Astor v. New York A. Ry. Co.

• Citation: 20 N.E. 594,113 N.Y. 93
• Parties: ASTOR et al. v. NEW YORK A. RY. CO. BAILEY et al, v. Same.
• Decision Date: 12 March 1889
• Court: New York Court of Appeals

113 N.Y. 93

20 N.E. 594

ASTOR et al.

v.NEW YORK A. RY. CO.

BAILEY et al,

v.Same.

Court of Appeals of New York

March 12, 1889.

OPINION TEXT STARTS HEREAppeal from Supreme Court, general term, First department.

Actions by John Jacob Astor and others, and Nathaniel P. Bailey and others, against the New York Arcade Railway Company, to enjoin the construction of an underground railroad. A demurrer to the complaint was sustained at special term. At general term this ruling was reversed, and defendant appeals.

Edward B. Thomas, Delos McCurdy, Charles P. Daly, and James C. Carter, for appellant.

Henry H. Man, Joseph S. Auerbach, Noah Davis, and John F. Dillon, for respondents.

EARL, J.

The sole question for our determination is whether the defendant has legal authority to construct and operate a railway under Broadway and Madison avenue in the city of New York.

The defendant traces its corporate existence to the act (chapter 842, Laws 1868) entitled “An act to provide for the transmission of letters, packages, and merchandise in the cities of New York and Brooklyn, and across the North and East rivers, by means of pneumatic tubes, to be constructed beneath the surface of the streets and public places in said cities, and under the waters of said rivers.” The first section of the act authorized and empowered Alfred E. Beach and other persons named and their assigns “to lay down, construct, and maintain one or more pneumatic tubes in the soil beneath the surface, squares, avenues, and public places in the cities of New York and Brooklyn, and under the bed of the waters of the East river between said cities, and also under the bed of the waters of the North River from the city of New York to the shore of New Jersey, but at such depth as not to interfere with navigation; and to convey letters, parcels, packages, mails, merchandise, and property in and through said tubes for compensation by means of vehicles to be run and operated therein by the pneumatic system of propulsion; and to the end that the public convenience may be promoted in the operation of the said vehicles, the said persons and their assigns are also hereby authorized and required to erect upon the sidewalks of the said streets, squares, avenues, and public places suitable ornamental lamp-posts, boxes, pillars, or receptacles, not exceeding thirty inches in diameter, connected with said pneumatic tubes for the deposit of letters, packages, and property to be transmitted therein;” and it provided that the tubes should not extend through any vault, nor under any sidewalk fronting on private property, without the consent of the owners of such private property, and compensation to them, which should be ascertained and determined, in case the parties could not agree, in the manner provided by the general railroad act of 1850. Section 2 provided that the pneumatic tubes should be so constructed as to have a mean interior diameter of not exceeding 54 inches. Section 5 authorized the persons named in the act to hold a meeting, and determine the terms and conditions upon which the powers, privileges, and franchises conferred by the act might be transferred to a corporation to be organized as provided in the next section; and section 6 provided that, in case the persons attending the meeting named in the prior section should so determine, they might organize themselves into a corporation in the manner specified in the general manufacturing act of 1848, and the acts amendatory thereof, “for the purpose of constructing and maintaining the pneumatic tubes aforesaid, and using and operating the same as hereinbefore authorized;” and that the corporation so organized shall “possess all the powers and privileges conferred by said acts, and be subject to all the duties and obligations imposed therein, not inconsistent with the provisions of this act.”

In August, 1868, in pursuance of the powers conferred by the act, the persons therein named organized themselves into a corporation by the name of “The Beach Pneumatic Transit Company;” and in the certificate executed and filed by them they declared that the object of the corporation was “to construct and operate pneumatic railroads in the cities of New York and Brooklyn, and under the waters of the North and East rivers, and to exercise all the powers, privileges, and franchises conferred upon said corporation by the act” of 1868; that the capital stock should be $5,000,000; and that the corporation should continue in existence for the term of 50 years. The certificate could give the corporation no greater powers than was conferred by the act of 1868, and to that act we must look for the scope and measure of its powers. The act did not confer railroad powers upon the corporation, and did not subject it to any of the railroad acts, except for the purpose of ascertaining the compensation to be paid to the owners of property interests in the streets. It authorized the formation of a manufacturing corporation with the incidents, powers, and duties of such a corporation, so far as they were consistent with the purposes of the act. The corporation formed was in fact a manufacturing corporation, not however with the general power to engage in any manufacturing business, but for the sole purpose of constructing, maintaining, using, and operating the pneumatic tubes. The formation of such a corporation was a matter fairly embraced within the title of the act. It was an appropriate instrumentality to accomplish the purposes of the act, and in no sense a new and independent subject. The legislature, having authorized the construction and operation of the pneumatic tubes, could in the act itself have created the corporation, or could have authorized its organization under any of the general laws of the state adapted to the formation of any business corporation; and the formation of such a corporation would be germane to the main purpose of the act, as indicated by its title. While the general manufacturing laws regulated the corporation as to its mode of existence, its manner of action, and its corporate life and being generally, yet all its powers and duties related and were confined to the construction, maintenance, use, and operation of the pneumatic tubes; and therefore section 16 of article 3 of the constitution, which provides that “no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title,” was not, as contended on behalf of the plaintiffs, violated.

What do the words “pneumatic tubes” mean? They convey to our minds no other meaning than that of tubes for the transmission of parcels operated by atmospheric pressure applied within the tubes. The parcels may be transmitted outside the tubes, upon vehicles attached to a piston operated within the tubes by atmospheric pressure, or they may be transmitted within the tubes by atmospheric pressure applied behind them. But they are in no sense railways. Such a tube may contain vehicles placed upon wheels, and the wheels may run upon rails or in grooves, and yet the structure could not, according to the popular sense, or any legal sense, be what is generally known as a railway. The tubes may be so constructed that in a technical or scientific sense the structure might be called a railway; and so, too, any structure upon which vehicles may be moved upon rails, however peculiar or small, may in some limited sense be called a railway, and yet it may not be a railway within the meaning of the constitution and the general laws of the state. When they speak of railways they always mean railways either for the general carriage of property or of passengers or of both; and a railway which may operated in small pneumatic tubes by atmospheric pressure for the transmission of small packages is not within such meaning. Such was the character and status of the corporation organized under the act of 1868. That act was amended by the act (chapter 512 of the Laws of 1869,) entitled “An act supplementary to chapter 842 of the Laws of 1868, in relation to carrying letters, packages, and merchandise by means of pneumatic tubes in New York and Brooklyn;” but there is nothing in that act pertinent to the present discussion.

From 1868 to the commencement of this action, in 1886, so far as this record discloses, nothing whatever was done by the corporation except to change its name several times, and to procure acts of the legislature purporting to enlarge its powers and extend its corporate life. No pneumatic tubes have been constructed, and it is a fair inference from the admitted facts that the system for the pneumatic transmission of property was before the year 1873 found to be impracticable. It had been tried in various parts of Europe, but had proved a failure, and for the general transmission of property or passengers was in the year 1873 nowhere in use. Chambers, Cyclop, tits. “Atmospheric Railway” and “Pneumatic Dispatch;” Cyclop. Britannica, tit. “Atmospheric Railway;” Appleton, Cyclop. tit. “Atmospheric Railway;” Johnston, Cyclop. tit. “Pneumatic Transmission.” In 1873 the persons interested in the corporation, as we may infer, being aware of its sufficiency for any practical purpose, concluded to procure an enlargement of its powers, and a radical change in its character and purposes, and therefore they obtained the passage of the act, (chapter 185,) entitled “An act supplemental to and amendatory of chapter 842 of the Laws of 1868, an act entitled ‘An act to provide for the transmission of letters, packages, and merchandise in the cities of New York and Brooklyn, and across the North and East rivers, by means of pneumatic tubes, to be constructed beneath the surface of the streets, squares, avenues, and public places in said cities, and under the waters of said rivers,’ passed June 1, 1868; and of chapter 512 of the Laws of 1869 entitled ‘An act supplementary to chapter 842 of the Laws of 1868, in relation to carrying...