West Side Electric Co. v. Consolidated Telegraph & Electrical Subway Co.

96 N.Y.S. 609 | N.Y. App. Div. | 1905

Lead Opinion

Patterson, J.:

The matter in contest between the ■ parties to this record is brought before the court by two appeals,, one from a judgment in ah action ih which the relief was sought oí a perpetual injunction against the defendant to restrain it from interfering with or. obstructing the plaintiff in the maintenance of certain cables and electrical conductors located in subways or ducts in the city of New York, and the other from a final order dismissing and quashing an alternative, writ of mandamus, which had- been directed to the defendant, to enforce a right claimed by the appellant to lay or place other cables for electric lighting purposes in subways' in the city of New York. • ■

The single question involved in both the action and' the special proceeding relates to the existence of a right on the part of the appellant to use the subways as -claimed by it. It is conceded that it has what may be called an- apparent authority (to use those subways ; that is to say,, it" lias.,-received the consent and authority of the board of electrical control of the city of New-York, and it. insists that under the law that, consent and authority is all that -is required to enable it lawfully to lay, construct and maintain wirés and other appropriate appliances for conducting and' distributing electricity in subways under the streets, avenues and public places in - -the City of New York. The-defendant and respondent insists that the apparent consent and authority referred to is inadequate and insufficient to confer, upon the appellant the right it asserts, but, on the contrary* that the power to grant the .necessary consent and authority resided only in the board of aldermen of the city of New York. - .

The. situation, so far as the appellant is concerned, may be stated ' in a few words: It is an electrical company,, organized in October, 1896, under the Transportation Corporations "Law, which became operative on May 1, 1891.^* Its corporate purposes are to manufacture and use electricity for lighting, heating or furnishing power and in lighting streets, avenues, public parks and places and public and private.buildings in tjie city and county of New York. By subdivision 2 of Section 61, of article 6 of the Transportation Corporations Law (Laws of' 1890, chap, 566), it is provided that,if a company is incorporated “ for the purpose of using electricity for light, heat or power,” it shall have power “ to carry on the business of lighting by electricity or using it for heat or power in cities, towns and villages within this State, and the streets, avenues, public parks and places thereof, and public and private buildings therein; and for the purposes of such business to generate and supply electricity; and to make, sell or lease all machines, instruments, apparatus and other equipments therefor, and today, erect and construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures in, on, over and under the streets, avenues, public parks and places of such cities, towns or villages, for conducting and distributing electricity, with the-consent of the municipal authorities thereof, and in such manner and under such reasonable regulations as they may prescribe.”

The appellant, on October 30, 1896, procured from the board of electrical control of the city of Hew York an authority, permit or certificate which recited that the appellant had petitioned the board of electrical control for afranchise to do business in the city of Hew York and had filed a certificate of its incorporation with that board and it was, therefore, resolved, “ that the West Side Electrical Company having filed the necessary certificate with the Secretary of the State of Hew York and the Clerk of the City and County of Hew York permitting it to do business, be and it hereby is authorized and empowered to lay and construct suitable wires or other conductors in subways under streets, avenues, public parks and places in the City of Hew York for conducting and distributing electricity under the direction of the Board of Electrical Control, subject to all existing rules applicable thereto and to all regulations which the Board may hereafter impose by resolution or otherwise, provided always, and this consent is given on that express condition and not otherwise, that until the further order and resolution of this Board, the electrical conductors of said company shall be laid or constructed by the Consolidated Telegraph and Electrical Subway Company, under and in pursuance of .the statutes of the State of Hew York' and under the supervision of this Board.” Acting under the authority thus conferred, or sought to be conferred, the appellant procured permits to open the streets and to introducé its wires or cables in subway ducts.

The respondent, the Consolidated Telegraph and Electrical Subway Company was incorporated in December, 1885, under the Telegraph Act (Laws of 1853, chap. 471)-, but such ■ powers as it possesses as ;a subway companyt-are derived from two agreements, - one of July,. 1886, and the other of April, 1887, confirmed by -section 6 of the Subway Act of 1887 (Laws of 1887, chap. 716). As is well stated by counsel for the appellant, “ the general nature pf the obligation of the subway company under said' contracts and statute, is: to supply ducts to all corporations duly authorized to install and operate electrical conductors hi .the streets of the city, giving equal facilities to all and receiving equal rentals from all.” After the appellant received the permit or certificate from the' board of electrical control, the respondent permitted it to open the streets-and lay cables in the. ducts, and for some timé the appellant used those cables and ducts and paid rent therefor, and the right of the, appellant seems to have passed without challenge until June 15, 1903, when it was notified by the respondent, through its secretary -and general superintendent, that it had been advised that the appellant was. a-company not having lawful power to operate electrical conductors in any street of the city of New York, and that the respondent was not, therefore, authorized to lease 'its sxibways . and ducts to or permit the Use by the appellant. Reasons in -the ' nature of excuses for the respondent delaying action in the premises •are then set forth in the notice (which reasons it is not now necessary to consider) ; but the distinct requirement was made that the appel-" lant'forthwith remove and withdraw al! its cables from the subways and ducts of the company “ on the ground that you :are not a company having lawful power to operate electrical conductors in the ' City of New York, or any part thereof.” Counsel' for the appellant calls attention to the history -of the ■ legislation respecting electric lighting, in the State of New York, and points out thai the first statute concerning that sxtbject was chapter 512 of the Laws of 1879, subsequently amended by chapter 73 of the Laws-of 1882, whereby the formation of corporations was authorized to carry on the business of'lighting by electricity ; and section 2'of'the act provided that such a corporation should have -power-tojay, erect and construct suitable wires, etc., in cities, towns or villages, “ with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe.” It is conceded that at the time of the passage of the act of 1879 the common council of the city of Hew York was the municipal authority vested with the power to grant consents on behalf of the city, and it is also admitted that that power remained in the common council until the year 1887. In 1884 and 1885 a new body to be known as the board of commissioners of electrical subways in the. city of Hew York, was created by the , Legislature, and" to that new board was Confided the duty of regulating and controlling the use of the streets of the city of H ew York for electrical wires or conductors. In 1887 the Legislature passed an act (Chap. 716) relating to electrical conductors in the "city of Hew York, and by that act was constituted the board of electrical control in and for the city of Hew York. By section 1 of that act it was provided that “ all the powers and ^duties conferred or imposed by the said act chapter four hundred and ninety-nine of the laws of eighteen hundred and eighty-five, upon the commissioners appointed thereunder in and for the city of Hew York, and all the powers and duties heretofore by any law conferred or imposed upon the local authorities of said city, or any of them, in respect to or affecting the placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits or subways for electrical conductors in said city are hereby transferred to and conferred and imposed upon, and shall hereafter be exclusively exercised and performed by the said board of electrical control, constituted as provided in this act, and its successors as hereinafter provided.” That is the board from' which.the appellant received the consent upon which it relies.

What has been heretofore stated is sufficient to indicate the general aspect in which the controversy .now comes before us, and it will be seen that the real issue is whether the appellant acquired a franchise to do business in the city of Hew York under the provisions of the" Transportation Corporations Law. The court below determined that it had not, and we are coihpelled by authority to acquiesce in that determination. It is evident that the appellant and the respondent and the board of electrical control were all of opinion that the municipal authority referred to in subdivision 2 of section 61 of the Transportation Corporations Law was the last-mentioned board, a view which, would be now adopted by us were it not for a' contrary expression of opinion by the Court of Appeals, úthich we deem to be controlling. Subdivision 1 of section 6Í of the Transportation Corporations Law relates to gas companies. . Tlie powers conferred are “ to manufacture, sell arid furnish such quantities óf gas as may be required in .the city, town or village where thexsame shall be located, or said two or, more villages or towns, not over five miles distant from each other * * * and to lay conductors for conducting gas through the .streets, lanes, • alleys, squares and highways,, in such city, villages or towns, with the ■ consent of the municipal authorities, thereof, and under su.ch. reasonable regulations as they may prescribe,” etc.

In Ghee v. Northern Union Gas Co. (34 App. Div. 551) a taxpayer brought an action under chapter'531 of the Laws of 1881, as amended.by chapter' 301 of tlie Laws of 1892, to restrain the laying of gas mains in certain streets of. the city óf New York, upon the ground that that company had no franchise or right to do so, and that certain officials of the city, the commissioner of . highways . and the ¡deputy commissioner of highways of the borough of The Bronx, had illegally granted a permit for the laying of such-mains.' The Northern Union Gas Company was organized in 1897 under the Transportation Corporations Act for the purpose of manufactur- ' ing arid supplying gas and electricity to public and private buildings in the city of Hew York. The question arose in the case as to the power of the commissioners to issue the permit or grant the authority which was given' to the gas company. Upon a consideration "of the whole subject, it was determined by this court that the ' proper “ municipal authorities,” under the provisions of the Greater ‘ Hew York charter of -1897,^* to grant the consent were the department of public buildings, lighting and supplies and the department of highways and' not the municipal assembly of the ..city of Hew Yprk, .and we remarked in that case that “ it is difficult, to avoid the.conclusion that the municipal authorities ’ whose consent is. necessary for the laying- of gas mains in the streets are the department of public buildings, lighting and supplies and the department ■ of highways. This is an undoubted' departure from- the plan or '•-scheme under which the old government of the city was conducted, - for therein the local authorities to which reference is made in nearly all prior legislative acts were the municipal council or board of aldermen.” On appeal to the Court of Appeals our decision was reversed (158 N. Y. 510), and it was held that in the city, of New York, the “municipal authorities” within the meaning of that term as used in section 61 of the Transportation Corporations Law whose consent was required to lay conductors for conducting gas through the streets of the city were the municipal assembly. That determination of the Court of Appeals is announced as a general proposition, not confined to a pase arising under the provisions of the Greater New York charter, and the reasoning of the opinion is, in our judgment, decisive of the present case. Were it not for that, it might well be claimed that a franchise to; carry on the business of generating and supplying electricity, or of making, selling or leasing apparatus or other equipment, is granted directly from the State without any consent of the municipal authorities required by the statute; and that such consent, if so required, relates to the exercise administratively of a granted franchise to lay, erect and construct suitable wires or other conductors in, on, over or under the avenues, streets, public parks and places of the cities, towns or villages within this State ; or, in other words, that the authority was only that of an administrative authority as to the methods and manner in which particular things pertaining to the exercise of the franchise once granted should be done. But, in the Ghee case, the Court of Appeals has gone much farther, and has declared that a part of the franchise is the distinct specific right which the appellant claims as against the respondent and that that right was not complete and a franchise was not duly conferred until the municipality gave a supplementary consent to the general power which the appellant sought to acquire under its certificate of incorporation. If it be true that the right to the use of the streets is a part of the franchise of the appellant, then it results from the Ghee case that the bqard of aldermen was the legislative body having the power to grant a franchise '.to use the streets. In the case cited, it was held in effect that, previous to 1897, the board of aldermen of the city of New York, the legislative branch of the city government, was the body which had the power to confer franchises to use the streets. Therein it is said that “ the accumulation underground, during the past few years, of sewers, electrical subways, cable and electrical rail way conduits, pneumatic tubes, steam-heating,. water and gas pipes, seems", to indicate that, the day may come when there will be no more ■ unoccupied space beneath the surface, of the streets, and of this situation the Legislature and the learned commissioners who drafted the charter undoubtedly had full knowledge. It is difficult to believe that- with such knowledge they would attempt to take away from general and responsible representatives of the people, the power to grant such important and valuable rights and vest them in subordinate administrative officers,” etc. Those words are significant with respect, to the intent of the Legislature in passing the act of 1887, conferring powers on the board of electrical control, and, although nothing is definitely decided on that subject, the question is left fairly open for consideration when it is presented in a proper case.

'We'are unable to see that the language of the act of 1887 con-' fers upon the. board .of electrical control any different power than was conferred upon the department of buildings, lighting and supplies and the department of highways by the tiharter of 1897. The points decided in the Ghee case, in ■ a few, words,. are these: That the, right and power to use the streets under the provisions of the Transportation Corporations Law is part of a franchise; the consent of the municipal authorities is necessary to the full acquisition of that franchise; it can be given only by municipal authority and that municipal authority is the body legislating for the city. There are some inaccuracies in the opinion of the Court of Appeals in the Ghee case concerning the history of the granting of consents to gas companies to lay gas pipes and mains in the city of New York. The power to grant consents was not always -exercised by the com- • mon council of the city of New'York, but express, legislative authority was at one time given to a board to grant -such consents. In 1886 (Chap. 321, § 15) an act was passed to authorize the formation of gas companies in the city of New York and to regulate the powers and duties of the same. By section 15 it was provided that < - any company’ subject to this act - may lay its mains or pipes and supply its gas through the same' without any further proceedings, '■ conditions or authority than those herein contained, save the consent thereto of -the mayor, comptroller and president of the department of taxes and assessments of the city of New York.” The reference to this subject made in the opinion of the Court of Appeals proceeds upon a concession which was seemingly made by all the parties to that case. The inaccuracy is not material if we correctly apprehend the full force and effect of the opinion. In the light of that decision the provisions of the act of 1887 relating to the board of electrical control and the powers and duties conferred upon the local authorities in respect to or affecting the “ placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits or subways for electrical conductors in said city are hereby transferred to and conferred and imposed upon and shall hereafter be exclusively exercised and performed by the said board of electrical control,” do not relate to, granting a consent which in and of itself would operate as a completion of a franchise.

Notwithstanding the very elaborate and learned argument of the counsel for the appellant, we feel constrained by the authority of the Ghee case to affirm the judgment and order appealed from.

The judgment and order should' be affirmed, with costs.

O’Brien, P. J., and McLaughlin, J., concurred; Laughlin, J., concurred in result; Ingraham, J., dissented.

* See Laws .of 1890, chap. 566, § 163.— [Rep.

* Laws of 1897, chap. 378.— [Rep,

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Dissenting Opinion

Ingraham, J.

(dissenting upon appeal from order):

The relator was denied'its right to use ducts in the subway in the streets of the city of New York for its wires to furnish electricity for light to its customers upon the sole ground that it had not lawful power to operate electrical conductors in any street, avenue or highway in the city of New York, and the only question presented upon this appeal is whether the relator is so authorized.

The relator was duly organized on October 21, 1896, under the Transportation Corporations Law (Laws of 1890, chap. 566)1 Article 6 of that act applies to gas and electric light" corporations; section 60 of the statute, which is in said article, provides for the incorporation of the company, and subdivision 2 of section 61 of said act, which is in the same article, provides that every such corporation shall have the power “ if incorporated for the purpose of using electricity for light, heat or power, to carry on the business of lighting by electricity or using it for heai or power in cities, towns and villages within this State, and the streets, avenues, public parks and places thereof, and public and private buildings therein; and for the pur-. poses of such business to generate and supply electricity; * * * and to lay, erect and construct suitable wires or other conductors^ with the necessary poles, pipes or other fixtures in, on, over and under the streets, avenues, public.parks and places of such cities, towns or villages, for conducting and distributing electricity, with the consent of the municipal authorities thereof, and in such manner and under such reasonable regulations, as they may prescribe.”

The provisions of this section were taken from chapter' 512 of the Laws of 1879, section 2 of that act giving to any gaslight company organized Under chapter 37 of the Laws of 1848, and the acts' amendatory thereof, the authority to generate and supply electricity, with the power to lay, erect and Construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures, in, on, over and under the streets, avenues, public parks and places of the cities, towns or villages within this State, for conducting and distributing electricity, with the consent of the municipal authorities thereof, and under such reasonable regulationsas they may prescribe. The 1st section of this latter act was amended by chapter 73 of the Laws of 1882.

Upon the incorporatión of the relator it thus became vested with a franchise to lay, erect and construct suitable wires, or other conductors, with the necessary poles, pipes or other fixtures in, on, over and under the streets, avenues, public parks and places of the city of New York for conducting and distributing electricity when the consent of the municipal authorities of that city ,was obtained. I think it must be conceded that, the' Legislature having power to grant this franchise absolutely, without the consent of ..the municipal authorities, had power to impose a condition requiring the consent of the municipal authorities • of the city of New York before the franchise should be exercised, and having power to thus impose a condition, it could designate the officers who should give that consent. Whether, we call this conferring a franchise, or a condition required by the sovereign power before the franchise should be used, it- was for the Legislature to say what officer or board of the municipality should be required to give his or its consent before the grant of the franchise became operative. The statute requires the consent of the municipal authorities, and this, without other legislation, would undoubtedly require the municipality to act through its legislative body by a resolution of the board of aldermen, but the Legislature had also the power at any time to modify this provision and grant the franchise without condition or to designate some other officer or board as the- authority upon whose consent this franchise or right to use the streets of the city'would become operative.

The claim - of the relator is that section 1 of chapter 716 of the .Laws of 1887 (as amd. by Laws of 1890, chap. 550), which was extended by chapter 383 of the Laws of 1891/ chapter 263 of the Laws of 1892, chapter 396 of the Laws of 1893, and chapter 207 of the Laws of 1894, .vested the power to give the consent required by section 2.of chapter 512 of thd Laws of 1879, or by subdivision 2 of section 61 of the Transportation Corporations Law, in the board of electrical control, and that that board having given its consent in October, 1896, to the -relator’s using the streets of the city of New York, the condition imposed by subdivision 2 of section 61 of the Transportation Corporations Law was complied with, and it became a corporation having lawful power to operate electrical -conductors in the streets, avenues or highways in the city of New York. Prior to the passage of this act of 1887, gas companies organized under the general law, whose right to do business was also subject to tbe consent of the municipal authorities, had, by section 15 of chapter 321 of the Laws of 1386, to obtain the consent, not of the board of aldermen, but of the mayor, comptroller and president of the department of taxes and assessments of the city of New York, but the consent of the board of aldermen was required before a corporation organized under the general act could use the streets for supplying electricity. Prior to the year 1887 the condition in the streets of the city of New York, in consequence of the overhead wires used by the telegraph, telephone and electric light companies, had become the subject of complaint, and for some years attempts had been made to compel the companies using the streets for such" purposes to place their wires under ground. The first attempt seems to have been the enactment of chapter 534 of the Laws of 1884. This act directed the corporations, associations or individuals so using the streets in cities having a population of 500,000 or over to remove the overhead wires before the 1st of November, 1885, and if the provisions of the act were -not complied with in the time therein specified and limited, imposed a duty upon the local governments ” of said cities to cause the wires to he removed. By chapter 499 of the Laws of 1885 aboard of commissioners of electrical subways,in cities having • a population exceeding 500^000. was directed to be'appointed, and . was charged with the enforcement of the act of 18.84 and the act of 1885. This act was amended by chapter 503‘of the Laws of 1886. The- hoard of commissioners of electrical subways of the. city of New York.appointed under these acts made certain , contracts with a corporation known as the Consolidated Telegraph and Electrical Subway Company, dated July. 27, 1886, and April 7, 1887, but it' ~ had been held that the board had no power to make vthese contracts. Whereupon the Legislature,/ by "chapter .716 bf the Laws of 1887, constituted said board, together with the mayor of the city, for the time being, the board of electrical control in and for said city, imposed upon it the duty of enforcing the directions of the Legislature as to placing these electrical wires under ground and ratified the contracts made, with the Consolidated Telegraph and Electrical ' Subway Company.'

The 1st section of that act provides that “ From and after the passage of this act and until the first day of November, eighteen hundred and ninety, the board of commissioners of electrical subways in and fob the- city and county, of New York, heretofore appointed under authority of the act,, chapter four hundred and ninety-nine of the laws of eighteen hundred and eighty-five, together with the mayor of said, city for the time being, are hereby constituted the board of electrical control in -and for the city of New York. * * * All the powers and duties conferred or imposed by the said act, chapter' four hundred and ninety-nine -of the laws of eighteen hundred and eighty-five^ upon the commissioners appointed thereunder in and for the city of New York, and all the powers and duties, heretofore by any law-conferred or imposed upon the local authorities of said city, or any of them, ‘in respect to or affecting the placing, erecting, ■construction, suspension, maintenance, use,, regulation or control of electrical conductors or conduits or stibwaysffor electrical conductors in said city are hereby transferred to and conferred and imposed upoti, and shall hereafter be - exclusively exercised and performed by the said, board of electrical control, constituted as provided iii this act, and its successors as hereinafter provided.” The section was re-enacted without change by chapter 550 of the Laws of 1890, except that the time limit was extended until ¡November 1, 1891. Section 3 of the act of 1887 provides that whenever, in the opinion of the board, in any street or locality of the city a sufficient construction of conduits or subways under ground shall be made ready under the provisions of the act, the said board shall notify the owners or operators of the electrical conductors above ground in such street or locality to -malee such elec- • trical connections in said street, or through other streets, localities or parts of the city with such underground conduits or subways, and to remove the poles,, wires or other electrical conductors above ground; and that the commissioner of public works shall, upon the written order of the mayor, cause the same to be removed in case the", owners or operators of such wires, poles, fixtures or devices shall not cause them to be removed from the streets or localities. Section 4 provides that it shall be unlawful after the passage of the act for any corporation 'or individual to take up a pavement of the streets of the city of New York 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 predecessor, and further provides: “The said board of electrical control may establish, and from time to timé 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.” Section 5 provides that “ from and after the first day of November, eighteen hundred and ninety, all rights, powers and duties vested or existing in the said board of electrical control by this act created, or in the board of commissioners of electrical subways, heretofore existing in said city, shall vest in and shall thereafter be held and exercised by the commissioners of the sinking fund in the city of New York.” And section 9 provides that “ all acts and parts of acts inconsistent with this act are hereby repealed.”

It must be plain from a study of this act that it was the board of electrical control that was to have the absolute control over all electrical conductors, either under or above the streets in the city of Hew Yolk. Under the provisions of section 4 no corporation after the passage of the act could excavate in the streets of the city of Hew York for the' purpose of laying underground an electrical conductor, or continue, construct, erect or maintain any. electrical conductors, etc., above the ground, unless a permit in writing therefor was first obtained from said, board or its predecessor.' The consent of the board was necessary before any corporation could use a franchise conferred under chapter 512 of the Laws of 1879, as. amended by chapter 73 of the Laws of 1882; and. this board was further authorized, by section 4 of the act under consideration, from time to time to make, 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 th¿ act or of any act therein mentioned. It was the clear intention of the Legislature by this act to vest in this board, so long as it should continue in existence, absolute and complete control over all electrical conductors in use in the city of Hew York; and taking sections 1 and 4 together, it seerps to me to have been the evident intent to vest in the board the power to say what corporation or - individual should exercise within the city of Hew York the right or franchise to operate ■ or maintain electrical conductors in the streets of the .city.

Consider the authority conferred upon the board by section 1 of the act-. All the powers and duties conferred or imposed upon the commissioners appointed under the act of 1885, and “ all the powers and duties heretofore by any law Conferred, or imposed upon the local, authorities of said city, or any of them, in respect to or affecting the placing,, erecting, construction, suspension, maintenance, use, regulation -or control of electrical conductors or conduits or subways for electrical conductors in said city are hereby transferred to and , conferred and imposed upon, and shall hereafter be exclusively exercised and performed by the said board of electrical control; consti-i tilted as provided in this act, and its successors as hereinafter provided.” Undoubtedly the hoard of aldermen, who prior, to that time had the- power to consent to the use of the streets by a corporation organized to furnish electricity in the city of Hew York, were the local authorities of the city, and under section 2 of chapter 512 of the Laws of 1879 had power to give the consent of the municipal authorities to a corporation authorized under the act (as amd. supra), to lay, erect, and construct suitable wires or other conductors in, on, over and under the streets, avenues, public parks and places of such . city for conducting and distributing electricity. By the express terms of section 1 of the act of 1887 there was conferred and imposed upon the board of electrical control, to be thereafter exclusively exercised and performed by that board, all the powers and duties theretofore by any law conferred or imposed upon the local authorities. If the board of aldermen at the time of the passage of this act was a local authority of the city of New York, and if the power conferred upon it to consent to the use of the streets of said city by a corporation authorized under chapter 512 of the Laws of 1879 (as amd. supra), to use the streets of said city, was in respect to the placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits or subways for electrical conductors in said city, then that power was transferred to and conferred and imposed upon the board of electrical control, and thereafter was to be exclusively exercised and -performed by it. It seems to me that the power to consent to a corporation using the streets for that purpose was conferred upon the board of electrical control.

This board of electrical control was continued in existence by various acts of the Legislature up to and beyond the year 1896, arid during that year continued to exercise all the powers and authority conferred upon it by the act of 1887. . (See Laws of 1890, chap. ■ 550; Laws of 1891, chap. 383; Laws of 1892, chap. 263; Laws of 1893, chap. 396; Laws of 1894, chap. 207; Laws of 1897, chap_ 710 ; Laws of 1897, chap. 378, §§ 588, 1611.) In the year 1890 the Transportation Corporations Law was passed, to take effect on May 1,1891 (Laws of 1890, chap. 566, § 163), and there was incorporated in subdivision 2 of section 61 of that act substantially the same provisions that were contained in section 2 of chapter 512 of the Laws of 1879. The relator having been incorporated under the Transportation Corporations Law, ^was required to obtain the consent of the municipal authorities before it was authorized to use the streets of the city óf New York; but those municipal authorities were, I think, the authorities upon whom the act of 1887 had conferred this power to consent under the provisions of the act of 1879 ; and upon their consent being obtained, the relator was lawfully authorized to use the subways constructed in .the city of, New York.

It is said,, however, that the decision of the Court of Appeals in Ghee v. Northern Union Gas Co. (158 N. Y. 510) is a controlling authority upon' this question,, and that under it we are bound to hold that the municipal authorities Whose consent was required ‘ under subdivision 2 of section 61 of the Transporatipn Corporations Law were the board of aldermen; but it seems to me. that in that case an entirely different question was presented,, which had no relation to the act of 1887 or. the' authority conferred thereby upon the ■ board of electrical' control. The question. in that'case arose under the charter of 1897 (Laws of 1897, chap. 378), and the question certified to the Court of Appeals was: “Are the municipal authorities of the city of New-York, whose consent is required to lay conductors for conducting gas through the streets of such city,, under the Transportation Corporations Law,, the head ,of the department of public buildings, lighting and supplies, and the head of the department of highways, under the powers conferred by the charter of the city of New York, Or are the municipal authorities ’ referred to in the said Transportation 'Corporations Law. the municipal assembly, or' any. other officer or body in the city of New York ? ” The charter of 1897 united under one munidipal government the cities of New York and Brooklyn and other territory, creating a new city of New : York. It provided for a municipal assembly, giving to it broad legislative powers and created heads of the departments upon whom ■ were imposed administrative duties ; and .the question there was whether, under the charter, the power to consent was vested in the ' legislative body or in one of the administrative departments of the city of New York. Section 573 of the charter gave to the commissioner of the department -of public buildings-, lighting and supplies cognizance and control of the making, and performance of , contracts in the matter of furnishing the city, or any part thereof, with gas,. electricity or any other illtiminant, and of the use and transmission of gas, electricity, pneumatic power and steam for all "purposes in, upón, across, over and under all streets, avenues, etc., and of theconstruction of electric mains, conduits, conductors and subways in any such streets, etc., and the granting of the permission to open streets, when approved by the department of highways; section 524 of the charter provided that the commissioner of highways should have cognizance and control of regulating, grading, curbing, flagging and glittering of streets and laying of crosswalks; and section 525 thereof provided that no removal of the pavement or disturbance of the surface of any street for the purpose of constructing vaults or lateral ways,- digging cellars, laying foundations of buildings or other structures, making sewer connections, or repairing sewers or pipes, of laying down gas and water pipes, steam pipes and electric wires, or introducing the same into buildings, or for any purpose whatever, shall be made until a permit is first had from the department of highways. The conclusion of the Court of Appeals was based entirely upon the general provisions of the charter; and considering the clauses giving all legislative power, which included the granting of all franchises for lighting by gas or electricity, or for tramways, or for other purposes, to the municipal assembly, the court determined that under the charter the municipal assembly were the local authorities whose consent was necessary under section 61 of the Transportation Corporations .Law. What was given to these administrative officers by the charter was “ cognizance and control.” It was held that these words had been used for a period of thirty-five years before the New York charter of 1897, “ to describe a power' strictly limited to the regulation of existing rights, and they cannot now be given an entirely different meaning from that in which they were used in the previous statutes referred to and relied upon, to some considerable extent, by the draftsmen of the present charter, in order to imply a power in these administrative officers, which otherwise, as we have seen, was properly vested in the Municipal assembly. Examining the provisions of this charter bearing upon this subject, as we have, in the light of previous legislation, to which reference has been made, we have had no difficulty in reaching the conclusion that the consent that is necessary to confer a franchise upon a gas lighting corporation, can be given only by the municipal assembly through appropriate ordinances, but that when the consent has been granted to a corporation duly created, by which a corporate franchise, which ,'is property, has been acquired, the administrative officers must be applied to- íor a permit that will allow the corporation to exercise such rights in order that the public convenience may be subserved.”

It seems to me that a determination of a question as between the municipal assembly ¡and a strictly administrative officer, in considering the construction' to be given .to the provisions of the charter of

My conclusion is that thé relator was entitled to. the mandamus asked for, and that the order "appealed from should be reversed and the mandamus granted. ' , -

Judgment and order affirmed, with costs.