30 N.Y.S. 552 | N.Y. Sup. Ct. | 1894
The plaintiff’s intestate was run over by a car upon a street railroad upon Owasco street, in the city of Auburn, and» was killed. The track of the railroad was laid and the road was operated by the defendants, under the name of the Auburn City Railway Company. It is alleged in the complaint that the defendants assumed and pretended to act as the officers of this corporation, and as such constructed the railway and laid down a track on Owasco street, and operated the said railroad by running its cars thereon. The complaint further alleges that the acts of the defendants in constructing and maintaining the road were done without any authority of law and wrongfully and unlawfully, because the Auburn City Railway Company, of which they claimed to be directors, and whose franchise to operate a road they pretended to control, was never in fact organized as a corporation, and for that rea-' son there was no right or franchise under which the defendants might lawfully maintain and operate a street railway company. For these reasons it is claimed by the plaintiff that the defendants, and not the corporation known as the Auburn'
The facts connected with the organization of this company are fully set out in the complaint. It appears that in the year 1871 there was organized by acts of the legislature a corporation known as the East Genesee Street & Seward Avenue Bailway Company, to which corporation was given the right, upon certain conditions, to lay tracks and operate a street railway in the city of Auburn and adjoining towns upon streets named in the act, one of which was Owasco street. It appears further that the common council of the city of Auburn, by resolution, authorized the East Genesee Street & Seward Avenue Bailway Company to construct a railway through certain of the streets in the city, including Owasco street,, and that pursuant to that permission a railway was constructed upon some of these streets, but not upon Owasco street. That company afterwards mortgaged its franchise and property, which mortgage was foreclosed in the year 1880, and the franchises and property were sold to certain persons who organized a new company under the name of the East Genesee Street & Seward Avenue railway. By virtue of that subsequent organization the new corporation became the owner of all the franchises of the old East Genesee Street & Seward Avenue Bailway Company, and operated its roads under these franchises until some time in the year 1886.
It appears further, by the complaint, that in the year 1886 there was existing in the city of Auburn another street railway company, known as the Auburn & Owasco Lake railway, which company owned and operated a street railroad in certain of the streets of Auburn which were not within the franchises of the East Genesee Street & Seward Avenue railway;
It is claimed by the plaintiff that the act, chapter 163 of the Laws of 1886, is unconstitutional; that for that reason there was no legal agreement for consolidation, and consequently no legal and valid organization of the new railway company, and as a result that the defendants, claiming to act as officers of a railway company which had no existence, are personally liable for whatever was done in that behalf.
It must be conceded that if there were no legal authority for the consolidation of these two companies, that the Auburn City Railway Company never acquired a legal existence. Latham v B., H. T. & W. R. Co., 38 Hun, 265, It must also be conceded, of course, that two railway corporations cannot consolidate without the authority of the legislature. Boone .Corp. § 186. The only authority under which this consolidation is asserted to have been made is that contained in the law of 1886, above referred to.
It was suggested by the defendants’ counsel that the con
The objection which is made by the plaintiff to the validity of that organization is based upon his claim that the law itself under which the organization purports to have been made is unconstitutional, because it violates that provision of section 18 of article 3 of the Constitution which forbids the legislature to pass a private or local bill granting to any •corporation the right to lay down railroad tracks. That this is a local bill of course cannot be denied. The only question, therefore, is, can it be said to grant to the Auburn City Railway Company the right to lay down railroad tracks ?
It is conceded that at the time of the passing of chapter 163 of the Laws of 1886 there were in existence in the city of Auburn two corporations actually engaged in operating street railroads, which were legally organized and had legally acquired the right to do the things which they were doing. Can it be said that this law, which authorized the consolidation of these two corporations, was in any'sense the granting to the Auburn City Railway Company of the right to lay down railroad tracks ? It must be remembered that the power of the legislature to create corporations by private and local act has never been limited by the Constitution. That power exists as fully now as it ever did exist. Whatever limitations to legislative power are contained in the Constitution must be
The legislature found at the time of the passage of the law 'of 1886 the franchise to operate this railroad and to lay down a railroad track upon Owasco street in full existence. It found also existing within the same city another franchise to operate railroad tracks upon other streets. These two franchises were complete and perfect and beyond the power of the legislature to destroy. People v. O'Brien, 111 N. Y. 2, It was expedient, apparently, that the operation of these, franchises should be put under one single head. That might be done by authorizing one of the railroads to become the owner of both franchises, or by permitting one corporation to merge in the other, ■or by making one corporation out of the two. Whichever way it was done it would not operate to bring into existence a new right to lay down and operate a railroad track, but would be only a manner of regulating the exercise of the rights already existing. The case is clearly, I think, within the following cases: Matter of New York Elevated R. R. Co., 70 N. Y. 327; Matter of Gilbert Elevated R. R. Co., Id. 361; Matter of New York Cable R. R. Co., 109 id. 32.
For these reasons I think that chapter 163 of the Laws of 1886 was not unconstitutional. It follows that the- Auburn City Bailway Company is legally organized, and that it alone is responsible for the negligence of its employees. The necessary result of that conclusion is that this complaint does not state a cause of action against the defendants.
Judgment for defendants.