175 Misc. 795 | N.Y. Sup. Ct. | 1941
Motion for injunction pendente lite. Cross-motions
to dismiss the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. The plaintiff, j a taxpayer, brings this action to enjoin performance of contracts for the lease to the board of transportation of the city of New i York of two hundred and fifty omnibuses, having a capacity for. forty persons per vehicle, as omnibus equipment in substitution, of and to replace existing trolley car equipment for transportation i of passengers on certain street surface lines in Brooklyn. The leases were made with defendant Twin Coach Company with the approval and consent of the board of estimate of the city; they i provide, among other things, for the leasing of the omnibuses at a stipulated monthly rental, for a period of seven years at a total rental cost of $3,347,996.40, that the rental costs shall be con-. sidered operating expenses of the New York city transit system,' operated and maintained by the board of transportation (a State body) acting on behalf of the city of New York and that the rentals shall be paid from the operating fund of the system, composed of the revenues therefrom. I
The plaintiff claims that the board of transportation and the city are without power to acquire such equipment by lease under the provisions of the Rapid Transit Act (Laws of 1891, chap. 4, as amd.) and article VIII of the Public Service Law; that such equipment can only be acquired by outright purchase and must be paid for by the issuance of city bonds as required by said laws; that the contracts are also invalid because they are for a period of seven years, in contravention of subdivision 20 of section 8-b of the General Municipal Law, which fixes the period of probable usefulness of motor vehicles other than passenger vehicles having a seating capacity of less than ten persons, as five years, which fixation period, by section 2 of article VIII of the State Constitution is made conclusive and hence the contracts complained of violate this provision of the Constitution; there is the further claim that the contracts also violate section 4 of said article VIII of the State Constitution which limits and restricts the city’s constitutional indebtedness; and, finally, that the contracts are improvident.
At the outset it may not be amiss to state that the board of transportation and the city acknowledge, tacitly, at least, that there is no direct grant of power to acquire omnibus equipment by lease or to pay the rental charges therefor out of the said operat
The board of transportation solicits the attention of the court to the feature that if the board is held to be unpossessed of such implied powers it will necessitate the installation of cables and wires to enable the trolley cars to function and that the power cables and trolley wires of four of the lines are attached to the discontinued Fulton street elevated railroad structure which is to be demolished and this installation and relocation of electrical facilities will involve the city in a substantial outlay and that the lease of omnibus equipment as a substitution for the existing trolley car system of transportation is the better plan and method. I ascribe the best of motives to the board in entering into the contracts involved and it was clearly actuated by the firm belief and conviction that that course was for the best interests of the city. Such motive which is a matter of the balancing of conveniences cannot be accepted by the court as an element of consideration even though inclined to do so; such a plea must be addressed to the Legislature which may grant relief by appropriate enactments (Matter of Hering, 196 N. Y. 218, 220-221; Osborn v. O’Brien, 239 App. Div. 453; affd., 264 N. Y. 469); the duty of the court is to construe and interpret the law; it may not usurp legislative functions. (Osborn v. O’Brien, supra.)
Upon due reflection, it is my conclusion, for the reasons currently given, that there is no implied power in the board of transportation or the city to acquire such omnibus equipment by lease or to determine that the^rental costs thereof are payable as operating expenses from the said operating fund of the system, and this in my opinion presents sufficient reason to grant the injunction sought, irrespective of any other reasons assigned.
The powers of the board of transportation are to be found in the Rapid Transit Act and the Public Service Law. With respect to the operation and maintenance of rapid transit facilities and the acquisition of equipment therefor the provisions of these laws having any reference thereto are section 26, subdivision 4, and sections 27, 28, 30, 35 and 37 of the Rapid Transit Act and article VIII, sections 134J4 and 136 of the Public Service Law. These sections, with but one exception, all provide for contracting for construction and equipment and nowhere provide for the acquisition of equipment by lease; there is a consistent reference to contracting and the word lease is nowhere mentioned in that regard. For example, section 26 of the Rapid Transit Act (added as § 34 by Laws
! It is clear from these provisions as well as the titles thereof that no express grant of power is conferred upon the board to enter into any contract for the leasing of equipment, and while, of course, the title of an act forms no part of the law itself, yet it may be legitimately resorted to as an aid in ascertaining the legislative intent where that intent is somewhat otherwise obscure. (People v. Draper, 169 App. Div. 479.) And I think it is equally apparent that those statutes do not intend to confer upon the board or city any power to lease transit equipment except in the single instance mentioned and even then such power is expressly limited to leasing the use of tracks for the operation of cars thereon. Accepted canoos of statutory construction point to the conclusion that the expression of this limited purpose precludes the inference that the Legislature intended the statute to have a broader effect. (Matter of Hering, 133 App. Div. 293; affd., 196 N. Y. 218; Buoneto
In submitting the claim that the board has by fair construction, the implied power to lease omnibus equipment, reliance is placed on section 134% of the Public Service Law (as amd. by Laws of 1940, chap. 810, effective July 1,1940). This is entitled “Additional powers and duties of board of transportation,” and in the last sentence thereof it is provided that “ The board of transportation shall also be empowered to purchase all necessary materials and supplies for such operation and maintenance, and, generally, to exercise all requisite and necessary authority to manage and direct the operation and maintenance of such road for the convenience and safety of the public.”
While such a provision can be construed as conferring implied powers upon the board of transportation in addition to powers expressly granted, nonetheless it cannot be read as an isolated provision but must be read in connection with the general tenor of the whole law to which it refers or of which it forms a part. No one section or subdivision is to be picked out and literally applied. Section 134 relates to the “ Powers and duties ” of the board of transportation; section 134% relates to “additional” powers and duties of the board, but none of these sections'relate to or deal with the acquisition by lease of omnibus equipment for the operation and maintenance of rapid transit facilities. The power conferred by the mentioned sentence to purchase all necessary materials and supplies for operation and maintenance may not by reasonable construction be said to include in that category the acquisition of omnibus equipment by lease. A purchase of property involves a transfer of ownership, a passing of title; a lease thereof does not; title always remains in the lessor but the lessee merely has the use of the leased property until the expiration of the term. Nor can the power to purchase materials and supplies by reasonable implication be said to include a complete substitution of equipment. Materials relate to such articles only as enter into and form part of the finished structure or are capable of being so used and are furnished for that purpose (U. S. Fidelity & Guaranty Co. v. DuPont & Co., 197 Wash. 569; 85 P. [2d] 1085, 1089); supplies relates to something used directly in the carrying on of the work, something in addition to it (U. S. Fidelity & Guaranty Co. v. DuPont & Co., supra); those articles necessary for enabling an existing entity to function properly (Gibbons v. Steamboat Fanny
As used in section 134% the phrase “ all necessary materials and supplies ” clearly relates to the acquisition of such items as are necessary for the operation and maintenance of existing equipment; nor can “ materials and supplies ” be reasonably construed to imply new equipment or a complete substitution of existing equipment.
The phrase in section 134% “ and, generally, to exercise all requisite and necessary authority to manage and direct the operation and maintenance of such road ” means the right to conduct, to engage in, to act authoritatively in the business of such transportation (State v. Thomason, 276 N. W. 619, 620), to continue that which is in existence (Child v. Washed Sand & Gravel Co., 181 Minn. 559; 233 N. W. 586, 587; maintenance connotes the acquisition of items necessary to the repair and preservation of an existing structure and incidental to the carrying on of the service. (State ex rel. Kings County v. Murrow, 199 Wash. 685; 93 P. [2d] 304, 308.) Nor is this phrase to be read disconnectedly, wholly divorced from the text, but it is to be read with all other applicable and associated provisions of law. To hold otherwise would, it seems to me, render inoperative applicable provisions of the Rapid Transit Act; such was clearly not the intention of the Legislature for the Rapid Transit Act and the Public Service Law together are intended to form a consistent and harmonious whole. (Osborn v. O’Brien, supra)
I am not unmindful of the rule of statutory construction to the effect that if the language of a statute indicates that things other than those mentioned are intended to be included within its operation it will be so construed (Matter of Engel, 155 App. Div. 467) and the rule that whenever the provision of a statute is general, everything which is necessary to make such provision effectual is necessarily implied as if written therein (People ex rel. Huntington v. Crennan, 141 N. Y. 239, 244); likewise, the rule that whenever a statute grants the power to do an act all reasonable and necessary incidents in the manner of exercising the power are also granted. (Mayor of New York v. Sands, 105 N. Y. 210; People v. Davis, 78 App. Div. 570; Matter of Seneca Oil Company, 153 id. 594; affd., 208 N. Y. 545. See, also, Baird v. Mayor of New York, 96 N. Y.
The reason behind the rule allowing the court to give effect to necessary implications is that matters of minor detail are oftentimes omitted from legislative enactments and if these could not be supplied by implication the drafting of legislation would be an interminable process and the true intent of the Legislature likely to be defeated and the court in supplying a necessary implication is merely determining and making effective the legislative will. (Crawford, Statutory Construction [1940 ed.], § 168, p. 267.) But where the statute is express and specific as to the basic powers conferred, and expressly defines the exceptions, no others can be implied. (Matter of Hering; Buoneto v. Buoneto; Matter of Herle; Bowdler case, supra; Sutherland; Black, supra.)
The whole tenor of the Rapid Transit Act and the Public Service Law excludes any intention to confer upon the board of transportation or the city the power to acquire equipment by lease. Rather, a fair and reasonable construction thereof leads to the conclusion that the acquisition of equipment was intended to be accomplished by outright purchase. The suggestion is offered that analysis of the provisions of the Rapid Transit Act and the Public Service Law shows that they can have no application to the leases complained of in the instant action as the term “ railroads ” used in these statutes has a much narrower meaning than the term “ transit facilities ” as added to certain sections of the acts by amendment at the 1940 session of the Legislature and that prior to 1940 the Rapid Transit Act never contemplated the ownership or operation on behalf of the city of any “ transit facility ” other than “ railroads.” This is urging a strait-jacket construction which, if adopted, can only serve to defeat rather than carry out the true legislative purpose and intent. There is nothing mysterious about the words “rapid transit.” The scheme of rapid transit is old; and historical checkback will disclose that the very name “ rapid transit ” antedates and is far older than the Rapid Transit Act of 1875, apparently first so named.
The amendments are to be viewed and understood in connection with the history and purposes of the acts. (People v. Draper, supra, p. 485.)
Regarding the contention that the contracts are invalid in that they also offend section 2 of article VIII of the State Constitution and subdivision 20 of section 8-b of the General Municipal Law, these contentions appear to me to be meritorious and sound.
In view of the conclusions I have reached I do not consider it necessary to pass upon or determine the other questions presented
The effort of a judge to ascertain and express the legislative intent through statutory construction is generally regarded as an opinionative essay: but I believe the views expressed and the conclusions reached to be consonant with the accepted canons of statutory construction as expounded by courts generally and by those of last resort.
The contracts assailed are, for the reasons given, invalid.
The motion for an injunction pendente lite is granted and the cross-motions to dismiss the complaint are denied. Settle order.
See Pub. Service Law, $ 134.— [Rep.