48 N.Y.S. 656 | N.Y. App. Div. | 1897
This is a taxpayer’s action instituted to restrain the defendant Wurster, as mayor of the city of .Brooklyn, from approving, and twenty-eight other defendants, constituting the board of aldermen of the said city, from passing over the mayor’s veto, if he should exercise that power, two certain resolutions already passed by such board, granting to the other defendants, the East River and Atlantic Ocean Railroad Company and the Nassau Electric Railroad Company, the consent of the common council to the construction, use and operation of a railroad in certain streets of the city for a period exceeding twenty-five years.
The complaint alleges that on February 3, 1896, an application was made to the board of aldermen by the East River road praying that the common council would grant consent to said company to the building and operation of a double-track street surface road upon an unusually large number of streets, and for fourteen different routes, many miles in extent, and that another application of the Nassau road -was presented on the same day, of a somewhat more modest character and relating to one route only. Both applications were referred to the standing committee on railroads, which was appointed at the organization of the board in January, 1896, and consisted of .Aldermen Francisco, Ilaubert, Wassmuth, Thompson, Myers, Hennessy and Guilfoyle. This committee had hearings on the subject on February 27, March 13 and 30,'and on April 10, 1896, and at no subsequent time. But at the time of the. customary organizátion of the board in January, 1897, the membership of this committee was changed. Francisco and Haubert ceased to be members, and their places were.filled by Aldermen Taylor and Dunne, so that the personality of the committee was materially altered. For some unexplained reason the matter slumbered in the-committee room during the remainder, of the year 1896, and until November 29, 189-7, when the new committee, without any public notice of its intention, made a report in favor of granting the application. There is nothing in the record to show that any public hearing was held before this new railroad committee, or any deliberation had thereon by the committee, public or otherwise, except such as may be derived from the fact that the new committee recommended the giving of the consent.
It is needless to say that the public and any taxpayer might well be startled by the gigantic proportions of the franchise thus suddenly consented to, and, so far as the record discloses, without immediate previous notice to the public, or any other notice except that,, as the resolutions state, early in the year 1896 a notice was published 'in' two Brooklyn newspapers of the time when a hearing would take place before the committee. It is clear that no public action was taken by the committee from April, 1896, till November, 1897.
• The answer of the mayor alleges his intention to veto the resolution, and it was stated on the argument that lie had done so. The corporation counsel of the city appearing for the mayor; in his brief and in his oral argument, expressed his conviction that the injunction, should be continued pendente lite.
The consent was, on its face, in perpetuity and not for twenty-five years. The only benefit- derived by the city and its citizens was that the consent required the company to sell six tickets for .twenty-five cents and pay the city three per cent of the gross receipts. The complaint alleges that the value of the franchise is
Some of the questions involved in this appeal have already been passed upon by the learned Appellate Division of the first department in the case of Gusthal v. Strong (post, p. 315); and even if we did not agree with its conclusions we should hesitate very long before differing therefrom. But we see no reason for any difference. We agree with its conclusion that it was the intention of the new charter that after its passage “ the granting of any franchises, except such as are mentioned in that section (§ 73), within the territory of the greater city of New York, is forbidden.” Section 73 forbids the granting of any franchise to any person or corporation for a longer period than twenty-five years, with certain provisions for renewal, to which it is unnecessary to refer. The consent before us is unlimited in its term, and consequently for a period in excess Of twenty-five years; and, adopting the conclusion of the court in the Gusthal case, we hold that such a consent is unauthorized and illegal.. A similar result has been reached by Judge Lacombe of the United States Circuit Court, in the case of Seccomb v. Wurster & Others, based ujion similar allegations, in a very learned and elaborate opinion, in which he holds that an injunction should issue' to restrain the grant of a franchise for more than twenty-five years.
If it were necessary further to refer to the new charter we might say that it is hardly to be expected that an instrument of such great extent and importance would be perfect and beyond criticism. The days of miracles and inspiration seem to have passed from the pages of history, and we may look only for reasonable accuracy in the expression of legislative intent in legislative acts. We think the intent of the charter referred to is sufficiently apparent from the scheme of the entire instrument.
Ziegler v. Chapin et al. (126 N. Y. 342) was an appeal to the Court of Aj>peals from an order of the General Term of the second department; affirming an order of the Special Term granting an injunction pendente lite. The court held that the taxpayer’s action,
One of the allegations of the complaint is that the board of aldermen is not invested with and does not possess the right or power to grant to any person the right to occupy the streets for a period exceeding twenty-five years, and that seventeen members of the board have agreed with one another and with the defendant corporations to vote to pass the resolution over the mayor’s Veto, if he should exercise that power. The complaint contains allegations which amount substantially, to a charge that the defendant aider-men, inspired by corrupt motives, intend to exercise a power which they do not possess. It is undoubted that the court might, after such action of the board and on trial of the issues herein, decide that the board had no authority to give' such consent, but that does not forbid the exercise by the court of the power to restrain, pendente Hie, an absolutely illegal act, provided there is evidence to show that irreparable injury will result to the plaintiff by the attempted exercise by the board of a power which it does not possess. It is evident that some of the defendants or their counsel believe that some benefit will result from the reversal of the order granting the preliminary injunction, and it is our duty to ascertain whether some corresponding injury may not result to the plaintiff and the public. It is evident that if the resolution is not passed over the mayor’s veto, there will be lessened litigation, while, 'if it is passed, citizens and taxpayers will be compelled to resort to extraordinary-litigation to undo a wrong, and that the defendant corporations believe that they will have some coign of vantage from which to repel the attacks of their adversaries.
It is further contended that no injunction pendente lite should have been granted, inasmuch as the effect of such order is to prevent the board from passing the resolution over the mayor’s veto before the expiration of their term of office^, and that this would be an inequitable exercise of judicial power by preventing by indirection what ought to be only directly adjudged, and that no harm can result to the public by permitting the board to exercise a power
The answer of the, defendant Wurster sets up certain defenses and contains a demand for affirmative relief to restrain the members of the board of aldezmen from passing the z-esolutions over his "veto, and these allegations, not denied by the other defendants, constitute matter which justifies a preliminary injunction. The answer denies that any resolution was passed granting any franchise to the Massau Railroad -Company, and alleges that no public hearings were had before the standing committee on railroads of 1897, as required by section 92 of the Railroad Law (Chap. 565 of the Laws of 1890, as amended by chap. 676 of the Laws of 1892); that the application' is for permission to lay tracks on prospective streets which are not yet laid out, and over and upon the tracks' of other railroads oh certain streets, and that the routes contained in the resolution differ from those in the articles of association of the East River road. It is not "necessary to express any opinion upon the points raised by this answer; and it is sufficient to say that the answer interposed by the mayor, the official head of the city government, sets up facts which may stamp the resolution as illegal. In the case of Seccomb v. Wurster, already' cited and involving the .same resolution, Judge Lacombe holds that tíre Taxpayez*s’ Act authorizes a suit of this chaz’aetez;.
The Taxpayers’ Act (3 R. S. [9th ed.] 2530, § 1) authorizes the bringing of an action by a taxpayer against the officers of a municipal corporation to prevent any illegal official act on the part of such officers, and under the allegations of the coznplaint, as well as of the answer of the defendant Wurstez-, the question of illegality is ■ sharply and distinctly raised.
We are of the opinion that the action of the board, in passing the resolution for a consent to the construction and operation of a railroad for an unlimited period, was illegal, and as. such we entertain no doubt of the power and duty of the court to enjoin further action in that direction, pendente Ute.
The order appealed from is affirmed, with costs.
Bradley and Hatch, JJ., concurred; Cullen and Bartlett, JJ., concurred in the result.
Order granting injunction affirmed, with ten.dollars costs and disbursements.