7 N.Y.S. 788 | N.Y. Sup. Ct. | 1889
Lead Opinion
The circumstances relating to the organization of the United States Illuminating Company and the Brush Electric Illuminating Company are so similar that it is not necessary, in the statement of facts, to refer distinctly to those two plaintiffs. The Mount Morris Electric Light Company stands in a different position in some respects, which will be hereafter noticed. The two plaintiffs first above mentioned seem to hawe been organized, pursuant to the laws of this state, for the purpose of generating and distributing through New York city electric currents, for light and power. They were authorized to erect and maintain wires, poles, and other fixtures incidental to their business, over and upon the streets of the city, upon obtaining the consent of the municipal authorities. This consent was given by resolution of the common council; and pursuant to this authority a large amount of money has been invested in the business for the prosecution of which these companies were organized, and poles have been erected and wires strung by virtue of their charters, and with the permission and under the protection of the municipal authorities. In 1884 the first act of the legislature was passed, looking to a suppression of the evil, which had been recognized, of allowing telephonic and electrical companies to occupy those parts
In 1887, another act was passed, entitled “An act in relation to electrical conductors in the city of Hew York,” (Laws 1887, c. 716,) by which, after its passage, the board of commissioners of electrical subways in and for the city of Hew York heretofore appointed, together with the mayor of said city for the time being, were constituted a board of electrical control in and for the city of Hew York, and upon this board were conferred all the powers and duties imposed by the act of 1885 upon the commissioners appointed thereunder, and all the powers and duties theretofore by any law conferred or imposed upon the local authorities of said cities, or any of them, in respect to or affecting the placing, erecting, construction, suspension, maintenance, use, regulation, or control of any electrical conductors or conduits or subways for electrical conductors in said cities; and it was provided that such powers should thereafter be exclusively exercised or performed by said board of electrical control. By the third section, it was provided that whenever, in' the opinion of the board, in any street or locality of any city, a sufficient construction of conduits or subways under ground should be made ready, under the provisions of the act, it should notify the owners of the electrical conductors above ground in such street or locality to make such electrical connections in said street, or through other streets, localities, or parts of the city, with such under-ground conduits or subways, and to remove poles, wires, etc., above ground, and their supporting fixtures or other devices, within 90 days after notice to such effect should be given. This provision was made a police regulation in and for the city of Hew York; and, in case it was not complied with, it was made the duty of the commissioner of public works to cause the same to be removed forthwith by the bureau of incumbrances, upon the written order of the mayor of said city to that effect. The fourth section is as follows: “See. 4. It shall be unlawful, after the passage of this act, for any corporation or individual to take up the pavements of the streets of said city, or to excavate in any of said streets, for the purpose of laying under ground any electrical conductors, unless a permit, in writing, therefor shall have been first obtained from the said board, or its predecessors; and, except with such permission, no electrical conductors, poles, or other figures or devices therefor, nor any wires, shall hereafter be continued, constructed, erected, or maintained or strung above ground in any part of said city. The said board of electrical control may establish, and from time to time may alter, add to, or amend all proper and necessary rules, regulations, and provisions for the manner of use and management of the electrical conductors, and of the conduits or subways therefor, constructed or contemplated under the provisions of this act, or of any act herein mentioned.”
Pursuant to the authority thus conferred, certain subways in this city have been constructed; but sufficient for the operating of the under-ground wires of the two plaintiff companies above mentioned have not been constructed or provided for their use, and they have not been permitted to construct the same upon plans of their own. Under the authority conferred by the acts above mentioned, the plaintiff, the Mount Morris Electric Light Company, has constructed its plant, pursuant to the rules and regulations, and under the supervision, of the board of electrical control. Various accidents having occurred, the attention of the board and the city authorities was called to the
It seems to us that but two questions are presented by this appeal, and they are—First, even if the board of electrical control in those cases where subways have not been provided, have refused permission to these plaintiffs to make such repairs as were necessary to keep their plant in a perfect and safe
. The proposition, then, which is presented, is, in view of the rule of law requiring the plaintiffs, because of the dangerous character of the business which they are conducting; to use the highest degree of diligence, when the plaintiffs have failed to comply with this obligation, and when human life is threatened because of this failure, have not the public authorities—or, for that matter, any citizen—the right to at once remove such danger, as a common nuisance? We think there can be but one answer to this proposition; and that under such circumstances the law allows this summary method of doing justice, because injuries of this kind require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of j udicial procedure. In other words, human life is more sacred than the forms of legal procedure. When it is apparent, as in the case at bar, that the condition of the wires of the plaintiff is such tiiat they are dangerous to human life, and that any passer-by, without negligence on his part, is liable to be struck dead in the street, can it be said for a moment that the public authorities have no power to abate this nuisance, and protect the lives of its citizens ? Indeed, it is one of their highest duties; and, if they allowed such a condition of affairs to continue, they might make the city itself liable for the damages sustained by reason of their negligence in not removing the common nuisance.
But it is said upon the part of the plaintiffs that “our large investment of capital is thus left to the mercy of the public authorities, and we are at least entitled to some notice of the defects complained of, that we may remove the same.” This proposition involves a claim upon the part of these corporations that the public authorities shall perform a duty which the law devolves upon themselves, namely, the proper inspection of their own apparatus, which is liable to become dangerous at any time, and the immediate remedying of the difficulty. It is not a part of the duty of the public authorities to inspect the apparatus of private corporations, and warn them when such apparatus becomes dangerous to human life.
There is one fact which seems to be established beyond question upon the
In the determination of the question as to whether the commissioner of public works should have been enjoined in the removal of those wires which were not properly insulated, it is not necessary for us to consider or discuss this dispute. The mere fact that the board of electrical control refused permits to which the plaintiffs were entitled, forms no excuse for their allowing these wires to get in this condition, and remain so for the periods of time established by the papers before us. There is no question but that if the operation of their system bad depended upon the procuring of these permits to which they were entitled the plaintiffs would have found ready means to call the board of electrical control to reason. But, by sheltering themselves under this, as they now claim, unauthorized action of the board, they undoubtedly thought themselves excused from the expenditures of money necessary to render their apparatus safe for operation. As has already been said, this formed no excuse for a longer time than would have been necessary to make an application to the courts to enforce their rights against the board of electrical control. It should be observed that the complaint alleges that whatever disputes had arisen between the board of electrical control and the companies in respect to the making of repairs had been settled prior to the commencement of this action, and that the board had construed its rules so as to allow the plaintiffs to take down old wires where this was deemed necessary, and replace them by new wires, protected by new insulation; and it further appears by the other papers that this occurred in August, 1889. The complaint further alleges that it was still uncertain whether said board would allow the new wires which are erected in place of the old ones taken down to be of larger size and greater conductivity than the wires which they replace. This, being new construction, was clearly a matter within the discretion of
It further appears from the papers in this case that at the time of the commencement of these suits the wires of these companies were in a terrible condition, in respect to imperfect insulation, and that they were a menace upon all sides to the safety of the passer-by upon the public streets. The commissioner of public works, under these circumstances, in view of his duty to remove obstructions from the streets, whether dangerous to the citizens or otherwise, had the duty devolved upon him to abate the nuisance at the earliest possible moment. It is true that in taking such action he undoubtedly did so at his peril; and, in an action brought against him for the violation of the property rights of any one of these companies, he would be bound to show such a condition of affairs as rendered the existence of the wires so removed a public nuisance. It is claimed upon the part of the plaintiffs that the commissioner of public works asserted the right to remove a whole line of wire because of a single defect. This, however, does not seem to be clearly established. He undoubtedly had no right to remove more than was necessary to abate the nuisance. But this right existed in the commissioner of public works, in common with any other citizen who desired to use the streets of the city. It is undoubtedly true that no power other than that connected with his office was conferred upon the commissioner by the resolution of the board of electrical control, or the direction upon the part of the mayor. The contingency had not arisen which authorized the board of electrical control, as a body, to put the commissioner of public works in motion; nor was the mayor authorized to confer any authority upon the comissioner in respect to this matter which he did not enjoy by virtue of his office. Therefore, in the consideration of this question it has not been deemed necessary to discuss the action of the board of electrical control or of the mayor.
It has also been assumed that these plaintiffs have a right to continue and maintain overhead wires until the subways should be ready, provided such wires are maintained in such a manner as not to be dangerous to human life; and that they have a right, when such wires become out of repair, to repair the same, subject to the reasonable regulations of the board of electrical control; and that it is the duty of the said board, if necessary, to give the plaintiff permission to do so. The learned judge in the court below seems to have conceded these propositions, and said: “The plaintiff owes a duty to the public to keep its wires safe; and, if the board would not take the necessary action to enable it to remove dangerous wires and put up safe ones, it should have applied to the courts for relief. Under these circumstances, I think it was not only a proper and necessary regulation for the board to require the plaintiff to discontinue the use of such overhead wires as were not properly insulated, but that it was the plain duty of the board to make such regulation. Whoever may be responsible for the failure to supply subways, and whether the plaintiff is wholly or only partially responsible for the fact that its unsafe wires were not repaired, when it became apparent that human life was endangered by reason of the imperfect insulation of some of its wires it was the right and duty of the board to direct the immediate discontinuance of the use of such wires. Nor do I think it was necessary to the validity of such action that the plaintiff should have had notice, and an opportunity to be heard and to remedy the defects, before the resolution was adopted. A wire carrying a heavy current of electricity, and not properly insulated, is dangerous to life, and is a public nuisance; and I think the board had the right to direct the immediate discontinuance of such wires, without notice to the plaintiff. I am inclined to think, however, that the resolution which was adopted went too far, in providing that such discontinuance should continue until the expert of the board should certify that such wires were in a proper and safe condition. The plaintiff has no control over
Considerable has been said upon the argument, and is also contained in the-brief of the counsel of one of the parties plaintiff, that the power to remove nuisances which had become dangerous to life is vested in another department of the city government. It may be true that the board of health, under the peculiar phraseology of the act conferring powers upon them, would have a right to remove these wires, because dangerous to human life. But their power was not exclusive. The department of public works had a right also, and it was its duty, to keep the streets of the city of New York in a passable condition, and to remove all obstructions which interfered with their use, and therefore'had ample authority to abate this nuisance. If this was not so, will a court of equity intervene, by injunction, to restrain the abatement of a nuisance by the public authorities simply because the proper department is not acting? We think not. The nuisance existing, the court will not limit its abatement to any particular officer of the municipality, unless the exclusive power is plainly conferred upon one department. Even then, the right of an officer of the municipality to act as a private citiz.en, in a perfectly clear case, would not be affected.
The counsel for the respondents, while apparently conceding the right of the commissioner of public works to remove an imperfectly insulated wire* urges that the right of removal must in the first place depend upon a determination by the commissioner of the condition of the fixture, and this he has no right arbitrarily to determine without notice, and without affording the plaintiffs an opportunity to be heard; and, if the pole or wire is defective or unsafe, it should not be removed, or the nuisance abated, without granting to the plaintiff an opportunity to remedy the alleged defect. That the commissioner should not act arbitrarily, and without a determination as to the condition and existence of the nuisance, is undoubtedly correct; but where a party erects and maintains knowingly a public nuisance in the streets of New York, necessarily dangerous to human life, we know of no rule of law which requires the public authorities, or the public, to abandon the streets until the party maintaining the nuisance shall have an opportunity to be heard as to its existence, and, after such hearing, an opportunity to remove the same. In his proposition the learned counsel seems to us to overlook the important fact that it is because of the gross negligence of the plaintiff that these wires were allowed to become a public nuisance, as they are conceded to have been at the time of the commencement of this action. The plaintiffs have been guilty of a willful violation of a manifest duty in allowing these wires to become dangerous. They are without excuse; and when they claim that the destruction of these instruments of death, maintained by them in violation of every duty and obligation which they owe to the public, is an invasion of their rights of
Some of the affidavits contained in the record appear to claim that the commissioner of public works, although not acting wantonly in his attempts to •abate the existing nuisance, yet either had removed or threatened to remove, before the hearing of the motion in the court helow, certain wires which were not in a defective condition. We have not deemed it necessary to advert to •those claims, because the complaint, as filed, contains no averments under which proof of such facts would be admissible; and, as the relief granted must depend upon the allegations of the complaint, no such question is presented for consideration. It follows, therefore, that the order appealed from •should be reversed, with $10 costs and disbursements.
Concurrence Opinion
While concurring in the conclusion arrived at by the presiding justice, and also in what he has so forcibly said, there are one or two additional considerations which it may, perhaps, not be unprofitable to place upon record. We start with the constitutionality of the act of 1885, deliberately settled by the court of appeals: Squire's Case, 107 N. Y. 593,14 N. E. Rep. 820. A careful comparison of that act with the act of 1887 shows no such divergence in the latter enactment as to render its constitutionality •doubtful. This has been affirmed in several cases, (Illuminating Co. v. Hess, 3 N. Y. Supp. 777; and see Telegraph Co. v. Mayor, 38 Fed. Rep. 552; and Electric Light Co. v. Grant, MS. opinion, Ingraham, J.;) and it cannot be. doubted that if the act of 1887 had been before the court of appeals it would have received the same treatment as the act of 1885; for the principles enunciated by Buger, O. J., in the Squire Case, supra, are directly applicable to the provisions of the later enactment. It is true that a literal and strained construction of section 4 of the act of 1887 might subject some of its provisions to constitutional objection. The plaintiffs have undoubtedly acquired property rights and franchises of which they cannot be deprived without just compensation. They are duly incorporated, under legislative sanction. They have obtained the consent of the local authorities to their corporate use of the streets, and they have obtained this pursuant to legislative direction. Upon the faith of this authorization from the law-making power, they have expended large sums of money, and otherwise acted upon the legislative license. From this condition of things, two propositions flow: First, the license having been acted upon, and something done by the licensee in consideration thereof, it has become invested with the qualities of a contract; second, such of the companies’ operations as may reasonably be said to have been contemplated by the legislature cannot be deemed a nuisance. So far as the public is concerned, the legislative power, within its constitutional limits, is substantially omnipotent. A proper construction of this fourth section, therefore, calls for the clear recognition of the cardinal considerations—First, that there can be no implication of a legislative intention to deprive the plaintiffs of their vested rights; second, and, on the other hand, that there can be no implication of any such intention to authorize an inherent nuisance,—not merely something which, but for legislative sanction, would constitute an illegal structure in the highway, but something essentially malum in sé. Thus viewed, there is little difficulty in giving this section a reasonable and
If, then, the plaintiffs’ entire systems are necessarily and unavoidably dangerous to human life, as matter of fact, they can be restrained or abated by appropriate proceedings; for, so far as their mode of using electricity is thus, dangerous to human life, it is without legislative authority, express or implied, and the systems, under such use, become nuisances. But the entire-structure cannot be summarily destroyed, if the particular nuisance can be otherwise restrained or abated. Where the offense consists in the wrongful use of what is harmless in itself, the remedy is to stop such use, not to tear down or remove the structure. Moody v. Board, 46 Barb. 665, 666, citing Barclay v. Com., 25 Pa. St. 503. If the entire system becomes, as a conclusive and openly apparent fact, so flagrantly and imminently dangerous to human life as to come within the principles governing conflagrations and pestilence, the corporate authorities can doubtless summarily abate it. If, however, the systems are not necessarily and unavoidably dangerous to human life; if they can be kept in a safe condition by active vigilance and proper repairs,—they are permitted to continue until the subways are ready for their
At this point we come to the practical question raised upon the motion below. Here let me say that my difference is not with Mr. Justice Andrews’ opinion in the main, but with his order. That opinion is a careful, exhaustive, and generally accurate statement of the facts and the law. Indeed, I cannot see that we reach this point by different roads. The learned judge concludes that non-insulated wires are nuisances, and that they should be promptly abated. But he thinks that before abatement by the public authorities the companies should have notice, and a reasonable opportunity to repair; and that an injunction, upon the facts before him, should issue to restrain a summary abatement of the nuisance or nuisances until the person attempting such abatement has given the companies this notice, and such reasonable opportunity to repair, it is here that our roads diverge. I cannot think that such an injunction was authorized by the case presented by the complaints. Moreover, the equities of the bills were fully denied. Nor is there sufficient proof in the affidavits to justify the apprehension that these public officers are acting in a wanton or oppressive spirit, nor to warrant the belief that the abatement of non-insulated wires is to be used as a pretext for the unnecessary destruction of any part of the plaintiffs’ system which is not really dangerous to the community. The case is consequently within the principles laid down in Hart v. Mayor, 9 Wend. 571; Meeker v. Van Rensselaer, 15 Wend. 397; Cronin v. People, 82 N. Y. 320, and similar cases. It is freely conceded that this power of abating nuisances must be reasonably exercised, and, as is said by'Judge Dillon in his work on Municipal Corporations, (volume 1, §95,) “although the power be given to be exercised in any manner the corporate authorities may deem expedient, it is not an unlimited power, and such means only are intended as are reasonably necessary for the public good. Wanton or unnecessary injury to private property and private rights are not thereby authorized.” Citing Babcock v. City of Buffalo, 56 N. Y. 268. There is another principle which should be conceded with equal freedom; and that is that the corporate authorities cannot by their mere declaration make that a nuisance which in fact is not. Where, however, the thing sought to be abated is “intrinsically and inevitably a nuisance,” there, as is said by Judge Dillon, (volume 1, § 379,) the authority to preserve the health and safety of the inhabitants and their property is a sufficient foundation for ordinances suppressing and prohibiting it. “Much,” lie adds, “must necessarily be left to the discretion of the municipal authorities; and their acts will not be judicially interfered with, unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights, or clearly transcend the powers granted to them.” The cases cited abundantly establish the proposition that Mr. Gilroy had a right summarily to abate the common nuisance of any non-insulated wire found to exist in the plaintiffs’ systems. He had this right both individually and officially, and he was not dependent for his justification upon either the resolution of the board or the order of the mayor. In Meeker v. Van Rensselaer, supra, the defendant was an alderman. He was sued for pulling down five dwelling-houses, which were proved to be nuisances. He also proved that the board of health had directed the nuisances to be abated. The supreme court held that his justification on the latter head failed, because the minutes of the board had not been produced; but the court said that in its judgment the proof was immaterial, “because the defendant did not need any authority from the board of health. As a citizen of the Fifth ward who desired to preserve the public health, and especially as an alderman, he was fully justified in every act done by him.” According to the ruling now under review, a court of equity might have enjoined that citizen and alderman until
To require a preliminary notice under such circumstances would be to paralyze the legal agencies provided to secure the safety of the inhabitants of the city, and to set a premium upon corporate negligence; that, too, in a case where the highest corporate diligence is demanded, nothing whatever should be permitted to stand between the officer of the municipality and the actually nail-insulated wire, nor should he be hindered or delayed for one moment in his laudable purpose of protecting his fellow-citizens by its neutralization. If in destroying its deadly force the officer exceeds his duty, the remedy at law is ample. So, also, is the remedy in equity, if he shall attempt unnecessarily to destroy the entire system, or so large a part of it as substantially to bring about that result, or otherwise to work irreparable injury, in the sense which we have pointed out. But, so long as he acts fairly and moderately, without wantonness or oppression, he has nothing to fear. At all events, the la^t thing that should be set in motion to paralyze his honest efforts for the protection of human life is the power of a court of equity, exercised on mere motion pendente lite. In my judgment, this part of the order should be reversed, and the injunction, as to Gilroy, wholly dissolved. That part of the order which enjoins the board of electrical control from preventing repairs was clearly unauthorized. It is in the nature of a final, mandatory judgment, and is in effect a peremptory mandamus, granted before trial in an equity suit. The facts upon which it was granted showed that the only substantial dispute was as to the right to replace old wires by new ones,
Van Brunt, P. J. I concur in the additional suggestions contained in this opinion.
Concurrence Opinion
I concur with my brethren that the order appealed from should be reversed. 1 regret that my duties in the oyer and terminer have been so-prolonged that I am unable to state fully my views of the questions presented for consideration on this appeal; and I must content myself with a very brief opinion, in order not to delay the decision herein. Whatever rights the plaintiffs have acquired by legislative grant are subject to the dominant law of public safety; and it must be assumed that such rights were secured and invoked with knowledge of this controlling principle. The legislature has no power to violate it,- and consequently none to authorize an enterprise to be conducted in the public streets by the use of a death-dealing factor, unless the conditions imposed, surrounding and controlling it, are such as to secure the public safety, not for a time, but for all time during its use. And whenever this safety ceases to exist, business immediately becomes a nuisance, more or less, and may be abated as such by any citizen who chooses to exercise the power; he assuming only the responsibility of proving it to be as asserted. Indeed, the object of the subway for which the legislature called and provided by various acts is undoubtedly, in part, at least, based upon the dangerous character of the plaintiffs' business, and the legislative duty of securing the public safety. The creation of a business, extra hazardous, in the public streets, or of organizations to use elements therein dangerous to life from their very nature, can only be legal, if at all, when they are so burdened as to secure the public safety preliminarily to such use, and its continuance, by the untiring and, indeed, unfailing vigilance of the person or corporation. If this cannot be done, then a nuisance is created and exists, and not a lawful enterprise. There should, in other words, be no intervals of this safety when life may be sacrificed by the condition of some instrument or agency used in the business. This may seem to be a severe, even harsh, rule; but the duty to secure the-public safety, the lives of citizens, renders its enforcement imperative.
