32 Barb. 102 | N.Y. Sup. Ct. | 1860
This is an application hy the plaintiffs for an injunction to restrain the defendants from granting any lease or leases of the Fulton, Catharine street, South, Hamilton avenue and Wall street ferries, between the cities of Hew York and Brooklyn, and especially to restrain them from making the same in the manner proposed in the public notice of the sale thereof by the comptroller, under date of Hovember 16, 1859.
The application is founded ,on two general grounds : 1. That by the act of May 14, 1845, the defendants have no authority to make any sale or lease of the ferries in question, but that the same is confided to commissioners appointed by the governor. 2. That if the defendants have the power of sale or lease, they are conducting the same in violation of the amended charter of the city of Hew York, of April 14, 1857, and also in violation of the duties imposed upon them as a municipal corporation, to the publii at large. It will be convenient to consider first, this last branch of the application.
If the plaintiffs have in fact established a clear violation of law, or a clear misuser or abuse of their corporate powers, on the part of the defendants, I regard it as an appropriate ground for an injunction. The threatened act is one of seri • pus consequence to the public. The leases, if made, confer rights of property, and are to last for ten years, and the fact of their having been actually granted, might present embarrassment in the way of their being subsequently set aside. Under these circumstances the preventive remedy is not only lawful, but is the safest and best which can be adopted. (Story’s Com. on Eq. Jur. §§ 907, 8, 9. Code, § 219. Benson v. Mayor &c. of New York, 10 Barb. 226. Davis v. Mayor &c. of New York, 14 N. Y. Rep. 506. Milhau v. Sharp, 17 Barb. 445.)
I think too, the people are the proper parties to enforce the remedy. They represent the general public—the body of citizens who are aggrieved. An individual would not be authorized to institute the action.- Probably the commissioners,
Waiving for the present a discussion of the question, whether the law of 1845 is valid or is in force, let us next consider the question whether the defendants have been guilty of such a violation of their common law or statutory duties or obligations as justifies the interference of this court. The 41st section of the amended charter of 1857, (Laws of 1857, ch. 446,) requires all ferries to be leased, and the leases to be made by public auction and to the highest bidder who will give adequate security, to be limited to, that is not to exceed, ten years in duration, and to be revocable by the common council for mismanagement or neglect to provide adequate accommodations—the lessees to • purchase, at a fair appraised valuation, the boats, buildings and other necessary ferry property of the' former lessees—previous notice of all such sales (and leases) to be given under the direction of the comptroller for thirty days in each of the daily newspapers employed by the corporation.
It is claimed on the part of the plaintiffs, that by the terms
I cannot discover in any of these provisions a violation of the statute in question. The provisions of the law are general —not entering into much detail—imposing certain restrictions and obligations, but not prohibiting other and additional ones. The leading object of the section was to secure publicity of notice—free competition at the sale—and in the limited duration and revocable character of the leases, protection to the public. To require a certain moderate sum to be paid in cash at the time of the sale, was not an unreasonable or unusual requirement, and was advisable, if not necessary, to prevent fraudulent bids. Nor do I think it violated the provision that the sale should be to the highest bidder, who should give adequate security. This provision must receive a reasonable construction. It was not intended, I think, as compulsory on the corporation to take security for the entire amount, but for such amount as in the exercise of a sound discretion they should think reasonable. It might be literally complied with by a condition of sale which should require the whole purchase money to be paid the next week after security was given; but that would be unreasonable. So of the requisition to pay or bid, at the time of the sale, an amount equal to the present annual rental of the ferries, ($56,000,) as a condition of purchase. This does not violate the section which requires a sale to the highest bidder. If the highest bid be for a sum less than that amount, the only consequence is, that there is no sale; and a new advertisement, perhaps on more favorable
The provision requiring the lessees, for a proper compensation, to have attached to the fire engine on each boat a fire apparatus and hose, is certainly not a violation of the section above referred to, for it says nothing about it, and I cannot regard the provisions therein made for the benefit of the lessees and the public, as exclusive or prohibitory of other just and salutary conditions, not inconsistent therewith, imposed by the corporation of Hew York for the benefit of their constituents. I regard this particular condition as not unreasonable, having in view the frequency of fires in the vicinity of the landing places of these boats, and the convenience of operating the fire apparatus by means of the engines upon the boats. It is, I think, a police regulation, competent for the defendants to make. It may be said, also, in reference to all the before mentioned alleged violations of this section, that none of them appear to be in derogation of the rights of the general public, or that particular public more immediately represented by the defendants, and, therefore, scarcely afford ground for interference by injunction at the suit of the people, with the action of the defendants in these particulars.
The other principal objections to the proposed sale or lease of the ferries are, that they are proposed to be leased together in a single lease; that the purchaser is required to purchase the entire ferry property attached to the five ferries; that the rate of ferriage allowed to be charged for foot passengers is extravagant and oppressive, and that the proposed mode of leasing is the result of a fraudulent combination between the defendants and the Union Ferry Company, having for its object to destroy competition, and to confer upon the last named company a substantial monopoly of the ferry privileges.
These are the more important allegations in the case, and
They are claimed to he, in part, violations of the act of 1857, and, in part, violations of the general obligations or' duties resting upon the defendants as a municipal corporation towards the public.
There is no express provision in the notice that the ferries shall be sold together, but it is fairly to be inferred from the terms of the notice, and is necessary to be done in order to comply with the resolutions of the common' council. Such a sale is not a violation of the act of 1857, either, in-letter or spirit. There is nothing which forbids a sale in that form, and it is left to he governed by a sound discretion. How far such discretion may be regulated or controlled by the action of the courts, is a question which I shall hereafter discuss. For the present I shall consider the question of fact.
The affidavits on the part of the plaintiffs tend to show that the ferries could be profitably run at a charge of one cent for foot passengers, and that responsible persons are ready to-take a lease of the ferries upon that condition, paying the present rental,to the city of Hew York; and that a proposal so to run the same was presented to the defendants by the public authorities of Brooklyn; and that the chief manager of the Union Ferry Company has admitted that, they could be so run at one and a half cents ferriage for each foot passenger —and at one cent if some of the night boats were removed from certain of the ferries—that some of said ferries were heretofore run at a charge of one cent for foot passengers, and were remunerative at such a price. It further satisfactorily appears that the said ferries are run at the present time at two cents per foot passenger; that the population of Brooklyn is 250,000 to 280,000; that the number of foot passengers per day averages 70,000, or more, and from 25,000,000 to 33,000,000 per year; that the foot passengers yield about 81 per cent of the whole income of the ferries; that at the charge
The affidavits on the part of the defendants tend to show that the fair annual rent of the property of the defendants now used by the Union Ferry Company in running the ferries in question is $55,000; that the ferries are well conducted, and run at a uniform rate of ferriage; that this uniform rate is highly promotive of the public convenience, if not absolutely essential to the lives and safety of passengers, in preventing the more accessible of them from being over-crowded; that the Fulton ferry would rent for more, if rented alone, than the whole five ferries together, including the Fulton, and that the public safety and accommodation as well as the interests of both the cities of New York and Brooklyn will be best consulted by having them all under one uniform management, and conducted by a single interest.
These affidavits are to some extent, though not to a very great extent, conflicting, except in regard to the opinions of the several deponents. From the best consideration that I
I do not propose to enter into an extended enumeration or examination of the provisions of the Dongan, Cornbury or Montgomerie charters. I have examined them all, and have been presented by counsel, with a sufficiently copious abstract of them. A statement of them is also contained in the opinion of Mr. Justice Barculo, in the case of Benson v. The Mayor &c. of New York, (10 Barb. 223.) The validity of these charters is not denied by the counsel for the plaintiffs ; nor so far as they confer rights of property, if the defendants, as a municipal corporation, may lawfully take grants of property, is it claimed that these rights of property can be invaded. It is very properly conceded that rights of this character are inviolable, and they rest for their security not merely upon the constitutional provision that “ no state shall pass any law impairing the obligation of contracts,” but upon the immutable principles of justice and equity, which require the rights of private property to be respected, even when governments are overthrown. So far, therefore, as these charters confer rights of property, they are inviolable > inaccessible to legisla
I cannot assent to the proposition that a municipal corporation is incapable of taking real estate by grant, so as to have a right of property in the thing granted. I suppose, that under these charters the defendants have property rights in the markets, the city hall, the lots of ground and public lands, the docks and the ferries mentioned therein. They hold them as grantees, as owners, by contract, by a title equally strong and inviolable, I think, as do private individuals or corporations. They hold them, it is true, in trust for their constituents, and are answerable in a proper way to them for a breach of trust. But I know of no way in which their grantors, or the successors of their grantors, can lawfully invade these rights. They may hold them or certain of them, also, only for certain purposes, and in such case, the right of external interference with their administration of them depends upon the question whether those purposes have been violated or disregarded.
But, it is to be observed, that neither as regards municipal corporations nor private persons, is the right of property strictly absolute and intangible. Property is subject to be taken under the right of eminent domain. It is subject to taxation by the public authorities. And when it is in this way required for public purposes, the right of the property holder must yield to the paramount right of the public. Title to property is always" held upon the implied condition, that it must be surrendered to the government, either in whole or in part, when the public necessities, evidenced according to the established forms of law, demand.
In regard to ferries, I am of opinion that there is a still further right, which the public may exercise, to wit: the right of regulating the rates of ferriage, and of so controlling ferry franchises and privileges in the hands of grantees or lessees, that they shall not be abused, to the serious detriment or inconvenience of the public. It seems to me that the
I am therefore of opinion that when these ferries or ferry rights (the distinction between which I shall presently consider) were conveyed to the mayor, recorder, aldermen and
It is in strong confirmation of these views thát both the colonial and the state legislatures, notwithstanding those apparently unqualified grants, have repeatedly enacted laws regulating the rates of ferriage over these very waters, as well as over other tide waters, the right to establish ferries across which has been conferred by acts apparently unqualified in their terms. The statute books both of the colony and of the state are full of instances in which this right has been asserted, and I do not deem it necessary to cite them in detail. It is also worthy of observation that the Cornbury charter, (if not the others,) in granting leave to the corporation of New York to establish ferries for transportation, under such rates as had been usually paid, adds—“ Or which at any time hereafter shall be by them established by, and with the consent and approbation of our governor and council of our said province, for the time being” It seems to me, therefore, that notwithstanding the defendants should, under the sale which they have notified, convey to the purchaser a lease of these ferries, unqualified or silent as to the prices which should be charged, except the maximum rate specified in the notice, these rates would still be subject to legislative supervision and control, and that the lessees would take the same subject to such qualification. It may be said that the legislature, under pretense of regulating the right, might practically destroy it by reducing rates of ferriage to a non-remunerative standard. This is possible. Like all other powers of a similar character—like the taxing power—it is susceptible of abuse. It is not to be presumed that the legislature will do injustice. If
There is also another distinction of great importance to be observed—that is the distinction between a thing in esse and a thing not yet in existence—between a grant of actual property and a right to create property—between a conveyance of an existing ferry and a grant of a power to establish future ferries. The one conveys property, and with it, all the ordi-. nary rights which attach to the ownership and possession of property ; the other is a mere naked power not coupled with an interest, not conferring an interest. When the last of. these charters, the Montgomerie charter, was granted in 1730, there was but a single ferry in existence—the Fulton ferry— and none was afterwards established till 1816, and then the Catharine street ferry. The South ferry followed in 1835— the Hamilton avenue ferry in 1846, and the Wall street ferry in 1853. Now, so far as the Fulton ferry-is concerned, which existed prior to the date of the Dongan charter, in 1686, there was something upon which the charter could instantly operate, and carry with it valuable property rights— and so far as the other ferries are concerned, which were actually established before any legislative interference took place, the power was executed—the ferries were established under lawful authority, and, I think, carried with them equally valuable and inviolable property rights. This covers the case of the Catharine street and South ferries. But as to the Hamilton avenue and Wall street ferries, which were both established after the passage of the act of May 14, 1845, which placed the power of leasing or licensing ferries in the hands of commissioners appointed by the governor, the question is entirely different, and the question arises whether the government could not reclaim the powers; conferred, it is true, by the government of the colony upon the corporation of New York, but unexecuted at the time of the passage of the last named act.
This question brings into view the distinction between pow
This class of powers is vested in the government for the general good'—is supposed to be delegated with no other object, and may be resumed at the pleasure of the sovereign. Accordingly, in reference to this very charter, this very power of legislative resumption or recall, has been repeatedly exercised, and particularly in reference to the rights of the corporation to appoint measurers of grain, and license innkeepers. Various other powers enumerated in the charter have been taken away or practically treated as under legislative control by the charter of 1857, and the judicial decisions are numerous which recognize the distinction here noticed, not only gém. erally, but as applicable to the charter in question. (People v. Morris, 13 Wend. 325. Bailey v. Mayor &c. of New York, 3 Hill, 539. East Hartford v. Hartford Bridge Company, 10 How. U. S. Rep. 534. Brick Presbyterian Church v. Mayor &c. of New York, 5 Cowen, 538. Vanderbilt v. Adams, 7 id. 349. Lloyd v. Mayor &c. of New York, 1 Seld. 374. Wilson v. Mayor &c. of New York, 1 Denio, 595.)
But while it appears to.me that the regulation of the rates
This is probably the most important question in the case. It is very clear that such a power, if it exists in the courts, ought to be most cautiously exercised. The corporation of New York are by their charters, taken in connection with their subsequent action under the same, vested with the property of certain ferries, and with the right to establish others. Incident to that right, in the absence of legislative action, must be the right to establish rates of ferriage. The right would otherwise be valueless. These rates should of course be reasonable. Who is to decide that question ? The legislature may do so, as I have endeavored to show. If they do so, the corporation are certainly justifiable for adopting their rates. If they do not, is not that very omission to act a tacit manifestation of the public will that it shall be left to the discretion of their grantees ? The defendants are themselves a local legislature; and, I think, they have a right to legislate on this question. If there were no general law, why might '
So far as the application is founded upon the allegation of a fraudulent combination between the common council of ¡New York and the Union Ferry Company, to enable the latter to obtain the lease by imposing terms which cannot be complied with by others, I think it must fail for the want of sufficient evidence of the fact. The allegation in the complaint to that effect is not verified. It is accompanied by the affidavit of Alderman Dayton, of his belief of the fact, but that is too vague and indefinite to operate as the proper foundation of an injunction. Besides, it is repelled, so far as it can be, by the affidavit of Comptroller Haws. The facts relied upon as sufficient evidence from which to infer the fraud, are, in my judgment, inconclusive. The shortening of the leases, to take effect in the contingency of a sale, but not otherwise, is well enough accounted for by the supposed importance of selling
The only remaining question to be discussed is, as to the effect of the law of May 14, 1845, upon the powers of the corporation, and as to the validity and operative character of that law. Assuming that that law is now in force, I am of opinion, that so far as it applies to future ferries, established after its passage, it is a valid exercise of legislative power. By its terms I do not understand it as applicable to existing ferries. The power granted to the city of Hew York by the Montgomerie charter to establish future ferries, is a mere power conferred upon the city, and not a right of property. It is a public or governmental power, whose exercise is inci
It follows, from these considerations, that if the law of 1845 has not been repealed by the act of 1857, it is valid and operative as to the two ferries which were granted or established after its passage. To that extent the provisions of the cnarter have been overruled by subsequent and paramount legislation. If that law is in force, the corporation of New York has no authority to lease the Hamilton avenue and "Wall street ferries; and their attempt to do so, is a threatened exercise of illegal power," which, from its grave character and serious consequences, may be properly restrained by injunction. In arriving at this conclusion, I do not come in conflict with the decisions of Mr. Justice Barculo, in the case of Benson v. The Mayor &c. of New York, (10 Barb, 223,) for he abstained from deciding the question; nor, necessarily, with that of Mr. Justice Boosevelt, in the'unreported case of The Mayor &c. of New York v. Benson, who is said to have decided in favor of an injunction restraining the defendants in that case from taking possession of and running the Fulton, South, Hamilton avenue and Wall street ferries. The defendants in that case justified or defended, under a single lease of these four ferries combined, and the decision may have been placed upon
But it appears to me that the act of 1845 was, by operation of law, repealed by the amended charter of 1857. These acts relate to the same subject matter, the ferries of Hew York, the former embracing the ferries to Long Island, the latter all the Hew York ferries, provide different and inconsistent modes of leasing or licensing the same, are both emanations of the same law-making power, and the latest expression of the legislative will must prevail. The act of 1845 contemplates a licensing of the ferries by commissioners, treating personally with the lessees, and not by a public sale, and an exercise of discretion on the part of the commissioners in the selection of the licensees, as well as in the number of ferries to be maintained; and the places where they shall be established. The act of 1857 is designed, I think, to establish a uniform and homogeneous system, applicable to all the ferries, and provides for a sale or leasing of all the ferries at public auction by the city auihor~ ities to the highest bidder. This is inconsistent with the exercise of the discretion and judgment of the commissioners required by the act of 1845. The machinery by which the results are accomplished is altogether different under these two systems, and I do not think they can stand together. By implication of law therefore, as well as by the express declaration of the 54th section of the act of 1857, which repeals all laws inconsistent therewith, (if it does not repeal large portions of the act of 1857 itself,) the act of 1845 must be deemed abrogated. It does not therefore stand in the way of the defendants.
The result is, that the motion for an injunction must be denied, and the temporary injunction heretofore issued must be dissolved; but as the question is of importance, and proper
Hogeboom, Justice.]