102 N.Y. 343 | NY | 1886
The order of the General Term, from which this appeal is taken, denied the application of the Thirty-fourth Street Railroad Company, a corporation organized under the Street Surface Railway Act, passed May 6, 1884, for the appointment of commissioners to determine whether the proposed road of the petitioner ought to be constructed. The petition upon which the application was made, avers the incorporation of the petitioner under the act of 1884; that its route extends from the ferry on Hudson river, at Forty-second street in the city of New York, to Tenth avenue, and thence to Thirty-fourth street, and through Thirty-fourth street from the Hudson river to the East river; that it had obtained the consent of the mayor, aldermen and commonalty of the city of New York, to the construction and operation of its road, but had been unable, after diligent effort, to obtain the requisite consent of the owners of property bounded on that portion of the street upon which the proposed road was to be constructed; that due notice of the *347
application had been given pursuant to the fifth section of the act, and concludes with a prayer for the appointment of commissioners under its provisions. The granting of the application was resisted by the owners of abutting property on Thirty-fourth street, on two grounds: First. That the route of the proposed road of the petitioner is coincident in part with the routes of existing surface street railroads in actual operation, constructed prior to the passage of the act of 1884, whose consent to the construction of the petitioner's road had not been obtained, but had been refused, and second, that the proposed road would greatly damage property abutting on the streets through which it was to be constructed, and that neither public necessity nor convenience required the construction of a street railroad on the route of the petitioner. On the hearing of the application the petitioner proved the substantial averments of the petition, and on the part of the contestants it was shown that the part of the petitioner's route on Forty-second street and Tenth avenue, comprising about three-fifths of its whole line, was coincident with the route of other street railroad corporations, who had constructed and were operating roads thereon under their several franchises, and that these corporations had refused to consent to the construction of the road of the petitioner. The contestants also gave evidence tending to show that the proposed road would seriously impair the value of private property on Thirty-fourth street, and that no public interest required its construction. The majority of the judges of the General Term concurred in opinion that the authority vested in the court by the act of 1884, to appoint commissioners to determine whether a proposed surface street railroad ought to be constructed and operated, in case the requisite consents of property-owners could not be obtained, was discretionary, and not imperative, and that as it had been made to appear that the consent of the other railroad companies operating coincident routes, could not be obtained, and as under the act the obtaining of such consent was a condition precedent to the right of the petitioner to proceed with the construction of its road, the application should be denied in accordance with the maxim, Lex neminem cogit ad *348 vana. One of the two judges who concurred in the decision, was of opinion that the application should be denied upon the further ground that it appeared by the affidavits on the part of the contestants, that the property abutting on Thirty-fourth street, on the line of the proposed road, would be greatly depreciated in value by its construction and operation. We cannot review an order resting in the discretion of the court below, and the point to be determined is, whether upon the case presented, the petitioner was, as matter of law, entitled to an order appointing commissioners pursuant to the application. The determination of this question involves a consideration to some extent of the legislative scheme embraced in the act of 1884. The legislature in dealing with the subject of street railways, was under certain restrictions imposed by article 3, section 18, of the Constitution. It is sufficiently exact for our present purpose to state that under the constitutional provision, authority to construct and operate street railroads must be conferred by general laws, and then only on condition of obtaining the consent of the local authorities, and also of the owners of one-half in value of the property bounded on that portion of the street or highway upon which the proposed road is to be constructed, or in case the consent of property-owners cannot be obtained, the section declares that "the General Term of the Supreme Court, in the district in which it (the railroad) is proposed to be constructed, may, upon application, appoint three commissioners, who shall determine 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." The act of 1884 is a general law for the construction of surface street railways, and embodies the constitutional conditions of consent by the local authorities and of the property-owners, with the proviso, also authorized by the Constitution, for a determination by commissioners to stand in lieu of the consent of property-owners, in case such consent cannot be obtained. In addition to the constitutional conditions, the act annexes a third condition not enjoined therein, viz.: that no surface street railroad company shall *349
conduct, extend, or operate its road or tracks in that portion of any street, avenue, road, or highway in which a street railroad is or shall be lawfully constructed, except with the consent of the company owning and maintaining the same, with a qualification not material to the present inquiry (§ 14). The fourth and fifth sections of the act are framed to give effect to the last clause of article 3, section 18 of the Constitution, relating to the appointment of commissioners. The fourth section authorizes the company, in case the consent of property-owners required by the act cannot be obtained, to apply to the General Term of the Supreme Court "for the appointment of three commissioners, to determine, after a hearing of all parties interested, whether such railroad ought to be constructed and operated." The fifth section directs that notice of the application shall be given, and served upon the non-consenting property-owners, and that the General Term to which the application shall be made, upon due proof of the service of the notice, "shall appoint" three disinterested persons to act as commissioners. The sixth section declares that the commissioners shall determine, after a public hearing of all the parties in interest, whether the proposed railroad ought to be constructed and operated, and shall make a report thereon, with the evidence, to the General Term, and that the determination of the commissioners that the road ought to be constructed and operated, confirmed by the said court, "shall be taken in lieu of the consent of the property-owners." The right of the Thirty-fourth Street Railroad Company, under the act of 1884, to construct and operate its road, was subject, therefore, to three precedent conditions, the consent of the local authorities, the consent of property-owners, or, in lieu thereof, the determination of commissioners in its favor, and the consent of the companies having coincident routes. It is clear that all these conditions must be performed before any right to proceed with the construction of the road, or any part thereof, can be exercised. This proposition, however, assumes that the condition requiring the consent of railroad companies having coincident routes was lawful. This point was considered *350
by the General Term, and the power of the legislature to annex this condition was affirmed, and we concur in the conclusion of the court below upon this branch of the case. The opposite view is urged upon two grounds, first, that the Constitution has prescribed the conditions upon which street railroads may be constructed, and by implication excludes the imposition by the legislature of conditions other than those prescribed therein, and second, that a condition requiring the consent of existing railroad companies, to the construction or operation of another road, is a grant of legislative power to the company whose consent is required, and is therefore void. The first contention proceeds upon a misconception of the object of the constitutional provision, and of the rules governing the interpretation of constitutional restraints upon legislative power. The plain purpose of the Constitution in requiring the consent of the local authorities and of property-owners to the construction of a street railroad, was the protection of public and private interests against hostile and injurious legislation, and to prevent the appropriation of highways to railroad uses by legislative grant, without consulting the interests of the locality. The consent of the local authorities and of property-owners was therefore made necessary, but to meet the contingency of an unreasonable opposition on the part of property-owners, a tribunal was authorized to be created to determine whether the public interests required the construction of the proposed road, whose determination in its favor, when confirmed by the court, was to stand as a substitute for such consent. But the Constitution, neither by express language nor by implication abridges the legislative power over the subject outside of the matters particularly enumerated. It needs no citation of authorities to sustain the postulate, that except as restrained by the Constitution, the legislative power is untrammeled and supreme, and that a constitutional provision which withdraws from the cognizance of the legislature a particular subject, or which qualifies or regulates the exercise of legislative power in respect to a particular incident of that subject, leaves all other matters and incidents under its control. Nothing *351
is subtracted from the sum of legislative power, except that which is expressly or by necessary implication withdrawn. The legislature is prohibited from granting a franchise to construct a street railroad, except upon certain specified conditions. But it is not prohibited from annexing further conditions not inconsistent therewith, and whether other conditions are necessary or proper, is a matter resting in the wisdom and discretion of the legislature. The claim that the provision in the act of 1884, requiring a company organized thereunder, whose route is coincident with that of another road, to obtain the consent of the latter to the construction of the new road, before it can proceed to construct or operate the same, constitutes a delegation of legislative power, is not we think well founded. The act of 1884 was complete and operative from the moment of its passage. The franchise acquired by a company organized under its provisions, is perfect according to the nature of the franchise intended to be given, from the moment the corporation comes into existence. The legislative grant was conditional, and not absolute. The consent of another company in a case where such consent is required, confers no franchise upon the company by whom it is obtained. The consent simply meets one of the conditions prescribed by the statute upon which the right of the company to construct and operate its road depends. If consent is refused, the law is not defeated, but remains perfect and complete as before. The company upon consent being refused, is not deprived of its franchise. A failure to obtain such consent simply puts in abeyance its right to proceed with the construction of the proposed road until the obstruction is removed, and this precise situation was within the contemplation of the legislature when the act was passed. The legislature imposed the condition in its discretion, for the protection of existing companies. It may hereafter in its discretion remove the restriction and abrogate the condition. But its right to impose it is unquestionable. Whether the legislature in creating this condition, proceeded upon public reasons, or had in view the protection of private interests only, does *352
not affect the question of legislative power. The legislature by the act of 1884, in substance determined that it was inexpedient to permit a competing street railroad to be constructed on the line of another road, unless the existing road should consent. This was a contingency subject to which the petitioner acquired its franchise. The existing company, whether it consents or refuses to consent, neither creates the franchise, nor defeats it, and whether it consents or not, there enters into its decision no element of legislative power. In the legislation considered in Barto v. Himrod (
All concur.
Ordered accordingly.