*1 Decided Oases
IN THE COURT OF APPEALS
OE THE State of New York,
Commencing January, 1887, [*] In the Matter of the Petition of the New York Cable Appellant,
Company, The Mayor, Aldermen Commonalty City et al., of New York, Respondents. 1875, Aqt”
The act “Rapid known (Ohap. as the Transit Laws ” “ 1875), prior to the passage of (Chap. the General Surface Act 1884), Laws of companies authorized the formation of to construct surface, street on the operated hy any to he other than J., animal. dissenting.) (Earl, to, The “General Surface Act” was not intended and does not inter- rights fere company street surface organized railroad passage its Act;” before “Rapid under only prohibits construction corporations surface hy roads organized. thereafter saving clause in The protects, the General Surface Act” only not perfected rights consummated company organized, theretofore had, rights as company but such although subject inchoate and performance conditions; subsequent perform further hy J., anee of perfected. those dissenting.) conditions are (Earl, As, however, “Rapid prescribes proceedings hy Transit Act” rights may acquired, compliance which he a substantial with the requirements precedent, per- material without the act is a condition incorporated or legally formance of which never became acquired any rights under the act. ” “ Rapid (§ 6), requiring Transit Act provision intent of city to fix and determine mayor by appointed the commissioners roargument. [*] This volume were reported also contains when reached two cases, in their the first order, one, as motions Wright v. Chapin, post were then pending for page N, Y. Co. v.
Statement of case. railways, portions proposed railway the or the time within which or constructed, respect corporation only shall be to limit the thereof is possible prosecute work, it during time for it the exclud- to to ing legal prosecution. time when exist to such barriers Where, therefore, appointed of New by 'mayor the commissioners the twenty-nine different routes specified York a time within which each of completed, provided should by should be but that the time located them obtaining requisite consent of begin to run the date the the from of authorities, or, of to the local in case of failure owners consent, procure report such from the date of the confirmation of the court; provided appointed that the by of commissioners the and also unavoidably proceedings pendency legal time consumed or the of authorities, public open grade or the interference of or the omission to Held, part this was a shall not be deemed a of the time limited. compliance substantial with the act. commissioners, association, instead by mayor’s of the The articles framed 7), forfeiture providing, required by the release and (§ of said act for acquired supervisors franchises rights the county of the of all completed in corporation, were not proposed railways in case the time, railways were of provided, portions that in case the several limited, completed rights and franchises within each the time railways not com- portion railway so “for and as of such or Held, a material pleted,” that this was shall be released and forfeited. act; provision should departure requirements that the from the privileges; for the of all the have been release forfeiture Legis- provision attempt of the an to override action was ” “Rapid Act refusing to the lature in to make amendment 393, city New (§ Chap. 1883),applicable to of 1883 Laws York, the articles by incorporating amendment in the substance of association. Also, held, law, or declaring a forfeiture general that as there was no compliance provision supervisors, with the requiring a release to the intent, carry the failure to legislative out the necessary was comply was in the articles. a fatal defect Also, held, -1870) (Chap. Laws of that while the act York, super- composed of supervisors county of the board of of New abolished, visors, a new appointed, or declared as before elected was 1870) and is in supervisors (Chap. Laws was created board forfeited and may be company to which the franchises of the existence released. mayor’s provision (§ 5),requiring Under the Transit Act plan to fix construction plans commissioners or is, least, they determine railways, it shall at essential contemplated overground underground,
whether road shall be an road, ques- this part to determine surface on their and a failure ÍT. Y. oe N. Mayob, Co. v. 1887.]
Statement of case. comply failure one of precedent is a tian conditions corporate power. acquisition commissioners, incorporated By the resolutions in the articles of association, out, several routes laid as to left was subse- quent company whether election should be surface or routes, elevated to other where the provided roads As articles for ele- roads, track, authority vated with a double given time, to add might, such other tracks as from time to needed to *3 accommodate increasing and to make traffic such to the additions was, also, might structures as be needed. It left company to supporting tracks, e., determine as to the method of the they i. whether should longitudinal girders top be on resting carried on the by supported girders by power columns or transverse columns. .The to platforms defined, erect stations and was not it restricted but was left to company necessary, the to decide where were it was occupy stairways authorized to so much of the sidewalks for and ' n approaches may necessary,” sup- as be to also construct such * * * ports, buildings, platforms, stations, stairways turn-outs ” ** * Held, proper. appliances as be requisite such other shall act, comply the substantially that commissioners to with the failed as compliance organization there was no valid such was essential petitioner. of the upon reargument papers A showing motion for was made proceedings particulars in the in instituted to amend which the court had held the that, Held, conceding proceedings articles be defective. were effectual, they ground reargument, the juris- would not afford a a of this court is confined to review determinations diction Supreme upon be actually must had same made papers were before General Term. which affirming Term, order this court the order of It seemsthat the General application petitioner will be no denying obstacle to rehear- Term, application, upon ing or to a new based new General facts. powers it take the sought Where is of an individual under granted by particular statute be in a formed manner corporation, directed, protection rights private therein the constitutional property requires pursued, powers strictly granted be and all prescribed performed. conditions formed, It seems duly corporation where the upon is conferred will not corporation be has done or simply defeated because omitted some of its act a cause of forfeiture may franchises, whether such for- as it State determine rests with feiture will be enforced. In (70 327); re id. & R. Go. (70 361); T. R. R. R Go. Y. In re H. R. TST. (72 In 245)distinguished. re <6 B. Go. id. H. R. W. 1886.) 21, 1886;
(Argued December October decided N". H. Y. Cable Co. Mayob, v. Statement case. Appeal of the General from order Term Supreme made December 1, the first judicial department, Court on the a motion petitioner, part denying to confirm Hew York Railway Company, report to determine Court Supreme commissioners appointed of said whether the described petition to be constructed 'and ought operated. was favor
The of the commissioners report The their refusal to confirm petitioner. report construct had no ground petitioner legal right a railway. operate material, so far as are facts, stated opinion. Wheeler, Chas. P. Evarts, Sewell,
Wm. M.
Robert
Everett
this case
The decision is
Shaw for
having
P.
appellant.
to this court.
been
solely
grounds
appealable
put
legal
v.
&
Y. R.
S. B.
1;
llen
Tolman
(A
Myer,
*4
The
v.
20 id.
356;
83.)
R.
92 id.
Conn.
Co.
Russell
should
motion
confirm the
comm'issioners
report
(Morris
100;
v.
96
Y.
Marvin v.
be
N.
Talcott,
granted.
526;
52 id.
541;
id.
Fredericks v.
Marvin, 78
Taylor,
v.
Fire
Co.,
id.
Fulton
Ins.
103;
58
Sturgis
Spofford,
the act
1884
Baldwin,
16 of
v.
37 id.
Section
652.)
as to take
vested
cannot be so construed
252)
away
(Chap.
so. Wester
(
if it
to do
would be void
attempted
rights,
Constitution, art. 1,
v.
12
209;
N. Y.
State
velt
Gregg,
can
v. Palmer,
id.
The
Stuart
74
6;
183.)
Legislature
§
aof
contract.
a law
not pass
impairing
obligation
21
10;
Con. art.
In
Bank
(U.
Buffalo,
S.
re
§
327;
Pr.,
re
How.
Bank,
In
17
14,15
;
Reciprocity
679;
v. Sec.
95
S.
Tennessee,
Dodge
U.
Farrington
v.
Bank
Ohio
v.
16
State
Woolsey,
367;
How. [U. S.]
18
State
id.
between
Knoop,
A contract
331.)
the legis
act of
citizen cannot be
or changed
modified
v.
90
36;
Otis,
People
State,
lature.
v.
89 N. Y.
(Donald
retro
48.)
retrospective
id.
have
are never to
Statutes
in the act,
it is
unless
so clearly expressed
active operation
5
Ñ. Y.
Ñ. Y.
Mayor,
Cable Co. v.
etc.,
1887.]
of case.
Statement
if
not then
it would take
vested
away
(as
distinguished
from
v.
(Goillotel
441;
Mayor, etc., 87
remedies).
12
2
Hun, 282;
v.
Johnson
Lord,
Burrell,
v.
People
238
v.
1 id.
Hill,
;
Palmer,
Butler
Dash v. Van
325-334;
Kleeck,
McMannis v.
477;
;
7 John.
49
176
Butler,
Barb.
585;
id.
Waddell
12
v.
v.
Elmendorf,
Burley
Pampacher,
5
Ganson v.
1
Duer, 188;
City
Keyes, 460-461;
Buffalo,
n.
Potter's Dwarris on
9 1
Statutes,
; Kent's
455
Com.,
;
v.
3
Jarvis,
Jarvis
Edw. Ch. 462 ; Van Rensselaer v. Liv
12 Wend.
ingston,
420-491.)
right
its
is a vested
re
complete
(In
proceedings
right.
Thirty-
St. R. Co., 5 East. R.
Westervelt v.
697;
12
Gregg,
fourth
N. Y. 202 ; Hurd
9
;
v.
866
Cass, Barb.
Holmes v. Holmes,
4 id. 295;
v.
3 id.
Snyder
621; Benson v.
Snyder,
10
id.
2
Mayor,
223-234;
Kent's Com., 275.)
When the
to alter, amend or withdraw
franchises is
the charter
provided
itself,
done,
may
is a
part
contract, but not otherwise.
(McLaren v.
1
Pennington,
The act of
under
Paige, 102.)
the Cable
contains
Company
no such
incorporated,
pro
vision.
v.
(McLaren
1
Pennington,
102; Benson v.
Paige,
etc.,
6 hT. Y. Y. N. etc., Co. v.
Statement of case.
In re
R. R.
Brooklyn, etc.,
75 N. Y.
Co.,
if
Even
335.)
railroad crosses
streets
prohibited
part
prohibited
is
Y.
Laws of
Co.,
valid.
El.
70 N.
361, 373;
R.
(Gilbert
if
485
Even
there was a defect
1881,
2.)
chap.
§
ad
it
be taken
only
could
organization
corporation,
for that
direct
vantage
State,
by
proceeding
could
which the State
purpose by
attorney-general,
or
waive, either
expressly
omitting
proceed,
re N. Y. El. R. R.
(In
subsequent legislative recognition.
v.
William
and others,
Eailroad
respondents.
Elevated,
Company
time
are to be deemed
directory
Statutory provisions
v.
(Wood
to be done.
thing
the essence
unless of
Y. 200;
re
Bk.
;
City
509 In
Emp.
3 Kern.
Chapin,
41 Barb. 98,
v.
;
Badger,
69 Bowers
Cook, Seld.
People
*6
7
N. Y.
Y.
N.
of
etc.,
Mayob,
Co. v.
188V.]
of
Statement
case.
of
Hun,
The
re
R.
proviso
N.
El. R.
99;
Co.,
241.)
In
Y.
7
4
of the
section of
act
makes
consent
property
authorities,
com
of the
owners and local
or
determination
missioners confirmed
court in lieu of consent
of the
a condition
the exercise
owners,
precedent
U. S.
Bk.
routes. Voorkes
(
previously
power
locating
Re
10
In
150;
10
v.
Wheat.
449;
Southard,
Pet.
Weyman
;
re
24Webb,
M. E.
Statement
case.
R.
69
Co.,
1;
R.
N. Y. 49
v. Trustees
People
Edward,
id. 28.)
70
The
has
thus
Ft.
legislature
construction of
R.
road.
S.
petitioner’s
prohibit
(1
;
art. 8,
800
Laws of
Const.,
1;
1875,
606,
If
34.)
chap.
§
§
authorizes the
act of 1875
construction of
those claimed
.character of
it is unconstitu
petitioner,
of its
because
failure to
tional,
adequate
provide
compensation
taken
construc
private property required
operation
327,
tion and
N. Y.
(70
petitioner’s railways.
;
354,360; Wilson v. N.
R.
N. Y.
Y. C. R.
Co., 47
161
H.
Arnold v.
R.
R. R.
R.
55 id.
El.
661;
R.
v.
Co.,
Story
”
, 90
Co
id.
The
court commission erred
146.)
receiving
and unverified statements, in favor of the proposed railways.
.oral
& B. R. R.
(T.
Co. v. North.
16 Barb.
Co.,
103.)
Turnp.
for the
The
D. J. Dean
etc.,
Eapid
respondent.
606
Transit Act
does not
of the Laws
(Chap.
1875)
provide
(In
for or
creation
a steam surface
re
permit
railway.
N.
R. R.
Y. El.
Y. R.
re
El.
Co.,
352,
70 N.
In
Gil.
R.
id.
The construction and
Co.,
366.)
operation
road is
252 of
section 16 of
prohibited by
petitioner’s
chapter
Hun,
1884.
the Laws of
re
Co. El. R. R. 20
(In Kings
225;
347;
W.
110
Schottler,
Works v.
U. S.
Tomlin
Val.
Spring
Branck, 15 Wall.
Beer
son v.
460
Co. v.
97 U.
;
Mass.
S. 25;
R.
94 id.
Co.,
Beik v.
R.
Chicago
Fort Plain
176;
Smith, 30
v.
N. Y.
Co.
set
Bridge
62.)
proceedings
in the record are insufficient under
forth
Eapid
606 of the
1875)
act
Laws
to entitle
(Chap.
petitioner
(In
confirmation
re
report presented.
Brooklyn,
;
Co.,
R. R.
Co.,
Statement case. *8 12 win, Abb. All the facts, to 26.) showing S.] inability [N. as to of lands must agree be stated in price the affidavits fully court, presented to must inability appear, agree has otherwise the court no jurisdiction appoint appraisers. v. 1 493 (Dykman Mayor, etc., ; Seld. In re B. H. & R. R. Co., 71; Marsh, Y. In re 79 N. id. 71 319.)
Aaron J.
for
It was the
of
Yanderpod
respondents.
duty
commissioners
locate the stations,
build
landing places,
(In re
etc.
Co. El. R.
ings, platforms, stairways,
Kings
Co.,
Hun,
20
It was also their
to fix and determine
234.)
duty
within which the consents
time
should be obtained.
O'Connor, 45
v.
N. Y.
Ct.
(Donahue
Supr.
278,
The
299.)
1875,
was
606,
Act of
not intended
chapter
provide
re
R.
(In
surface roads.
N. Y. El.
Co., 70
Y.
3
343;
N.
414; Laws
;
600,
of 1884,
Abb
252 1 R.
chap.
S.
C.]
[N.
v.
& R.
White
U.
14
8;
R. Co..
559
Hun,
Syr.
;
v.
Suydam
§
8
v.
358;
Barb.
Miller
The
Moore,
15
State,
478;
Wall.
McMahon, 25
Kerr
457;
v.
Barb.
v.
Hyatt
79
Dougherty,
327.)
Y.
has
N.
legislature
to make
authority
grants
to confer
franchises or
consent
powers,
of parties
wise
affected
who
may
thereby.
v.
(Brewster
118;
Sickels —Yol. op FT. FT.Y. LO Co. v. Statement case. 549, ex Cookev. Com. rel. 57 N. Y. Highways, People 225; v. Comrs. 105 Mass. 551; County Worcester, Taylor Hill, B., 2 re & P. R. 14; re Mt. Morris In Square, In 219, Hun, 221; R. 32 105 Co., ; 289 Hall v. Mass. Thayer, 584, & Canal Co. 14 Ad. Ell. Queen v. Aberdare S.] [N. 586; In re Canada Northern R. Fed. 655 Co., ; 7 Rep. Shelton v. Town Conn. Powers v. 414; Bears, 27 Duley, Hazard v. 12 I. 227; Wis. R. 223; Middletown, R. Peninsular v. 20 Mich. Mich. Air Lime Howard, Co. 18; R. 383; Co. 40 id. Fox v. Barnes, Hills, Conn. *9 309 In re 300, 308, Hancock, Hun, 27 78 Hall v. ; ; Thayer, 105 Mass. id. 219; Comrs., Taylor County 225; Stephens v. v. 18 3 L. J. v. Abb. L. J. People, 277; Mullin, People In re N. R. R. 150; B., Y., Hun, 32 etc., Co., 289; People & 89 Y. Flatbush, v. N. In re 61 Brooklyn 75; Grove St., 438; In re 48 Cal. N. H. v. 433; Peck Newport Highway, 1 Zab. Essex, 656; Freeholders Mitchell v. Kirkland, 7 of People 544; 229 v. ; Hun, Conn. 1 Landreth, F ox v. Hills, 1 The 294; Conn. Peninsular v. R. Co. 20 Howard, Mich. ex rel. The 18; Vandeusen v. First People, Judge of 2 398 Columbia, Hill, ; Powers v. 12 Bears, Wis. R 213; . S. R. & 6 Pr. How. Budlong, 467; Const. Cooley’s R. Co. v. 563; Lim. Redfield on The Railways 219.) proper time to make the at the was objections confirmation 1 367; L. There was report. (2 Doug. Comp. 643.) [M.] (16 Mich. 15 Vt. 2 351; 61; no waiver. 367; Doug. [M.] 32 Me. id. 310; 1 B. 6 Clarke Monroe, 213; 593; 47 [Ia.] 1 Conn. 62; 401.) H. Peckham for Madison owners,
Wheeler avenue respond- The ents. commission is alone authorized mayor’s impose must kind, conditions expressed 358-359.) manner out act. N. Y. At (70 pointed time of the of the act of had passage petitioner not obtained the consent local authorities or of the and it is owners, are only routes property designated after obtained, these consents could petitioner become IT. Y. N. Y. 1L Co. etc., v. 1887.]
Statement of case. conferred by section 26 of the act invested powers The N. Y. 348.) thus petitioner 1875. (70 proceed these when the obtain powers legislature repealed ing it was under which Such is effectual. acting. repeal provisions Co., 491; & J. 69 Y. v. B. N. v. Trustees, (Falconer People 18 Section of the act of N. Y. 70 28.) applies only street surface railroad under companies organized special charters constitutional amendments of 1870. prior (21 461; In re El. Road, N. Y. 70 id. 348.) statutes, Repeal in character are absolute and thereafter jurisdictional nothing even has done, already commenced, though any validity. Palmer, 1 v. v. Smith Hill, 330; People, (Butler Whatever has under the law 338.) right petitioner like the of a is much officer to future fees or public — It not not a emoluments. right recognized by (Connors of law. v. or the Mayor subject 296.) Hutchins Waldo Hutchins for Avenue S. Second Aug. others, Railroad Company, respondents. petitioner has no court, been standing having duly organized 45 N. Y. *10 (Donahue O’Connor, corporation. Sup. Cable v. N. Y. 40 Birdsall 301; Co., Hun, 15; Railway Y. In re Clarke, Bk., 73 N. 73. Ind. 75 Emigrant Sav'gs ; id. 388 N. 36 The Hun, Ry., 358.) object the act of was to for the provide 1875 construction of elevated Hun, underground railways. (40 12.)
Crosvenor Abram Wakeman for Lowry Thirty-fourth Railroad and others, Street Company, con respondents. sents statutes must obtained before by first be required location commissioners manner to confer any operates Wilder, inchoate or other. v. 10 any How. rights, (Gaylor 493 Kerr v. N. Y. Austin’s ; 327; 79 Juris. Doherty, S.] [U. 886-887.) for certain respondents. M. Scribner 606,
John Chapter not authorize the does construction 1875, Laws surface n IT.Y. Cable Co. v. etc., of IT.Y. 12 per Rafallo, J. railroads, but clearly elevated contemplates only under (In railroads. re N. Y. El. R. R. ground Co., 70 N. Y. 343, In re Gilbert El. 352; R. Co., R. id. 336; v. Sea Stranahan R. R. Co., View 84 id. Where 308-314.) granted by enactment, with legislative proviso annexed, the enactment is to be read as if no more power was ever than is contained within the given terms or bounds re Second (In Ave. M. E. 66 proviso. Church, N. Y. 395.)
James M.
trustees
Varnum,
Park
Gramercy
others,
The fact that
respondents.
commissioners
both exceeded
appointed
mayor
their
powers
with certain
comply
neglected
mandatory provisions
affected
all
statute
fatally
subsequent
proceedings.
(Laws
;
606, 6
Donohue
1873, chap.
O'
45 N. Y.
Connor,
Supr.
§
N. Y. R. R.
301;
Ct.
C.
Co.v.
& Man. R. R.
Forty-second St.
Church,
re
In Meth.
66
Co.
N.
;
Y. 395
re
;
In
Brooklyn
245;
Co.,
Act,
R. R.
72 id.
7;
In re N. Y.
§
L.
R. R.
35
Co.,
220;
etc.
Hun,
aff’d
Davis, P. J., which was therefore, associates. point, both his only, at that the was, the General Term decided provisions Act of all Surface deprived petitioner General a surface road. to construct authority are still the case and But other are points urged earnestness with counsel for the great this appeal have before us and who those various who argued objectors briefs, and numerous submitted printed objections have discussed are insisted to those upon. addition Daniels, J., the routes com- designated by mayor’s As to few Term denied confirm General motion to mission, the commissioners, Court in the exercise Supreme report cases, the court and its discretionary power and is not cannot, reference those routes action sought here but as to the residue of routes the ; reviewed in the declared, from, has order motion court appealed denied on legal solely wholly grounds legal same, the petitioner being objections existing against liavé to construct operate no considered legal right to.” last referred on the and avenues streets review the This authorizes us to declaration the order of the General involved in the determination law questions inserted with view of seems to have been Term, such an examination. inviting *12 N. Y. Co.
14 Rapallo, Court, per the- We will first on which majority consider point viz. : The at General Term justices sitting agreed, as 252, effect of act of 16), (Chap. abrogating § petitioner. “ The section as follows: Section 16. language No street surface railroad shall be constructed to run in whole inor the surface of street or under the part upon any highway, commission under the authority any appointed provisions -(An 1875, 606 of the Laws of entitled act further to chapter for the construction and aof steam operation provide in or counties of State,’ or acts addition railways thereto or thereof.” amendatory amendments to Constitution, Novem- adopted 3., contained that the ber, 1874, provision (art. 18) legis- § lature should not or local bill pass private granting or association down individual, lay corporation, But it railroad tracks. was further provided legis- laws lature should for the cases enum- pass general providing in section no law should erated authorize the 18/ railroad, street construction the' consent of except upon authorities, owners local or in case the property obtained, not be consent of could determ- owners property three commissioners ination of appointed by Supreme should be confirmed determination court. took effect,
From the time tms amendment January until Surface of the General Act Railway passage forcq under which there had been no law street Transit constructed, could be Act, except Rapid Law of 1850 the .General Railroad inapplicable being no law other been cities, street railways general having the Constitution. The required by passed the use of animal draw the cars, Act excluded sub- power section 26 division authority giving companies organ- under that act to ized then- convey persons steam, railroad or force motor by any other than animal No horse railroad, power.” consequently, *13 H. Y. Cable Co. v. etc., of Y. Y. 1887.] Court, per Batallo, J. under that act. To could organized provide a more com- surface of street the railways, system, act plete of 1884 was the It dispensed machinery passed. com- mayor’s and allowed to be formed mission, the companies by voluntary association of the number of authorized requisite persons, them to select their own routes, the num- provided requisite ber of owners or a Court commission property Supreme the local authorities consented and did thereto, not exclude the use of either animal or steam but authorized the power, use of animal or horse other than loco- power, any power motive steam which be consented to the might by local authorities and a owners,” etc. majority thus made for a of street surface
Having provision system roads, more even than could be claimed to be comprehensive Act, for Transit provided by Rapid legislature determined to make that exclusive, naturally system surface roads. have no more commissions for But it mayor’s matter of commission which notoriety, public had at since been work December, organized petitioner It 1883. had held numerous of Hew city meetings had its York, and notices of from published proceedings time act. It had time to as determined required had located road, routes, had, necessity the construction of the notice, for after adopted plans public association, articles caused roads, subscription prepared for notice, after to be opened, subscriptions books public stock, and the amount- stock, whole of capital capital the fixed subscribed, had been $2,000,000, percentage ing elected, had been thereof directors cash; board of paid of organization certificate and the company organized, to be done act All were filed. these acts required com-, were They before could become corporation. Act of Surface the General before the pleted, passage and the 21st of April, on May 6, viz., far plans in so became, day plaintiff street an roads, existing surface commissioners provided it had in its organization surface railroad provided company, oe Y. R. R. Matojlí, Co. Rapallo, Opinion of the essential requirements conformed hereafter. will be considered aAct, question Surface Railroad General passed When the legislature under "which 16 made law only section Act, *14 thereafter be I think could street surface railroads organized, of all save street rights intended to existing they even had been surface railroad they companies, though organ- Act; ized under the Transit with this that, view, and Rapid 18 of Act was inserted. section the General Surface Railway * *"* That section in the act shall provides nothing interfere with heretofore invalidate repeal any r-iglit under laws of this State horse railroad acquired by any or effect or of street company, any existing repeal right any to extend, railroad and construct, operate surface its maintain road i/n accordance with terms and provisions its charter and the thereof.” acts amendatory of
It is evident from of this that it section, was language to save intended of street surface railroad existing other than horse railroad companies because, after companies, in terms it for horse railroad adds providing companies, after and in the same for immediately sentence the provision street railroad com- protection any existing surface n without it horse railroad As pany, restricting companies. law there was no Act Transit except Rapid authorizing the formation street surface railroad companies than other horse second by any power, operated must clause have been intended to branch saving under the embrace existing companies organized Act. Transit
An dis- examination legislature proceedings Act was General Suface Railway closes proposed and as commissioners, the railroad originally the legislature by it recommendation, and their did introduced on prepared 16 or contain either section section 18, hut provisions were It both of amendment. is not hy way inserted in so far as relates to infer that section unreasonable intended horse railroads, surface roads other than M.Y. 1ST.Y. Dable Do. v. 1887.] Batallo, Court, per and restricting sweeping express purpose qualifying of section 16. provision in
Construed of this and connec- clause, light saving tion mind the therewith, principles bearing general think I retroactive, the construction of statutes as relating the sixteenth section should be deemed only to have prohibited the construction of roads thereafter by companies organized under the Act, thereafter Eapid by authority commissions of that act, given by appointed pursuance was not intended to theretofore prohibit company, organ- ized and then from existing, corporate exercising it had which with the con- authority acquired, proceed struction its road accordance with articles its of associa- tion which had been framed the commissioners *15 its on constituted charter, with the conditions as complying to consents, the by Constitution and the imposed by Eapid Transit Act. The clause which declares 16 that section shall saving not “
affect of any right” construct its any existing company road, sought is all be confined to cases where the conditions to be the it can enter required performed before by company the streets and the had been tracks, upon actually lay per- and it formed, contended until such the performance has no construct its section company right road; 18 a saves consummated and which does only not perfected right, so as exist conditions the exercise long any upon imposed the conferred the remain of charter, unperformed.
I think this is too restricted a construction. company, was as well a time known, long had been for in engaged its routes determined and the having plans adopted mayor’s framed, and articles commission its of its association stock and its in all subscribed in, of which capital part paid pro- involved a necessarily ceedings large and it expenditure, had succeeded its and maturing organization becoming an its existing conypcmyprovided conformed to proceedings act. If it the so had the and an acquired corporate power road, inchoate to construct its all and that remained to right LIX. Sickels—Yol. Y. 1ST. AT.Y. Co. Rapallo, Court, per
Opinion of the done was to the enter acquire perfected right upon its and which tracks, lay was, street substance, its right the consents of the local obtaining a way, authorities and of owners or in lieu thereof the majority approval Court commission. I a think clause Supreme saving intended to was as the protect had, right though company and it inchoate was an right, subject performance The statute further conditions. does not say perfected it but was intention any right,” although right for Surface Act to establish uniform system the General of street surface railroads, prohibit future organization roads under of such authority the future establishment intended to arrest Act, yet Eapid that act, of a under already company organized operations it had it of the rights powers corporate deprive in reliance at upon expense, provisions great acquired act. on effect of section 16 Although which a is the only point upon majority petitioner its below, opinions, agreed ground denying court its was made on motion, order generally yet legal grounds conclusion objections, general and legal had no to construct or operate legal objection streets avenues legal Any question. *16 is its road to construct therefore, to company and is respondents to sustain the order, open sufficient this appeal. taken therefore, must, objection We consider of street construction Act did Transit not authorize Eapid roads. or underground railroads, but elevated only of surface commissioners authorizes Act Eapid and determine fix in mayor, the first place appointed'by that commissioners declares such and routes, the route or “ routes or the route to locate exclusive have shall across or under, through over, or railways, railway etc.” in such county, lands or menúes, streets, places “ under, across,” or over, through form expression, This Cable Co. Mayor, 1887.] Bafallo, is the act and throughout is often preserved repeated, it is on the claimed part that the word appellant the streets refers to roads, surface and is in “through” used contradistinction to over and under. On the other hand of the act many requirements are provisions referred to which are to elevated or only applicable rail- underground those 5, such as of section in ways, regard “supports,” “stations,” “elevators.” Those of “stairways,” section in 17, “to and those of section regard depots,” 26, subdivision 5, “ “ foundations,” columns,” etc., and from respecting this that elevated or only underground were con- argued or intended to be authorized the act. But a templated similar line of can used, argument force, equal in the contention that the act intended to support provide as well as for surface roads for underground elevated subdivision roads. Section authorizes the crossing with other railroads before intersection but constructed, the same section, contains these subdivision “ : exceptions in this shall act authorize the construc- Except nothing the track of tion of a steam railway crossing any now railway at actual operation grade erection of thereof, for elevated any piers supports railway upon railway use street track now or avenue.” actually Section any 29 authorizes conductors case refuses passenger pay him out the car at his usual fare, put any stopping place Section 35 dwelling-house. or near any provides where “ cross or intersect, shall coincide with the route horse any the- said track surface streets,” occupying may, its constructing work, purpose remove temporarily of the horse tracks but railway, contained in nothing this shall authorize act any corpora- tion, formed horse thereunder, use tracks rail- .”way 4 certain streets By section are and places exempted *17 from therein, railroad constructed and in an having any act was Laws passed 1881) amending (Chap. Act, that when route Rapid providing any designated ” is by commissioners located over or on street mayor’s any [Jan,, Cable Co. v. R. Y. Rafallo, Court, per shall have substi- commissioners thus power exempted not street over, under, a or across any tute location through direction as the in the same general exempted exempted, street
It is that some of the act are provisions obvious or to elevated roads, exclusively underground applicable roads, and to surface that such others exclusively necessarily it is case where intended for both classes provide roads in act. single of thd time, we from history may presume,
Although had view secur- most prominently legislature transit means of elevated underground rapid ing transit the main roads, sought rapid any yet object and in their act made obtained, they it could be framing way to include surface roads. broad it sufficiently full commissioners to mayor’s The act gives the roads shall be constructed, decide which plans no restriction excludes from their which and contains adop- of a surface road. tion the plan towas obtain than horse some better motor The object therefore, act authorized steam or motor and, “any power, power. (§ than animal subd. é.) legislature other authorities, to the local trust owners well property might and those commissioners mayor and the appointed by not to consent to use Supreme appointed on the surface of the did streets, locomotives steam as is done in the Surface Rail- General them, in terms prohibit that of steam which allows Act, power except way steam other mode of locomotive, every including propulsion the local to by be consented other power, may I think that before the and the owners. authorities Railroad Act General Surface corporation passage Transit Act for under could be organized legally a street surface railway. construction operation That such was the view entertained by appears legislature Act Surface their 16 of the General from section enacting under roads the future of surface construction prohibiting *18 Y.Y. Co. Mayor, of ÍSS'T.J Court, per Rafallo, of the the of Transit authority Rapid Act, the case of except existing companies. 40 is relied
Section upon of this contradictory interpre- (the that this It act tation. provides Transit Rapid Act) construed or affect shall not be the railroad repeal general of its of shall any law nor rail- provisions apply any under road or law of any organized general special a this State for steam railroad purpose constructing of the nor to or man- surface ground, operation such railroad heretofore I constructed. do any agement think this section is in that inconsistent with any respect of the Transit Act or contradictory argument Rapid itself construction of steam railroad on the authorized section, as I understand it, surface. meaning of the act shall sur- none of provisions apply any at the time face railroad company already organized Transit under or Act, Rapid any general special passage surface railroad nor to constructed act, operation any Transit Act. This before Rapid concluding passage of the section rather confirms the view the act was sentence to surface understood roads con- legislature apply under its terms that none structed provisions, by declaring shall to the of its apply operation management provisions its surface road constructed before passage. us another class of which This questions present brings difficulties. relate They serious organization as a Unless validly pur- corporation. organized petitioner no Act, suance acquired not demand that and, could road, construct consequently, its commissioners Court confirm the report Supreme the property as a substitute for the consent of majority avail no owners, and the order of would confirmation if granted. directly is conferred
As franchise no authority, power, prescribes only act but on the legislature petitioner, be acquired, can such rights proceedings requirements material substantial compliance *19 ÍT.Y. Y. N. 22 Mayor, etc., Cable Co. «. Rapallo,
Opinion Court, per of the J. of which a condition without act is precedent, performance or never became acquired legally incorporated petitioner under the act. rights is that the details, scheme of the act, The general omitting for the steam or railway railways necessity sought public in the determ- shall be be constructed established county, by in cities commissioners to be ination of appointed, by verified thereof, reputable petition fifty mayors and and to as householders taxpayers county, organize a board. such the determination commissioners by
Upon are to fix and determine the road necessary, they required routes, and are declared have the exclusive route or route or routes such or rail- to locate railway streets, across under, or over, avenues, through, ways, lands or such certain county, excepting designated places, and avenues and also and build- public parks streets public (§ 4). ings also meet must and decide
The commissioners upon for the construction of the or or plan plans railway railways, turn-outs, switches, with the necessary supports, sidings, stations, connections, places, buildings, platforms, landing and devices, or other elevators, telegraph signal stairways, the route and or routes appliances upon requisite determined them location (§ 5). must also fix and the time within determine
They same, shall or or railways, railway portions and for with the constructed ready operation, together rates for maximum conveyance transportation stock, amount etc. capital (§ 6). must then articles of association for the
They prepare must set forth to be formed. These articles thereof, conditions, the several embody, component parts determined commissioners requirements particulars and must further to sections provide pursuant the release and forfeiture to supervisors county, mid such corporation all acquired franchises N. Y. Cable Co. v. 1887.] Raparlo,
case such within shall not be completed the time and therein conditions provided. They must also stock books for open capital subscription after due notice (§ public 7).
When and the the whole has subscribed stock been capital has been the commissioners percentage prescribed by paid and elect cash, subscribers are meet for organization *20 and thereafter the commissioners are to deliver to directors, in a of the the directors of certificate, duplicate, organization the of association. the forth articles Three setting company, in affidavit, are then to make that the directors duplicate, of has in of stock been subscribed faith, the full amount good cash, in that it and is paid and the percentage prescribed faith maintain and construct, in to operate intended good in the articles of association or mentioned. railway in the office are to be filed of the and articles The certificates the clerk and office of of state a duplicate, secretary shall be located, or railways wherever railway county stockholders, who shall and become the persons thereupon a shall be corporation. there- is, all these essential
The observance of requirements fore, a of this description condition precedent to exercise or acquiring becoming corporation, such conferred corporations upon powers Transit Act. failed, claim has many The that the petitioner respondents The principal respects, requirements. comply at General J., discussed in the objection opinion Daniels, “ deter- and fix is that commission did not Term, mayor’s or or railways which such railway mine time within same, ready be constructed shall portions ” act. 6 of as section required operation in the following commissioners subject disposed each of twenty- manner: They required separately it should be located, had they routes which nine different number within be specified ready operated constructed “ con- the obtaining the date of from or months years ÍST.Y. Mayob, etc., Co. Rapallo, sent owners of one-half value of the bounded property on, the consent also of the local authorities control having or of, that those of streets or portions highways which-it construct such proposed operate railway railways, in case or, the consent of such owners cannot obtained, from the date of the confirmation the court of the determination of three commissioners the General appointed by Term of Court in the first Supreme district, judicial such to be constructed railways ought and operated, date provided confirmation be the same or sub- to the date said consent of sequent such local authorities.” After specifying regard routes twenty-nine respect- ively, from periods months five varying eighteen years from date of the consents, added the following general viz.: First. provisions, Resolved that each said periods and limitations of time hereinbefore referred to, prescribed as the time within which the several sections or portions *21 or shall railway be railways constructed and be to be ready is, however, operated to this subject and reservation proviso as unavoidably follows: The if time, consumed any, by pen- of or dency legal the interference proceedings of by public or authorities, omission to or or by delay open grade, open- or street or avenue or or ing any grading any thereof, part parts shall not be of deemed a of within which part period tipie of the construction and is completion railway railways if But the which such time, to made. any, be required during shall be each continue added to of the shall unavoidable delay for construction and limited comple- periods otherwise hereby “ that Resolved and, secondly, tion ;” of that the consents is the intent of the of commissioners board authorities specified owners and of the local amended section 4 of 606 of the by Laws chapter the determ- and, necessary, if Laws chapter Term ination the General of commissioners to be by appointed determina- and the of such Court, confirmation Supreme all tion shall be due court, obtained with by diligence.” It is contended, force, considerable respondents, by Co. N". N. Y. oe 1887.] Rafallo, commissioners time fixed by only that as begins of the consents, etc., the date run at obtaining limited consents, for obtaining no time that due to time is respect diligence restriction only there is them, no shall used for purpose obtaining be time within which the roads are to be actual limitation constructed, have done and the commissioners little more than to that be with due completed require diligence. It that a is claimed that the act definite time contemplated should fixed the commissioners so that it might readily be ascertained when the terminated, petitioner and their and franchises be devolved powers might some other who would supply the.public necessity transit. rapid
I with some come to the have, hesitation, conclusion that the commissioners in this substantially complied, respect, with the Transit Act. That it is reasonable consider that the intent of the act was that formed under companies the act limited should be to time only respect during it was them and that possible work, time prosecute when barriers existed to their so should legal not be doing, counted. The act itself if (§ provides 38), time, consumed any, unavoidably pendency legal proceed- shall not be ings, deemed a of time limited part any period act,” this acts subsequent recognize principle mailable time only should be considered. The General Surface Act Railway (Laws of limits chap. 252), *22 time for the commencement of the construction of the roads authorized, one thereby and the time their com- year, for to three pletion years after have the consent acquired the local authorities and that of the the or owners, determination of the General Term. And it further author- izes the Supreme Court to extend their time the during pendency proceedings. legal
It thus when itself appears legislature, undertaking the the which Transit Act it had duty, by perform commissioners, devolved upon time determining LIX. 4r Siokels—Vol. , oe fiT. [Jan Go. v. Raparlo, Court, per street which railroads constructed,
within should be adopted same as that course the commissioners in this adopted by and it seem would to be in case, accordance with the spirit If the the act. was to secure the object speedy construction of these roads door for some other by opening company in the road case the first in and construct one to come organ- failed do so with would object ized not promptitude, a forfeiture franchises of be advanced by causing would causes which first for formed, operate company it. There was which follow ample company might remedy obviate, due could which which diligence any delay The would be to a subject unavoidable. with forfeiture of its franchises for not complying to the more charter, summary conditions of its also such charter. These repeal punishment legislative the limit of time as determ- induce me to considerations regard commission, ined a sufficient mayor’s compliance by the act.
A further taken that articles of association is objection framed not conform to commission do mayor’s in of section act, 7 of very explicit requirement It association shall set its terms. that the articles of requires of the commissioners, forth and determinations embody “ sections 5 and and further shall pursuant provide release forfeiture to the for the supervisors county, and franchises of all acquired corporation, rights or case such shall not within railway railways be completed the time and This conditions therein provided.” is thus made an articles of essential provision part association. contained provision respect forfeiture, actually
the articles of association of the instead provid- petitioner, act, for the release and forfeiture ing, required by of all the a/nd supervisors county franchises in case the corporation, railways acquired railway shall not time, 10) completed only (art. provides in case the several of such portions *23 N. Y. oe Co. v. lSS?.] Rapallo, Court, per Opinion, of the the time and shall each within not be completed, for it and fran- conditions hereinbefore provided, and as to any chises said corporation, portion acquired for shall be released not so completed, of New York.” and county forfeited supervisors from the material requirements This is a departure very had laid out commissioners twenty- the act. The mayor’s some routes, nine whole longitudinal, different extending and thereof, sides on easterly westerly city length from east to some transverse, west, crossing some long elevated some surface some short, roads, and some routes settled and some thickly through some through running city, inhabited portions aggregate sparsely miles. being upwards seventy the roads length Transit Act Whether contemplated should be concentrated transit business city entire rapid I cannot undertake of a company, in the hands say. single at that it was theoretically, least, The act was such capable such an though sanction organization, practical giving its faithfully in the require- difficulties way complying such an extended were scheme, scale, in devising megts clear. It was not however, One very thing, very great. of a organization which sanction intended to all franchise of the conceivable building could acquire be or which for roads now might required years required, it an York, in the New indefinite come, holding city all off thus smaller time over city, keeping companies localities, and required particular might retaining transit itself business. The monopoly rapid that no franchise should be intention was to build a acquired unless it was the actual roads, or set of intention of the road, to build them them actually within complete promoters was to be limited and no road authorized time, which was not thus constructed, intended to be secure this end the act Before contained could provisions. corporation stringent under the act was to file an organized required be finally that the full its three of directors affidavit of amount stock *24 JST. 1ST.Y. Cable Co. v. etc., or Court, per Bapallo, Opinion of the J. and the subscribed prescribed
had been in percentage paid it intended in faith to was good and construct, cash or in the articles railways and maintain operate This to' all refers 9). mentioned (§ association railways and not to in articles merely mentioned them. portion the times within which the sixth several section required of all mentioned the articles the roads should be portions section for the and the seventh forfeiture and release completed, and all the franchises in casethe rail- supervisors all shall not be way them) (meaning completed within the time. appointed framed
Under the article as com- commissioners, the at to select was left which of the pany liberty twenty-nine routes it would it which would without not, complete reference to interests of the and without the action public to revision or As control. company being subject many it of the routes had five after years, con- obtaining necessary determine whether it sents, to would construct them, during all this would hold the shadow of their exclusive period they franchise over and if affected, neighborhoods they finally concluded to abandon they those routes were to suffer no to forfeit to the supervisors of the except penalty county franchise of the routes which elected to constructing they abandon. This either accox-dance with the letter act. The commissioners were spirit mayoi’’s sworn officei-s, presumed disinterested, public placed office the pux'pose public interests, protecting it well be presumed routes may would fixing they which it some would locate not be immediate interest construct, but for which would be they franchise compensated coupled being highly route, the insure profitable which would construct x-ight the constx’uctionof to, if others. device xosorted By were sanctioned, would be left at determine liberty to all these for themselves without matters anything guide interest. them their own bxxt this was before
In 1882 vei*ysubject legislature, N. Y. Co. Matos, 1887.] Rapallo, *25 amended section of7 Transit Act
they by adding : a following Provided, however, failure that cor- by any poration heretofore or hereafter under this act, organized its complete within the time limited in and its railway by articles of shall association, work a forfeiture of the franchises of such only with corporation, to that of its respect portion route which such shall have corporation failed to complete, and shall not affect the and franchises of such corpora- tion to construct such of its which it operate part shall within have the term its articles completed prescribed by association, of or as to which the time for shall completion have in contained the articles of association expired, anything to the of thereof in not- corporation contrary anywise of But (Laws withstanding.” chap. by 2.) § 5 the same act it was section of that none expressly provided of its should to the counties of ISTew apply York provisions thus and Westchester, will as emphasizing legislative in the that in declared those counties a act, original rapid transit should be itself to con- required obligate all roads mentioned in struct its articles of association a transfer all under its franchises penalty county. supervisors therefore, in commissioners,
The article 10 of the framing association, override the attempted articles action of to make the amendment of 1882 refusing legislature of New York, applicable city incor- (Chap. 2) § the substance amendment in the articles of porating were authorized petitioner, association law to prepare. it is that answered this provision
To objection section association required superflu- articles because law would execute itself unnecessary, ous said in were the articles on the subject nothing though in the this answer is The that difficulty way forfeiture. a forfeiture to the of law there is no declaring provision release to them. The only legisla- requiring supervisors tive enactment on is the subject requirement section v. H. Co. Rapallo, that the articles of shall association contain seven a stipulation to that effect, and or provision requirement is positive and cannot be disregarded. unequivocal laws applicable general corporations would doubt- less authorized attorney-general proceed by quo warranta for a forfeiture of the charter of the petitioner case it should or omit unreasonably to exercise its delay franchises. But that would be a different kind of forfeiture from that It mentioned section would 7. destruc- tion of the franchises and not transfer of them to the *26 and the act made on supervisors, having specific provision no other can be substituted. subject, It is further said that this is not requirement applicable and of Hew York because board of city county super- visors of that was abolished of county prior passage Transit in the Act, viz., (Laws year 1870. of 1870, This, I is a chap. think, misapprehension. 190.) section 11 of the act referred to, board of By super- visors, theretofore elected composed supervisors or was declared abolished mayor, appointed people and after the first But from 1870. from Monday July, all the that time and duties conferred or powers by general the board of of the laws or upon supervisors special city all York, of Hew and supervisor thereof, upon any county of the abolished board of were obligations supervisors devolved and be thereafter to, declared upon, fully belong to be the board of exercised, by required super- possessed, that act or thereof, visors constituted by by any supervisor 1 of the act the and the recorder section mayor and by aldermen York, of Hew with the to be the city together under act to the local elected government reorganize (Laws were 137), of Hew York, of 1870, city chap. declared, 1870, to com- on and after the of July, first Monday York, Hew board of supervisors county pose said county. each of said officers to be a supervisor be shall that there 3, 22) (Art. The Constitution requires § elected to be a board of counties supervisors in the several oe N. N. Y. Co. 1887.] Rapallo, of the manner as such be may prescribed by law, cities except are whose boundaries the same as those of the but county, that in such the duties and any of a board city powers be devolved council supervisors may common upon board of aldermen thereof, certain duties are imposed the board of of New supervisors city county which York, be maintained in that require body (Art. county 3).§
It be claimed, cannot that in the therefore, city county there are of New no York, whom the supervisors franchises can be forfeited and released. It is further with contended, much force, on the part for the construction of the plans roads are respondents, and in defective fall far short many fatally respects sub- stantial compliance requirements ¡Rapid Act. made this the briefs submitted subject points counsel for the are
the various so respondents numerous that within reasonable to dis- impracticable, limits, would I shall them. therefore select a all of few of those cuss I prominent. regard *27 essential to the formation of a it is under
That corporation, Act, commissioners the appointed by decide for the should some construction the upon plan mayor located them, cannot be doubted. the feature of the act is that the The distinguishing company left at is are railroad liberty, companies be organized Railroad and as Act, the General were those under formed created acts, were decide which for special formerly themselves the but that construction, upon plan subject was under the exclusive control of the placed commissioners, in addition to power the exclusive to locate the route or routes. The vested in the thus commissioners power to decide upon the was plan construction, rendered the pecu- necessary by liar character of the roads were which doubtless authorized, intended to be located in principally and cities, populous might affect valuable seriously The private extent of rights. injury N. Y. Cable Co. [Jan. Bapallo, Court, per
Opinion of the in a to these would necessarily depend, great private the manner in which roads, especially degree, upon n should constructed roads, elevated operated. facilities for for increased transportation large necessity in the of blew was cities, York, city spring especially schemes, all when it was which in motion these sought set sanction, to have them forwarded problem by legislative the least benefit to with was to secure public, greatest It not safe was private injury rights. organize private to construct these roads with unrestricted corporations power to their own which and regard solely any plan economy interest and, therefore, suggest, expedient might resorted to of the the local authorities of appointment commissioners, board of who should sworn security give duties, the faithful of their and have power performance between and the stand projectors enterprise and decide owners and plans they public, should deem most reference to all these diverse just interests. it
This leads us to into to which extent, inquiry act, of an essential to under this validity organization the commissioners should exercise deciding upon construction. plans at the think To I it foundation, incontestable that begin whether must decide each road shall be contemplated an road, an elevated if am road, or, I underground construction surface road. act, To leave either my of these undetermined, to the discre- questions relegate tion of the directors to be formed, would, abe from the act my departure and a failure judgment, *28 one of the with conditions to the comply precedent acquisi- tion of power. corporate
How securing far further it is the essential, for purpose decide shonld that commissioners valid the organization, It to determine. it is difficult construction, upon plans least, the to inconvenient, require say would be to' very the with be should prescribed the the construction details of íí. Y. Cable Co. v. Mayor, etc., of Y. 188^.] Rapallo, oí the minuteness usual in a specifications contract. building There ais somewhere, line undoubtedly the essen- dividing tial from the non-essential. But we are not to the put necessity for it in searching case. It is suffi- present cient for its to that, hold as far purposes as reasonably practicable, plans adopted by commissioners should disclose to what extent the streets are to be encroached upon, and the thereon property abutting affected, and the means of to be so that transportation used, the local authorities and owners when property consents, for their applied the commissioners appointed Court Supreme to consent in their behalf, authority have the may necessary an materials to form intelligent whether the judgment scheme should or should not proposed be assented to. To extent, least, this at I think the act requires commis- sioners appointed by should decide mayor plans, and that their decision should not be made subject any modification the railroad That those who con- company. sent to the construction of the road, whether they may the local authorities, owners, or the Supreme (cid:127) Court commissioners, of road know to what kind may they are to what will be streets obstructed consenting, degree of what mode of construction thereby, efficiency proposed be used for the and that their consents cannot capable, construction of different road. the commands this extent
Justice seems require of the statute be obeyed. have been stated. laid out the commissioners routes ones, are, according
Of several, principal these indeed But roads. surface to be them, adopted by plans those designated several and indeed others, portion resolutions is, by roads, in the first instance as surface articles in the are embodied commissioners, election subsequent left association of company, roads. elevated shall be surface whether be con- scarcely A can violation of the statute more flagrant ceived. &emdash;V BIX, on.
Sickels *29 N. Y. Cable Co. v. Bapallo, embody, as the articles of association, which of7, Article mayor’s the determinations statute, by directed to be that railways, 1), commissioners, provides (subd. the surface shall be laid upon constructed by No. from1, on route avenues, excepting of the streets or from No. bridge; to the Brooklyn Jones street Great Tenth avenue, street West street Thirty-third the route; terminus of the northerly from Second street to from No. 29, and route No. on route on route No. of which all street; street to Seventy-second Christopher These structures. elevated constructed on routes be may schemes of the general important part routes comprise very cover and in space roads, aggregate projected plans miles yet of seventeen length, upwards whether they determine do not the commissioners adopted that leave question but roads, or surface shall elevated be the decision company. that the elevated of article
The third subdivision 7 provides shall small be double track, one (with exception), tracks as from to add such other authority may but given time needed to accommodate traffic, time be increasing needed for make additions to the structures be may that purpose. the same article 6 of
Subdivision the tracks provides shall elevated, when be carried either railways, longi- on the of columns or trans- resting tudinal girders tops columns, without supported by verse girders determining which, prescribing height columns, except shall superstructure feet above than fourteen less of the streets level (subd. 15). Subdivision declares that the of construction plan elevated railways tracks, than two having more authority is the case with all at shall be one, routes except the election either the railway, company constructing with a of columns on and a row the line of each curb super- structure tracks transverse one more upon carrying girders the line or with row columns street, spanning *30 N. Y. Co. oe 1887.] etc., v. Mayor, Rapallo,
Opinion, J. and of each curb track over each row of columns; single to add to the structure when an authority addi- being granted tional track or tracks needed, be transverse may between girders said of columns to rows such additional support track or tracks, or with row of columns on the line of one curb and a row in the of the street with roadway on some streets authority to erect third row in the of the street for roadway additional tracks needed. when to erect stations and is not platforms restricted defined. The left, subdivision 14 company of article to decide where are and to they erect them necessary, over streets
the cross and also to so much occupy of the sidewalks the streets for and of as stairways approaches bemay neces- thus it to the sary,” leaving determine company how much it will the streets and subdivision occupy, 41 gives authority “ such to construct turn-outs, switches, supports, con- sidings, nections, landing places, stations, buildings, stair- platforms, elevators, and ways, telegragh, telephone signal devices, as shall other such be requisite appliances for the proper pur- such and as shall be for the con- pose necessary venient use of the same.” enumerated this
The details are subdivision the same 5 of the act, enumerated in are subdivision commissioners are therein after which the required, giving to decide notice submission plans, public inviting upon construction, instead yet, adopting any plan to be determined leave these matters plan, they to construct these under a appliances company general authority the convenient use of the for may necessary proper railways. elaborated in made and are
Numerous other objections are made with reference to criticisms points. Many as it is no road, claimed, surface showing, portions even the construction these definite plan adopted left that was substance but railways, portions what should deem the to select most form. It is not now into all these necessary go approved Y, IT. Cable Co. IT. Y. Rafallo, Court, per
Opinion, of which have been as I think the details, particulars specially of the case sufficient to without referred to are dispose pass- made on the other many points part ing show commissioners, instead of respondents, *31 construction, definite plans obligatory adopting upon at have left it to determine for itself liberty company, many the local authorities and property questions interested, and the are determination of which was owners or them, to enable commission any essential appointed by form an Court to whether intelligent judgment Supreme should be to the construction of not consent the rail- given and have left it to the com- they virtually ways, especially determine how much of the streets it to will occupy, pany this from time to time as and to extend its interests occupation it In this seems me to respect may require. pro- the road, commissioners, and the have failed to jectors Act, and the spirit protec- appreciate it intended to afford to the and the tion public property has that an shown elevated road is owners. Experience as constructed on such a to to interfere, plan being capable with the use of the extent, streets for slight comparatively of owners and with ordinary purposes, also but be constructed such thereon; they may abutting the value of as to manner virtually destroy property. to withhold from act was scheme companies, these to determine plans, formed under it, of sworn commis- board in an vest power impartial have these commissioners shown, as has been sioners, yet, of deciding ques- itself relegated company and even to determine, it tions which was their duty as their to time, time from their plans change enlarge is observation A single interests render may desirable. so-called plan By illustrate this sufficient to point. In authorized, commissioners adopted elevated and an a surface instances, several to elect between tracks elevated, and, lay elect where railway, transverse lay its election curb, or at at each columns y. R. Y. oe R. 'etc., 1887.] Co. Rapallo, from entire On curb, curb street.
girders spanning these to be girders purports empowered additional lay tracks from time to time, limit, without as its business may It at therefore, its the entire require. election, cover may, streets, or it construct additional tracks roadway may on columns center in the It erect roadway. may stations over the sidewalks and cross streets and may occupy as much of as it deem the sidewalks for stair- necessary may without restriction. The number ways, approaches, and location of is not limited or all stations these defined, structures in the over and on the sides roadway may carried to an unlimited so to efface the height, practically streets, on the limit sides buildings only being *32 the shall not be less than feet fourteen in superstructure the In at to all determine height. leaving liberty these and the from matters, time to time accord- change plans the commissioners have uddertaken to enable it to ingly, exercise far more and than unrestricted powers expansive which the those Transit Act intended to confer. Rapid As the have views I do not in all meet expressed respects all the concurrence of I have associates, stated my separately reached, the I in order conclusion which have that bemay ascertained what are decided. These are conclusions : points
First. That 16 of the General Act, section Surface con- strued with 18 of the same did act, connection section not the if in the other abrogate petitioner, obtain the respects legally requisite organized, proceed consents, and when obtained construct railways to their articles of association. conformity Act did, That the Transit before Second. Rapid passage authorize the General Surface Act, organization the surface, street to be to construct railways companies other than animal. operated by any power that That Third. objection organization that the commissioners is on the defective ground plaintiff is failed to fix railways, the time for completion well taken. not If. Y. If. Y. Co. Bapallo,
Fovjrth. That the the articles taken that well objection of association, fail to commissioners, comply prepared with do section 7 of in that Act, for the release and forfeiture to provide supervisors of all the franchises county, acquired its failure its within case of company, complete times. prescribed That the commissioners have failed to substantially Fifth. 5 of the act, of section requirement comply for the the railways decide construction of plan com- section, other specified appliances essential their valid organization. pliance Term General should he That the order of the Sixth. affirmed. J., JJ., con- Finch, Oh. Danforth Miller,
Ruger, cur. fourth and fifth third, concurs on J., grounds
Andrews, the first and and does not vote on in the stated opinion, second grounds. J., fourth and fifth on the third, concurs
Earl, grounds and second and dissents from the first in the stated opinion, grounds. *33 for a the a motion reargument following
Upon subsequent handed down : was opinion this matter J. The moves for petitioner
Rapadlo, the one for herein, of appeal alleging ground reargument the of this court on such motion, that since decision such the Term of the has obtained from General Supreme it appeal the to show cause commis- an order why report Court (cid:127) them be remanded to for should not by sioners appointed cause is now order show which pending, further hearing, of this with the court, in order comply opinion that and the amendment of for taken has proceedings the petitioner an amended therein inserting association by of its articles fran- and of its to the forfeiture relation article N. Y. Cable Co. v. oe 1887.] Rapallo, of the supervisors the and that cllises county, further the has resolution of opinion by comply petitioner of its board directors of the board requested president framed commissioners, who by appointed mayor, com- said articles of to call said association, a meeting the defects missioners for correcting purpose That in said omissions out opinion. supplying pointed had of said of commissioners reconvened board president as to for further them, have determined plans they and have amended the construction of the railway, petitioner’s them in the mentioned particulars opinion, things as conform to do such other may petitioner willing this to the court. judgment claims functions of the
The mayor’s petitioner have but were continued were commission not expired, at this said amendment, the time of commission still existing in June, at its reserved the having meeting that-the fixed at the call of its times reconvene president; for the of the several Transit Act performance commission were mayor’s acts to -be performed merely that under circumstances but directory; mandatory at the time of the amend- this case could they performed amendment of the articles of association ment, 135 of the Laws of authorized by chapter amend formed under laws to general corporations empowered case their certificates of incorporation informality therein. are validity
Many suggested grave objections but cannot be considered amend; these proceedings if the to amend were this motion. Even proceedings afford would not effectual, they ground reargument is confined to this court jurisdiction appeal. determinations made Supreme review of actually *34 same papers and this must review be had Court, upon rehear before the General cannot which were Term. We the matter different state upon of facts from upon those acted, Term for that would be General an exercise which N. Y. Cable Co. v. oe N. Y. Rapallo. on the new state jurisdiction of facts original presented, not of the actual determination of the court review below. If a new state of facts, rise to new giving questions, which existed to the legal objections obviating application is now made by originally petitioner, presented (a question before which is now us, upon which, properly therefore, we do not order made this court express any opinion) the General Term the order of affirming denying applica will be no obstacle to a tion of the petitioner, rehearing at Term matter the General on new state of alleged facts, should that see fit to such a tribunal or to a grant rehearing, new based new facts. v. Pursell, application upon (Riggs N. Y. And new on such or if the 370.) hearing, application, of 1884 has not from legislation precluded petitioner pro under the Transit Act to obtain ceeding Rapid authority the action of a commission since 1884, to through mayor’s road, construct surface will be open Court Supreme exercise its over the whole matter discretionary instance, as it did the first of law. only pass, questions cannot make We, however, modification of our any decision, matter, order in the based upon any alleged change amendment facts, or alleged proceedings mayor’s commission articles of association.
Some other are grounds, however, of this urged support for a which will be application reargument, noticed: briefly It is First. alleged articles of association of the were prepared petitioner model of the articles of association Manhattan Elevated Railway Company, said to have been under organized Transit Act. On this it is sufficient point say the articles of association of the Manhattan Elevated Railway Company have never been court, before this we nor have judicial of their knowledge existence, or their provisions, unless came incidentally in the question Matter of Gilbert Elevated Railroad Company (70 361). They are not mentioned, even either in arguments counsel or *35 Mayoe, etc., of 1ST.Y. 41 Cable Co. 188V.] Rapallo, Court, per the of in that case. None questions the court- in the of opinion in that discussed in decision of this case were the involved of the court called to of them the attention case, nor was any articles has not of been if existed. those sufficiency has this in case which been before any considered litigated court. It from the in this case,
Second. is claimed opinion in the the have its decision Matter court overlooked appears Railroad (70 N. the New York Elevated Company 327). of the court. Several That was fresh case memory in its who decision, including judge judges participated concurred delivered the decision who opinion, having case, find that and we are unable to any present point conflicts with the case, discussed in that decision decided or far as In so one in any validity present articular. is concerned, it is petitioner present organization conflict, because the that there should impossible was Elevated Company York Railway organized New Transit Act. of the Laws of under the (Chap. Rapid 1875.) Elevated The New York was Railway Company originally under the General Railroad Law of and the incorporated 1866. It was an Act of recognized existing Supplementary 595 of the Laws of 1875, entitled An chapter corporation, by New act and York Elevated to authorize require Railroad and its railroad in the to continue complete city Company construction, and New York and operation regulate That act recited thereof.” management incorporation the General Elevated under Law Railway Company had under foreclosure by purchase, acquired _1850; and West and franchises of Side mortgage, powers Yonkers Patent last the act was, Railway Company, to, referred confirmed possession enjoyment said com- franchises; and of certain powers it; missioners extended to previously were appointed it had com Transit Act prior Rapid passage structed steam an elevated actually operating aon of its route. After portion passage
Sickels —Yol. LIX. *36 Y. Co. 1ST.Y.
42 Mayor, etc., v. oe per Bafallo, J. of the Transit itAct under 36 section of that proceeded act to make route, certain connections and additions to its and no question could in arise the case except with respect those connec tions. But even as to those, was discussed in nothing opinion, decided, which touches the case. The present claimed in the on the only point motion to papers present have had that is that effect, while the mayor’s commissioners had to the elevated given to elect railway company authority between several plans for the specified construction of a cer tain portion connections, Court commission Supreme had aas condition that the imposed confined to company one of the specified unless owners should plans, property consent, and the was, made not as to the point action of mayor’s commissioners in as election, but giving to that of commission, it Court which was said Supreme its exceeded which powers condition restricted imposing to one and all that company this court only plans, said upon was that that would come subject complaint more from the than from the properly railway company owners. Rb as to question incorporation Elevated court, was before Railway Company being fully as an The same remarks recognized existing corporation to the case of the Gilbert apply Elevated Railway Company (70 That 361). was as an elevated organized road 1875, before Transit Act of under acts Rapid passed 1874, and was an at existing corporation the time of the Transit Act. passage Rapid pro was had under which came before this court section ceeding 36 authorized Act, Transit which existing Rapid charter, or failed its had forfeited which not corporation or routes coincided with its route whose provisions, comply appointed with those commissioners determined upon its and operate under the construct toAct, Rapid thereon fulfillment requirements Transit Act. The considered mainly question viola contested constitutionality section which was tive section 18 of article of the Constitution. JST. ÍT.Y. oe Cable Co.
1887.] Batallo, Court, per Opinion of overlooked, but we found were nothing cases These at we were the conclusions conflict them in in the case. arrive present constrained that this court the authori- claimed overlooked It is Third. to the effect that defect ties on the points, cited appellants’ thereto, in the annexed affidavits articles of association or its faculty not fatal the existence corporation *37 to can but that the State alone interpose acquire franchises, and take defects. of such advantage its
This court it comment did. not deem to necessary opinion that we the reason those authorities for upon simple to did not order deem them to the case at In bar. applicable a sustain to which a claims be corpora proceedings by body eminent tion, and as such the of exercise empowered right citizen, a domain, under that take the of right property It must it is not sufficient that it de be corporation facto. the taice be a Where it is de corporation sought jure. an of act of an individual under granted by property powers in a to be formed particular to a legislature corporation of directed, manner therein the constitutional protection of that private requires powers granted rights property all be pursued, prescribed legislature strictly conferred Where the be conditions performed. defeated it will be formed, a corporation, duly act or omitted some has done corporation because simply of its and fran a cause forfeiture rights of may determine whether such it chises, for rests with the State are neces will Judicial proceedings forfeiture be enforced. be waived. and it That may enforce such a forfeiture sary in the matter of was the to which the point opinion N. 245), cited Railroad Brooklyn, (72 Company that this distinc It assumed was directed. was appellant tion was of well portion and a considerable understood, devoted to was case opinion this court present that and defects in the the omissions showing organization were failures the conditions comply to the existence of the as a petitioner corporation, precedent Y. etc., of Co. v. Mayor, Batallo, of the and the exercise instead domain, of eminent mere causes of forfeiture of being acquired. further that this motion, contends on this petitioner court has not out so to the pointed plans objection much of the as are surface roads, railways petititioners therefore claims that the be allowed, surface should even if the others were disallowed.
But the learned counsel overlooks the fact that even if act, the surface roads were with the plans compliance reversal, would not authorize General Term decision, or authorize confirmation report Even Court commissioners. Supreme assuming of those commissioners not an and that it report entirety, should be held to a consent as owners equivalent to a and ineffectual routes, others, part want forfeiture clause, objection prescribed routes, to all the even a con- applies precludes partial *38 firmation.
Our decision was reached after careful examination in view deliberation, But, interests involved. large our inclination to sustain notwithstanding strong rights claimed to have been if could acquired by petitioner, be done without reasonably protection disregarding the law had thrown around the public private we found affected, some of the objections presented insisted insurmountable. respondents upon by this Our attention has not been called, motion, any which we had overlooked nor consideration subject which should induce us our conclusions. change The motion for a or to amend remittitur, reargument, therefore be should denied.
All concur. denied.
Motion