14 Daly 154 | New York Court of Common Pleas | 1887
The relator is a domestic corporation organized under, chapter 265 of the Laws of 1848, as amended, for the purpose of owning, constructing, using, maintaining, and leasing lines of telegraph wires or other electric conductors
In the month of April, 1883, the relator obtained from the common council of the city of New York permission to lay its wires or other conductors of electricity in and through the streets, avenues, and high ways, of said city, and to make connections with such wires or conductors underground by means of the necessary vaults, test boxes, and distributing conduits. This permission was granted pursuant to chapter 397 of the Laws of 1879, as amended by the Laws of 1881, chapter 483, which provides that a company or companies organized or incorporated under the laws of this state for the purpose of owning, constructing, using, and maintaining a line or lines of electric telegraph within this state, or partly within or partly beyond the limits of this state, are authorized from time to time to construct and lay lines of electrical conductors underground in any city, village, or town within the limits of this state, subject to all the provisions of law in" reference to such companies, not inconsistent with this act, provided that such company shall, before laying any such line in any city, village, or town of this state, first obtain from the common council of cities, the trustees of villages, or the commissioners of highways of towns, permission to use the streets within such city, village, or town, for the purposes therein set forth. The said relator accepted such privileges upon the conditions and terms imposed by the common council in granting the same.
In June, 1884 (L. 1884 c. 534), an act in relation to telegraph and electric light companies in the cities of this state was passed, which directed that all telegraph, telephonic, and electric light wires and cables used in any incorporated city of this state having a population of five hundred thousand or over, should thereafter be placed under the surface of the streets, lanes, and avenues of said city, and requiring the same to be removed from the surface of the streets or
In June, 1885, an act, providing for placing electrical conductors underground in cities of this state, and for commissioners of electric subways, was passed by the legislature, which required that within twenty days after the passage of this act, in any city of the state, having a population exceeding five hundred thousand and less than one million, the mayor of such city is authorized and directed to appoint, and in cities having a population exceeding one million, the mayor, comptroller, and commissioner of public works are authorized and directed to appoint, three disinterested persons to be a board of commissioners of electrical subways. Said board is charged with the responsibility of enforcing the provisions of the act of June 14, 1884, above mentioned, as amended; and said act was thereby amended and made to conform in all respects to the provisions of this act. It was made the duty of said board to cause to be removed from the surface, and put, maintained, and operated underground, wherever practical, all electrical wires or cables used or to be used in the business of any such company, in any street or avenue in any such city, so as to enable and require all duly authorized companies operating or intending to operate electrical conductors in the streets or avenues of any such city as is or shall be affected by the provisions of said act, to transact their business with underground conductors wherever practicable.
Section 3 of said act provides that when any company, operating or intending to operate electrical conductors in any such cities, shall desire or be required to place its conductors or any of them underground in any of the streets, avenues, or highways. of such city, it shall be obligatory upon such company to file with the said board of coinmis
Section 4 provides that it shall be the duty of the said board to carefully investigate any and all methods proposed by any such company for electric lighting or electrical communication by the use of conductors along or across any street, avenue, or any other highway in said city; and, before approving of any such method, the board of commissioners shall require that, so far as practicable, all such conductors when constructed shall be underground. The section further provides that in case no suitable plan is proposed or in use within sixty days after the passage of the act, it shall be the duty of such board to cause to be devised and made ready for use such a general plan as will meet the requirements of said act, and of this act, and that the board shall have full authority to compel all companies operating electric wires to use such subway so prepared in accordance with the provisions of this act.
The relator has made application to the commissioner of public works for leave to make excavations in the streets of this city, so as - to construct its lines of subterranean electrical wires. The commissioner of public works has refused such permission, on the ground that the plan of the relator has not been approved by the board of subway commissioners in accordance with section 3 of the act of June, 1885. The relator claims the right to such permit under the franchise granted to it by the common council in 1883, and contends:
1. That chapter 499 of the Laws of 1885 does not apply
2. That chapter 499 of the Laws of 1885, if applicable to the relator, would be unconstitutional, as impairing the obligation of contracts.
3. That said chapter is unconstitutional, because it is a local bill embracing more than one subject.
4. That it is unconstitutional, because it enacts that an existing law shall be applicable, and is not inserted in it.
5. That said act is unconstitutional, because it compels the telegraph companies to pay the expenses of the subway commission and the expense of constructing the subways the said commission may build.
It is my opinion that chapter 499 of the Laws of 1885 applies to the relator. That chapter must be read in connection with chapter 534 of the Laws of 1884, for the reason that the act of 1885 requires the board of subway commissioners therein created to enforce the provisions of the act of 1884, and declares that that act is so amended as to conform in all respects to the provisions of the act of 1885. The act of 1884 required that all telegraph, telephonic, and electric light wires and cables used in any incorporated city of this state having a population of five' hundred thousand or over should thereafter be placed under the surface of the streets, lanes, and avenues of said city. This portion of the act of 1884 has not been repealed, and plainly declares the intention of the legislature that all electrical wires and cables shall be placed underground. It therefore seems to me that the legislature intended that the subway commissioners should have jurisdiction over the laying of all electric wires and cables, and of all companies using or intending to use underground wires through the streets, and authorized them to require conformity to plans approved by them.
The relator next claims that the act of 1885 is violative of the constitution, as impairing the obligation of contracts
That a statute impairs the value of property does not make it unconstitutional. All property is held subject to the power of the state to regulate and control its use in the interest of the public welfare.
In Thorpe v. R. & B. R. Co. (77 Vt. 140), Judge Red-field says: “ By this general police power of the state, persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state, of the perfect right of the legislature to do which no question ever was, or, upon acknowledged authority, can be made.”
Chief Justice Waite, in delivering the opinion of the court in Mann v. Illinois, says: “ When one devotes his property to a use in which the public have an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created.” The reports abound in decisions which show that the state has authority to regulate the use and enjoyment of property and the control of private business in many ways without coming in conflict with any of those constitutional principles which are established for the protection of private rights and private property. It is my opinion, therefore, that the regulations in regard to subways for electric wires and cables in the large cities referred to in the act of 1885, was a lawful exercise of the police power of the legislature.
It is to be noticed that it does not appear that the relator ever filed with the board of commissioners of subways any
The act of 1885 is not, in my opinion, obnoxious to any of the constitutional objections which have been raised by the relator. It is not violative of section 16 of article 3 of the constitution of this state, which provides that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in its title. This is not a local bill within the law as laid down by the decisions in this state, and by which I must be controlled. It is contended that it is a.local bill- because its operation is confined to cities having a certain population by the last census, there being but two such cities, New York and Brooklyn. This question has received judicial interpretation in this state (Matter of N. Y. Elevated R. Co., 70 N. Y. 327 ; Matter of Church, 92 N. Y. 1).
In the Matter of Church, the act of the legislature which came under review was one giving certain powers to the board of supervisors in any county containing an incorporated city of over one hundred thousand inhabitants, where contiguous territory in a county has been mapped out in streets and avenues. Tins act was held not to be a local law in the meaning of the state constitution, and so not violative of the constitutional provision' above referred to. The court says: “ The class consists of every county in the state having within its boundaries a city of one hundred thousand inhabitants and territory beyond the city limits
In the Matter of the New York Elevated Railroad Company., the court construed the provision of the Rapid Transit Act authorizing the elevated railroads to make certain connections with other roads. It was claimed that there was but one elevated railway in operation at the time of the passage of the act, and hence it must be deemed that the legislature had sole reference to that, and that the act was a local act. It was held by the court that it was not a local or private bill, and so not violative of the constitutional provision referred to. Every intendment is in favor of the constitutionality of an act of the legislature. It is not to be presumed or inferred that the legislature intended to violate or evade the constitutional restraints, and the courts cannot take proof of facts aliunde for the purpose of showing a statute, valid and regular upon its face, to be un constitutional.
I have not overlooked the decisions in the states of Ohio and Illinois, to which attention has been called in the argument of the learned counsel for the relator; those decisions are in conflict with the cases in this state; but my decision must be governed by the law as settled in our own courts. Further, I do not think that, under a proper rule of con
The object of the provision of the constitution above referred to was to prevent the uniting of various objects having no necessary or natural connection with each other in one bill, and to prevent members of the legislature and the public from being misled by the title. I think this act, is addressed to a single subject, and that is expressed in its title. The mode in which the subject is treated, or the manner in which the purpose of the statute is to be carried out, could not and need not be stated in the title according to the letter and spirit of the constitution.
The relator’s fourth objection is that the act of 1885 is violative of section 17 of article 3 of the constitution, which declares that no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law or any part thereof shall be applicable, except by inserting the same in such act.
I do not think this objection available to the relator.
By referring to section 2 of the act of 1885, it will be seen that it is therein provided that the act of 1884, “is amended and made to conform in all respects to the provisions of this act.” This is clearly not within the inhibition of the section referred to. The act is amended so as to conform to the act of 1885. No express provision was necessary for that purpose, and the effect would have been the same if that part of the section had been wholly omitted. By the effect of the repealing clause in the act of 1885, the act of 1884 is repealed so far as its provisions are inconsistent with the act of 1885, but is not repealed as to such of its provisions as are not inconsistent with it. This section of the constitution does not require that an act
The last objection of the relator is that the act imposes upon the telegraph companies operating in this city the expenses of the subway commission, and also the expenses of the construction of their subway.
This objection presents no difficulty. The rule gathered from numerous cases may be stated to be that, “ if when any invalid provision of an act is stricken out, that which remains is-complete in itself and is capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, the act must be sustained.” Applying this principle to this act, it seems clear that if this provision is defective, it would not invalidate the rest of the act. This clause may be discarded without at all changing the scope and purpose of the act or defeating its obvious intention and aim. The general purpose remains, and is complete, effective, and operative, after this provision is rejected. There is nothing in that provision so connected in subject-matter, meaning, or purpose, with the main scope of the act as to indicate that the legislature would not have passed the latter without the former (see People v. Briggs, 50 N. Y. 553; Matter of Middletown, 82 N. Y. 196).
The conclusion arrived at is that the commissioner of public works was correct in his refusal to allow a permit to the relator to open the streets for the purpose of laying its wires, on the ground that its plans had not been. approved by the board of subway commissioners, as required by sec-, tion 3 of the act of June 13, 1885.
It therefore follows that the application for a mandamus must be denied.
Jesse Larrabee and E. H. Benn, for appellants.
E. Henry Lacombe, counsel to the corporation, for respondent.
The learned judge who made the order appealed from, after a careful examination of the law, denied the motion for a mandamus; and has fully and very clearly given his reasons therefor.
We have examined the questions raised by the appeal, and fully agree with him, both in the conclusions to which he has arrived, and the grounds on which such conclusions are based.
. A similar application was made to Mr. Justice Fbeedmaft, in the case of the N. Y. Electric Lines Co. v. Crimmins, and by him denied (Mss. Opinion N. Y. Super. Ct. Sp. Term, Nov. 4, 1886).
For the reasons stated in these opinions, we think the order appealed from should be affirmed.
Order affirmed.
The order entered on this decision was affirmed by the Court of Appeals, January 17th, 1888 (see 109 N. Y. 593).