cannot be done except through the exercise of the right of eminent domain or of the police power. (Wynehamer v. People,
The salability of the property right in question is affected and its value diminished, if not destroyed, if the assignee thereof cannot make use of it without the consent of the abutting owners. It, therefore, follows that if the legislation under consideration on its face attempts to prevent a railroad corporation from possessing the right to contract for the use of its road with another corporation, from conferring on that other the absolute right to make such use, it is wholly without authority and void, and for that reason the judgment under review is right. But it seems to us very clear that the legislature has made no such attempt; for there is no statute that has for its purpose the cutting down of railroad franchises so as to eliminate therefrom the element conferred by the statute of 1839. Instead of sections 91 and 102 being in conflict with section 78, they are in harmony with it, and together clearly state the legislative policy as it has been understood from the beginning by the profession and the courts. They mark out the methods for the creation of franchises, and together with other sections, measure their extent. The legislation has relation to the creation of surface railroads, not their total or partial destruction. It points out on the one hand how, if at all, a franchise to operate a street surface railroad may be obtained. One of the necessary steps is the obtaining of the consent of the municipal authorities; another is that the consent of a majority in interest of the abutting owners shall be obtained, but if it cannot, then the consent of the Appellate *465 Division may be obtained in its stead, when the road may be constructed notwithstanding the refusal of the abutting owners to consent. Other sections declare the rights that are thus acquired, which together are called a franchise, and among those sections is section 78, which provides that one of the rights thus acquired is that of contracting with another corporation to lease to it the right to use its road.
Thus, somewhat in advance of orderly argument have I presented my deductions from a consideration of the whole subject. My justification, however, is in the hope that thereby the purpose of the statutes to be referred to may be more readily appreciated.
We have already seen that section
Since the enactment of the General Railroad Law sections
"§ 91. Consent of Property Owners and Municipal Authorities. Such railroad shall not be built, extended or operated, unless the consent in writing, acknowledged as are deeds entitled to be recorded, of the owners of one-half in value of the property bounded on, and also the consent of the municipal authorities having control of that portion of a street or highway upon which it is proposed to build or operate such railroad shall have been first obtained."
We have thus given a review of the legislation in this state as to the necessity of consents of local authorities and property owners to the construction, maintenance or operation of street surface railroad tracks in streets. It is evident that the legislature, from the beginning to the end of this general legislation, has never intended to require consents of local authorities or property owners to the operation by one railroad company of its cars over the tracks of another railroad company by virtue of a traffic contract with such other railroad company, but that it intended to require such consents only to the construction, maintenance or operation of new railroad tracks constituting either main line, branches or extensions. Giving to the phraseology of the statutes its ordinary meaning, we have a perfectly working harmonious system, one that accords not only with the professional understanding of its purpose, but with the history surrounding the development of the different branches of the law, until finally they were consolidated into one general act. When the legislature incorporated chapter 218, Laws of 1839, into the General *468 Railroad Act, and provided that it should constitute a continuance of that chapter and not a repeal and re-enactment thereof, it made it perfectly clear that it was the legislative intent not only that such a right should thereafter be continued to all railroad corporations created under and by virtue of the provisions of the general law, but that it should preserve the statute from even an opportunity of controversy as to whether it was in violation of the spirit of the constitutional amendment of 1874. That amendment did not, as we have seen, affect past legislation, and, therefore, could not, by any possibility, be said to affect a provision of law upon that subject that should be continued in a general railroad law instead of being re-enacted. So, too, it continued the legislation upon the subject of the consents of the municipalities and also the legislation upon the subject of the consent of the abutting owner. It is quite evident that it was the legislative understanding that these several enactments were in harmony with each other and could stand together, and there really does not seem to be any room for questioning it; but if there were, it would be the duty of the courts to harmonize the enactments. No such effort, however, is needed. By the General Railroad Law, in order to acquire the right to construct, extend or operate a railroad upon a public street, there must be obtained, first, consent of the municipal authorities; second, consent of a majority in interest of the abutting owners, or, if that cannot be had, the consent of the Appellate Division. When these consents have been obtained and the railroad corporation obtaining them has in all other respects complied with the commands of the General Railroad Law, it acquires what is known as a franchise, and one of the important features of that franchise consists in the right to contract with another corporation for the use of its tracks, which right becomes a part of the franchise.
Thus reading together the several sections of the Railroad Law, and we see no other way in which they can possibly be read except by eliminating absolutely from consideration the oldest and most firmly grounded of all the statutes we have *469 referred to, we come necessarily to the conclusion that the court below was right in holding that the Atlantic Avenue R.R. Co., when it acquired its franchise, secured as a part of it the right to contract with another railroad company to use its tracks, a right that neither the municipality nor the abutting owner could take away or impair.
Already our consideration of the general subject has proceeded to unreasonable length, but it may not be out of place to state the point of divergence resulting in such totally different views. On the one hand the underlying idea is that in order to run over the tracks of another railroad, a railroad corporation must acquire a new franchise for that particular purpose, which, if true, would necessarily require the consent of the municipality and the abutting owners; while on the other hand it is that such railroad acquires a franchise as to streets upon which it constructs its railroad, but its right to use the tracks of the other railroad it gets by contract with the corporation owning the franchise and all of it, which includes by the express terms of the statute the right to make a contract for such use.
Let us stop a moment to see what is involved in the claim that a new franchise is required to operate on the tracks of another railroad. (1) It necessarily denies that the constructing railroad obtained by its franchise all that the statute provided for. (2) It assumes that there can be more than one franchise over the same right of way, and indeed as many franchises as there might be railroad corporations desiring its use. (3) That the right to confer it was reserved to the abutting owner, notwithstanding the statute positively declared it should pass to the constructing railroad. (4) That what the statute granted was not an absolute right, but something which might ripen into one provided the necessary consents could be obtained, notwithstanding the absence of a sentence, phrase or word suggesting such a limitation. (5) That the right to contract for the use of its property conferred by the statute upon the constructing railroad is not interfered with by enjoining every other railroad corporation from making use *470
of the tracks, although a contract for that purpose be obtained. That such a holding would be of far-reaching effect no one can doubt. That it would confer as a right that which at present is but a shadow, and deprive others of rights vested as firmly and as sacredly as any of the rights we treasure and enjoy, there can be no doubt. And where is to be found the basis for this radical change in the well-understood law of the state, this claim that notwithstanding the statute invests a corporation with such a right, it is not available, because section 91 of the statute provides that "A street surface railroad, or extensions, or branches thereof, shall not be built, extended or operated unless the consent in writing * * * of the owners of one-half in value of the property" be obtained. The words "or operate" in that sentence are seized hold of to the exclusion of all the other portions of the Railroad Law, to destroy the right expressly conferred by another section. There is no rule of construction which will permit a court to give these words such an effect. The history which occasioned the incorporation of the words "or operate" does not suggest that it was intended for such a situation as we have here presented; on the contrary, it is well known that early in the history of street surface railroad building it was quite common to construct extensions on Sundays or legal holidays, and then for the managers to say, "What are you going to do about it? You can't tear up our tracks and you can't prevent us from using what is our own." Hence, a mandate of the Constitution and a statute depriving a corporation of any advantage by reason of such construction by denying to it the right to operate in the absence of consents. The statutes, considered together, as we have already pointed out, show that it was intended to apply to the creation of new franchises, and the language employed is entirely appropriate to that end, and as thus construed it is in harmony with section 78. Special attention is called to section
The point of view from which it is possible to see in the words "or operate" such portentous meaning as to cause them to override and destroy rights vested by virtue of the command of solemn statutory enactments is taken through sympathy for the abutting owner. No statute has ever, in terms, conferred upon him an absolute right to prevent the operation of cars. He never had any consideration in the premises under the laws of this state until the act of 1854, and from that day to this his refusal to consent has been of no avail if, in the judgment of the Appellate Division, the public interest required that a railroad should be constructed. But it is said that the language of the statute that was intended to measure out just the amount of consideration that should be paid to him does not do so in fact, because the potency of the words "or operate" enables him to claim as a right that he can prevent the use of the tracks in front of his premises by a new railroad under a contract with the old railroad, to whose construction he had consented.
In no judicial opinion reaching such a conclusion have the provisions of the act of 1839 (now section
The judgment should be affirmed, with costs.
Concurrence Opinion
Although I was not present when the Colonial City Traction
case was decided (
Dissenting Opinion
On the 25th of October, 1894, the plaintiff, an abutting owner upon Bergen street, in the city of Brooklyn, brought this action to restrain the defendant, a domestic corporation organized under the General Railroad Act of 1890, from constructing, operating or maintaining a surface railroad through Bergen street in front of his premises, upon the ground that it had not obtained the consent of the property owners as required by law.
Upon the trial it appeared that on the 19th of June, 1894, the defendant received the consent of the local authorities of said city to construct and operate a street railroad through several streets, including one block on Bergen street, upon condition that it should comply with all the provisions of the Railroad Law, but it had not obtained the consent of a majority of the property owners on said block or of the Appellate Division of the Supreme Court to the construction or operation of said road thereon. The Atlantic Avenue Railroad *473
Company, organized in 1872, had for many years prior to the commencement of this action operated a double-track street surface railroad along Bergen street in front of the premises of the plaintiff, who owned no part of the street. On the 13th of October, 1894, an agreement was entered into between the defendant and the Atlantic Company, which, among other things, provided that "the Nassau Company, for the purpose of operating
its railroad on said portion of Bergen street (being the part in question) may use the tracks and wires of the Atlantic Company thereon, and may, upon and along said portion of Bergen street, place and maintain its feed wires upon the poles of the Atlantic Company, and shall pay the Atlantic Company a proper rental for such use of said tracks, wires and poles." After the commencement of this action, and on the 2d of November, 1894, a second agreement was entered into between said companies, which provided that "the cars of the Nassau Company may be moved over the tracks of the Atlantic Company on Bergen street (through the block in question) and the Atlantic Company agrees to furnish the power to move the said cars on said portion of Bergen street. The Nassau Company agrees to pay the Atlantic Company annually for the use of said tracks and power such sum as the parties hereto may hereafter agree upon, and if they fail to so agree, the annual compensation shall be determined as provided in section
The action was tried at a Special Term of the Supreme Court, and the justice presiding held that the defendant, under "an agreement," not specifying which, had "the legal right to operate its railroad over the tracks of the Atlantic Avenue Railroad Company in Bergen street * * * notwithstanding the property owners upon Bergen street * * * have not given their consent to the construction and operation of the defendant's railroad; that the proposed operation by the defendant of its railroad on Bergen street is lawful, and that the plaintiff is not entitled to an injunction enjoining and restraining the defendant from such operation; that the *474 defendant, not having the consent of the property owners on Bergen street, * * * is not entitled to construct a railroad thereon," and judgment was directed accordingly, without costs to either party.
The trial court thus held that the consents of abutting owners were not required for the operation of a street railroad as distinguished from the construction thereof, and the General Term affirmed the judgment, one of the learned justices dissenting.
There is no dispute as to the facts, and the question presented for us to determine is whether the defendant had a legal right as against the plaintiff, under the circumstances stated, to operate its railroad upon the tracks of the Atlantic Avenue Company, through that portion of Bergen street passing in front of the plaintiff's premises. The determination of this question requires us to consider section 18 of art. 3 of the Constitution, chapter 218 of the Laws of 1839, and several sections of the Railroad Law.
Said section of the Constitution provides that "the legislature shall not pass a private or local bill in any of the following cases." Then follow thirteen specifications, and, among others this: "Granting to any corporation, association or individual, the right to lay down railroad tracks." After this enumeration the section provides that "the legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction oroperation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the Appellate Division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall *475 determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners." (Const. art. III, § 18, as amended in 1874 and continued in the revision of 1894.)
The statute of 1839, entitled "An act authorizing railroad companies to contract with each other," provides that "it shall be lawful hereafter for any railroad corporation to contract with any other railroad corporation for the use of their respective roads, and thereafter to use the same in such manner as may be prescribed in such contract." (L. 1839, chap. 218.) While this act was repealed in 1890, the repealing statute provided that the provisions of the Railroad Law, so far as they are substantially the same as those of laws previously existing, "shall be construed as a continuation of such laws, modified or amended, according to the language employed in this chapter and not as new enactments." (L. 1890, chap. 565, § 182.) By section
Section 91, the next in order, provides that "a street surface railroad, or extensions or branches thereof, shall not be built, extended or operated unless the consent in writing, acknowledged or proved as are deeds entitled to be recorded, of the owners of one-half in value of the property bounded on, and also the consent of the local authorities having control *476 of that portion of a street or highway upon which it is proposed to build or operate such railroad, shall have been first obtained." (Id.) The rest of said sections are not material in this controversy, nor are the amendments passed in 1895 and 1896. (L. 1895, ch. 545; L. 1896, ch. 855.)
Section 102 prohibits street surface railroad corporations from constructing, extending or operating their roads or tracks in that portion of any street in which there is already a street surface railroad without the consent of the corporation owning and maintaining the same, except that any street surface railroad company may use the tracks of another street surface railroad company for a certain distance, varying with the population of the place where it is located, upon condemning the right to do so by proceedings in court. These are all the provisions of the Constitution or statutes that are regarded as material to the determination of the question before us.
The act of 1839 must be regarded as having been continuously in force from the date of its passage until the present time, for although that statute has been repealed in form it has been continued in fact by consolidation with many others in the comprehensive act now known as the Railroad Law. The statute of 1839, in connection with the constitutional amendment above quoted, received consideration from this court in People v.Brooklyn, Flatbush Coney Island Railway Company (
The act of 1839 was doubtless passed with reference to steam railroads only, as no other kind was then in existence. It is questioned whether, as continued in force by section
In Colonial City Traction Company v. Kingston City RailroadCompany (
While in discussing that case language was used not applicable thereto, because it was a case of condemnation, but applicable to a case like this where there is a consent by one railroad to permit another to use its tracks, still the language above quoted was directly applicable and germane to the case *479
then in hand. Upon the reargument we limited the effect of the decision to proceedings in invitum to acquire the right to use the connecting track of another company, but in no other respect did we modify our previous conclusion. (
The courts below have held that a street surface railroad may be operated upon a public street without the consent of a majority of the abutting owners or of the Supreme Court, notwithstanding the command of the Constitution and the Railroad Law. As we said in the Kingston case, "the consent required is not simply to the laying of the tracks, but also to the operation of the road. * * * An abutting owner might be willing to permit one company to operate its line through the street in front of his property, which would involve the passage of but three or four cars an hour, but not be willing that several companies should have that privilege, which might involve the passage of a car every two minutes. It is not the laying of tracks but the running of cars that constitutes the chief burden, both upon the street and the property of the abutting owners. Consent to the burden of one road should, in reason, be limited to that road with whatever increase of business it may have, but should not be extended to as many roads as can crowd their cars into operation upon the street. It *480 would be an unreasonable construction to hold that this is what the public authorities or the private citizens intend when they consent to the building and operation of a street railroad. Instead of an advantage to the public or to those owning property on the street, which is the inducement to obtain consent, it might result in a heavy and unexpected burden upon both, without any power to prevent it, and yet with no intention to consent to it. It would be a perversion of the consent given by extending it far beyond the intention of the parties."
I do not wish to retreat from the position thus taken, which was concurred in by every member of the court who took part in the decision.
The legislature had the power to prevent railroad companies from operating their roads without first obtaining the consents of the abutting owners, for it has all the power of legislation that the people can grant except as it is restrained by the Constitution, which contains no prohibition upon the subject. (Koch v. Mayor, etc.,
It is, however, contended that the right of the Atlantic Avenue Company to contract, under the act of 1839, for the use of its tracks by another road, was a property right of which it could not be deprived except by the power of eminent domain or the police power.
If the contract had been made between the two roads before the passage of the act requiring consents as a condition precedent to the operation of the defendant's road, a different question would have arisen, as to which I express no opinion. In this case, however, the prohibition was in force not only before the traffic agreement was made, but before the defendant was in existence, and it has no right to enter into the agreement without complying with the condition required by its charter. The Atlantic Avenue Company is not a party to this action, and its rights are not involved. If the legislature had the right to create the defendant, it had the right to restrict its power in any way that it saw fit, either by wholly preventing it from making certain kinds of contracts, or by preventing it from making them except upon a prescribed condition. A corporation can make no contract whatever, except through the permission, express or implied, of the legislature. It is a "mere creature of law," and has no powers except those conferred by statute, either specifically or by necessary implication. When the legislature created the defendant it had the right to prevent it from operating its railroad, under a traffic agreement or otherwise, without the consent of the abutting owners or the procedure in court authorized in lieu thereof.
It is contended that if we hold that a traffic agreement cannot be made between two surface railroad companies so that one may operate its railroad over the tracks of the other without the consent of the abutting owners, the precedent will injure the value of railroad properties as well as the bonds secured by mortgages thereon in the hands of purchasers in good faith.
The argument based upon inconvenience does not change *482
the meaning of the statute, although in a case of doubtful construction it is worthy of attention. The meaning of section
The judgment should be reversed and a new trial granted, with costs to abide the event.
PARKER, Ch. J., reads for affirmance. All concur (GRAY, J., in memorandum, and BARTLETT and MARTIN, JJ., in result), except VANN, J., who reads for reversal.
Judgment affirmed, with costs. *483