87 N.Y.S. 789 | N.Y. App. Div. | 1904
On the 13th day of April, 1891, the common council of the then city of Brooklyn adopted the following resolution :
“ Resolved, that Clark D. Rhinehart and John Guilfoyle of the City of Brooklyn, their successors and assigns, are hereby authorized and empowered to open the streets, avenues, lanes, roads, highways and public places of the said city, and to lay and maintain therein pipes, tubes, conduits, conductors and the appliances therewith nécés-i sary for the- conveying, using and supplying of gas generated from ammonia to the houses and buildings in the said city, for the purpose of refrigeration; provided, however,
“ That the said Rhinehart and Guilfoyle, their successors and assigns, shall accept this franchise, and shall within one year from the adoption of this resolution erect and complete a plant of proper and suitable machinery for the generation of such gas in the near vicinity of Wallabout Market at an actual outlay of at least one hundred thousand dollars; and-further provided that thó work of opening the said streets, lanes, roads, highways, or public places, and that of laying and maintaining therein the necessary pipes, tubes, conductors and appliances, shall be under the supervision and inspection of the Department of City Works, and shall be subject to all reasonable rules, regulations and conditions prescribed, or to be prescribed, by the Department of City Works or by the Common Council.”
Subsequently, by resolution of the common council, this resolution was extended six months to permit the grantees to perform their contract to construct a plant, and the petition in the proceeding now before us shows that the relators accepted the franchise attempted to be granted by the above resolution, and that they performed all of the conditions mentioned therein, and that they have for a number of years last past operated and maintained two plants for the production of ammonia gas for purposes of refrigeration. On the 6th of August, 1903, the relators asked permission of the commissioner of public works for the borough of Brooklyn to lay pipes, conduits, etc., in certain of the public streets of the borough of Brooklyn, which permission was refused, and this proceeding was instituted to compel the granting of this request! The learned court at Special Term has entered an order directing a peremptory writ
The appellant does not question the facts in any way, but relies upon a denial of the power of the common council to grant the franchise attempted, to be granted. It is fundamental that a municipal corporation holds its public streets and places in trust for the public, and that the power to regulate those uses is vested in the Legislature absolutely. It may delegate that power, as any other appropriate power, to .the municipal corporation, but. without such delegation any such act by the corporation, because of its not being within the strict or implied terms of its chartered powers, would be invalid. (Potter v. Collis, 156 N. Y. 16, 30.) What the common council attempted to do by its resolution of April 13, 1891, was to grant to the relators an exclusive interest in the streets, and the rule is well settled that an act conveying franchises or special privileges is to be construed most favorably to the People, and all reasonable, doubts in construction must be solved against the grantee. Words and phrases which are ambiguous, or admit of different meanings, are to receive, in such cases, that construction which is most favorable to the public. (People v. Broadway R. R. Co., 126 N. Y. 29, 37, and authorities there cited.) The relators recognize the necessity of showing legislative authority for the action of the common council, and our attention is called to- subdivision 3 of section 12 of title 2 of chapter 583 of the Laws of 1888, in connection with other sections, as the foundation for the power attempted to be exercised. Said subdivision of the section provides: “ The common council shall have power within said city to make, establish, publish and modify, amend or repeal ordinances, rules, regulations and by-laws, not inconsistent with this act, or with the constitution or laws of the United States, or of this State, for the following purposes: * * * 3. To regulate all matters connected with the public wharves and all business conducted thereon, and with all parks, places and streets of the city.” (See, also, tit. 22, § 22, and tit. 19, § 19, which the relators seem to think have some bearing upon the question.)
Is this a delegation of a power to grant franchises to private individuals ? If the lawmaker was present, and he was asked if he had intended to comprehend this case when the statute was enacted,'
Whatever may have been the powers of the common council to . grant a license for the purpose of laying pipes in the streets, and upon this we pass no opinion, we are convinced that it never had any power to grant a franchise investing the relators with an interest in the streets and the legal right to use them as a foundation for their private business. A municipal corporation, in the machinery of the State, is a mere agency. It possesses no inherent and independent authority to create rights in others, which affect the public interests. (Potter v. Collis, supra, 30.) • In the absence of ar specific delegation of power to grant franchises'tó private individuals, a mere general authority over the highways cannot be construed to give the power attempted to be exercised by the common council of the city of Brooklyn in the matter now before us. “ A franchise,” to quote the language of the court in Woods v. Lawrence County (1 Black [U. S.], 386, 409), “is a privilege conferred in the United States by the immediate or antecedent legislation of an act of incorporation, with conditions expressed, or necessarily inferential from its language, as to the manner of its exercise and for its enjoyment.” Nowhere in the charter of the city of Brooklyn do we find any language which attempts to delegate the power of creating or granting franchises of the character of that which is asserted by the relators. The power to “ regulate all matters connected with the public wharves and all business conducted thereon, and with all parks, places and streets of the city,” is not a power to grant a special privilege to individuals, involving not alone the right to put in pipes, conduits, etc., but the right to perpétually maintain them, and to have an exclusive interest in the streets for the purpose of carrying on the private business of the relators; it is not a delegation of the power to grant to individuals a right of property in the highways held in trust for the public (Potter v. Collis, supra, 30; Beekman v. Third Avenue R. R. Co., supra), and it could give no force or effect to the resolutions of the common council granting such rights.
The fact that the relators have complied with the conditions prescribed, and that they have, in common with other property owners, discharged the obligation of paying taxes upon their possessions, or the further fact that the granting of this franchise would be bene
The order appealed from should be reversed and the application for a peremptory writ of mandamus denied, with costs.
All concurred
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.