Lead Opinion

Collin, J.

The city of New York cannot establish its right to compel the defendants to relocate their tracks upon Eighth avenue by invoking the provisions of the resolution of the common council of July, 1851, and, the contract between the city and Pettigrew and his associates. (P otter v. Collis, 156 N. Y. 16.) Moreover, the stipulation of the contract urged by the appellant as obligating the defendants to change the location of the track, as directed by the city, provided, if valid, for the cessation and not a change in the use of the street by the promisors. The question remaining for our determination is: Has the appellant been vested with the governmental or police power to compel the defendants to change the track from its present to another place upon the street or avenue upon the ground of public safety and convenience ?

The assertion and argument of the appellant that the power in question was bestowed by the ancient charters of the city and has devolved to it need not detain us. Neither their language or intent nor the contemporaneous conditions support the assertion. The Consolidation Act *313 (Laws of 1882, ch. 410) empowered the common council to make ordinances, not inconsistent with law and the Constitution of the state, to regulate the use of the streets by foot passengers, animals, vehicles, cars and locomotives. (§ 86, subd. 2.) Inasmuch as the resolution adopted by the board of aldermen directing the relocation of the track was not an ordinance (Greater New York Charter, §§ 38, 39), we need not determine whether or not such provision was repealed by the Greater New York charter or extended to the consolidated city. (See Charter, § 1610.) We turn, therefore, to the other legislative enactments put forward by the appellant as delegating to and vesting in it the power it is attempting to exercise. Of those enactments, we need to consider only the following, because it is manifest that the power, if existent, is granted by one or both of such provisions. The charter provides: “Subject to the constitution and laws of the state, the board of aldermen shall have power to regulate the use of streets and sidewalks by foot passengers, animals or vehicles; * * * wherever the word ‘ vehicle ’ or the plural thereof occurs in this section it shall be deemed to include wagons, trucks, carts, cabs, carriages, stages, omnibuses, motors, automobiles, locomobiles, locomotives, bicycles, tricycles, sleighs or other conveyances for persons of property.” (§ 50.) By virtue of special and general enactments, power is given the board of aldermen to protect persons and preserve the safety and welfare of the people within the city. (Charter, § 43; General City Law [Cons. Laws, ch. 21], § 20, subd. 13.)

The respondent asserts that our decision in People ex rel. City of Olean v. Western New York & Penn. Traction Co. (214 N. Y. 526) determines that the power claimed by the appellant here does not exist. The appellant earnestly urges that the assertion is erroneous for the two reasons: (a) The power conferred upon the respective cities was not identical, and (b) in the Olean case the power was invoked to improve the street; in the instant *314 case, to protect the public. We have, therefore, considered the facts and questions as presented by the record here.

The respondent Yew York Railways Company is the lessee of the respondent Eighth Avenue Railroad Company. The latter company was incorporated in 1855 under the G-eneral Railroad Law (Laws of 1850, chapter 140) and chapter 140 of the Laws of 1854. The part of Eighth avenue involved in this proceeding, that is, from Fifty-ninth street to One Hundred and Tenth street, was within the route of the railroad to be built and operated by the company as fixed in the incorporating certificate. The certificate did not fix the locations of the railroad tracks upon the streets of the route. The company succeeded an association of individuals and to the railroad upon that part of the route designated in the certificate from Barclay street to Fifty-fourth street, which they had constructed under a void contract between themselves and the city. (Potter v. Collis, 156 Y. Y. 16.) By virtue of section 3 of chapter 140 of the Laws of 1854, the company was authorized to construct, complete and use the railroad in the streets and avenues designated in the respective grants, licenses, resolutions or contracts under which it had been in part constructed, irrespective of the consents required by sections 1 and 2 of the act. In 1874, and after the railroad authorized by the incorporating certificate had been constructed, the legislature passed an act (Laws of 1874, chap. 478) requiring the company to “ extend its existing railroad tracks from their present terminus in the Eighth avenue * * * through and along the said avenue northerly ” to Macomb’s Dam bridge. Section 2 of the act provided: “When the extension required by this act shall be completed and put in operation, said company shall use, maintain and operate its railroad during the term for which said company was incorporated upon and along the several streets and avenues in the city of Ye w York upon and over which its railroad is now in use and operation and upon and over such extension, sub *315 ject only to the provisions of the general railroad act of this state with its amendments, which shall be applicable to the railroad and extension hereby granted, except as herein provided.” In 1913 the appellant, by its board of estimate and apportionment (Charter, § 242), caused the roadway and sidewalks of Eighth avenue, at the point in question, to be changed in plan and construction, and in 1915, through its hoard of aldermen, demanded, upon the ground of public safety and convenience, that the company relocate one of its tracks. This proceeding is to compel compliance with the direction. We decide that the direction is ultra vires of the appellant.

A railroad can be constructed and operated upon a public street or highway only upon the consent of the people acting through the legislature. The title to the streets and highways, whether in the people or a municipality, or in fee or in easement, is held for the public use. The fee of the streets acquired by the city of New York is held by it in trust for the use of all the people of the state and not as corporate or municipal property. The power of the legislature in respect to them is qualified by the Constitution alone. For ordinary and general transportation and traffic, the streets and highways are free and common to all citizens. Thus much is conclusively implied in their acquisition and maintenance, and their regulation for such purpose is, speaking generally, imposed upon the local municipal authorities. The construction and operation of a railroad upon a street is not within that purpose. It is the occupation of a part of the street with privately-owned permanent structures, the operating of cars and the transportation of persons thereon for fares or tolls. It is the use of the street for a distinct and exclusive purpose. It is the exercise of an exclusive interest in or appropriation of the street. The authoriza- ' tion of it is one of the prerogatives of sovereignty and derivable only through the action of the legislature. (Potter v. Collis, 156 N. Y. 16; Wager v. Troy Union *316 Railroad Co., 25 N. Y. 52; Matter of Rapid Transit R. R. Comrs., 197 N. Y. 81; Davis v. Mayor, etc., of N. Y., 14 N. Y. 506; Del., L. & W. R. R. Co. v. City of Buffalo, 158 N. Y. 266.) The legislature may, unless forbidden by the Constitution, delegate to a municipality, or an agent for such purpose, the power to authorize it, but the delegation must be in clear and unmistakable language. It does not exist through avoidable implication. Authority to regulate the use of the streets will not constitute it. (Davis v. Mayor, etc., of N. Y., 14 N. Y. 506, 517; Beekman v. Third Ave. R. R. Co., 153 id. 144; Water, Light & Gas Co. of Hutchinson v. City of Hutchinson, 207 U. S. 385; Lincoln S. D. Co. v. City of New York, 210 N. Y. 34, 39.) In the Davis case the city of New York had power to regulate the streets. It was said: “But this power relates to and is confined to streets, lanes, &c., as such.' Everything which is fairly within the idea of regulating, * ' * * the streets, with a view to their uses and purposes as streets, may be exercised by the corporation, but the converting of a street or a part of a street into a new piece of machinery for transporting persons with which the existence of a street has no natural or necessary connection, is not, in my judgment, at all within the purview of the charter and acts of the legislature to which I have referred. * * * I have examined with respectful attention the several cases in which the power which I have been examining is claimed to have been expressly or impliedly affirmed. They are, without exception, cases in which the right to establish the railroad at the places where it was proposed to be constructed had been granted, mediately or immediately, by the legislature.” In the Lincoln 8afe Deposit Company case, Chief Judge Cullen said: “A power to regulate and control public streets is not a power to alienate the title to any part of the street.” Under established principles and the authorities, the construction and operation of a railroad upon a *317 street is an appropriation or alienation of the part of it so occupied for a purpose extraordinary and distinct from highway purposes and can be authorized by municipal authorities only ‘ through a clear right given by the legislature. The authorization to regulate the use of the streets does not contain or confer the right; it does not empower the authorities of the city of New York to locate upon the streets the route or the tracks of a railroad or to .participate in any way in creating, defining or controlling the franchise granted by the state. In so far as it is concerned, the practical location of railroad tracks upon the streets, and the parts of the streets to be appropriated in their use is a matter between the state and the railroad corporation. By virtue of the implied legislative intention, the tracks of the Eighth Avenue Railroad Company were to be located, in the absence of a specific location by the corporate charter, with a proper regard to the public convenience and safety, but a violation of this implied obligation could be corrected by the state and not by the municipality. The state might under the police power require relocation.

(People ex rel. City of Olean v. Western N. Y. & P. Traction Co., 214 N. Y. 526; New Orleans Gas Light Co. v. Drainage Comm, of New Orleans, 197 U. S. 453.) Equally true is it, and for identical reasons, that the authority to the board of aldermen to regulate the use of the streets does not empower it to appropriate to the occupation and use by the respondents, by a relocation of the track in question, a part of the street other than that upon which their tracks have been lawfully constructed. It does delegate to it police power enabling it to reasonably control in divers ways the care of the railroad structures upon the streets and the operation of the cars upon them. The judicial decisions uphold many instances of such control. The rights of a railroad’ corporation upon the parts of the streets appropriated to its use must be so exercised that the free use of the streets, for the purposes and in *318 the modes inherent in their creation, will not be unreasonably interfered with. It is a part of the regulative power of the local authorities to secure such result.

Another fact requires consideration. The G-eneral Railroad Law provided that nothing contained in it should be construed to authorize “the construction of any railroad not already located in, upon or across any streets in any city, without the assent of the corporation of such city.” (L. 1850, ch. 140, § 28, subd. 5.) Therefore, the right of the Eighth Avenue Railroad Company to exercise the franchise was not perfect until the city had assented to the construction. The power to direct the relocation of the track cannot, however, be found in the statutory necessity for the assent of the city. The assent was not a part of the franchise. -It was but a step in the grant by the state of a single, indivisible franchise. (City of New York v. Bryan, 196 N. Y. 158.) The city might attach to its assent conditions which were not destructive of the franchise or repugnant to constitutional or statutory provisions relating to it. (People ex rel. City of Olean v. Western N. Y. & P. Traction Co., 214 N. Y. 526; People ex rel. West Side St. R. Co. v. Barnard, 110 N. Y. 548.) The record does not disclose to us the form or substance of the assent. When a railroad has been constructed and operated for a long period of time the courts will presume that an assent required by law was given. We must conclusively presume, in the absence of allegation and proof, that the tracks of the company were lawfully placed and have lawfully remained in their present location. The grounds upon which the proceeding rests and the arguments of the appellant assume the existence of such fact. The assent did not reserve to the city the power to withdraw or cancel it or impose as a condition the right to the city to direct a relocation of the tracks. Neither the G-eneral Railroad Law, nor the charter of the city, nor other statute empowers the city to recall the assent or enacts that it shall be continuous. It having *319 been given, the purpose of the statute was fulfilled. The company accepted and acted upon it and henceforth it was binding upon the city. Under the statute making the exercise of the franchise dependent upon it, the city could not relocate the tracks in order that they should be where they desired. (Matter of Kings County Elevated R. R. Co., 105 N. Y. 97; Hudson Tel. Co. v. Jersey City, 49 N. J. L. 303; Shreveport Traction Co. v. City of Shreveport, 122 La. 1.)

The order should be affirmed, with costs.

Dissenting Opinion

Cardozo, J. (dissenting).

I dissent upon the ground that the charter of the city of New York differs essentially from the charter construed in People ex rel. City of Olean v. Western N. Y. & Penn. Traction Co. (214 N. Y. 526); that the grant of power to regulate the use of the streets is a delegation of the police power of the state government (City of Buffalo v. Stevenson, 207 N. Y. 258, 261, 263; Dry Dock, E. B. & B. R. R. Co. v. Mayor, etc., of N. Y., 47 Hun, 221, 224); and that in the exercise of the police power, the city of New York has the right to compel a railroad company to remove its tracks from one part of a street to another, where the change is not made capriciously, but is necessary for the public safety (Macon Consol. St. R. R. Co. v. City of Macon, 112 Ga. 782, 784).

Willard Bartlett, Ch. J., Hiscock, Chase and Hogan, JJ., concur with Collin, J.; Cardozo, J., reads dissenting memorandum, and Seabury, J., concurs.

Order affirmed.