Beekman v. Third Ave. R. Co.

• Decision Date: 08 June 1897
• Citation: 47 N.E. 277,153 N.Y. 144
• Parties: BEEKMAN et al. v. THIRD AVE. R. CO.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 144

47 N.E. 277

BEEKMAN et al.

v.THIRD AVE. R. CO.

Court of Appeals of New York.

June 8, 1897.

Appeal from supreme court, appellate division, First department.

Action by Catharine L. Beekman and others against the Third Avenue Railroad Company. From a judgment of the supreme court, appellate division (43 N. Y. Supp. 174), affirming a judgment of the trial court, defendant appeals. Affirmed.

William H. Page, Jr., Francis M. Scott, and William C. Trull, for appellant.

Elihu Root, William F. Sheehan, and David B. Hill, for respondents.

O'BRIEN, J.

The plaintiffs, as property owners, brought this action against the defendant to perpetually restrain the construction of a street railroad, as a branch or extension of its system, upon that part of Broadway near 182d street, in the city of New York, known as the ‘Kingsbridge Road,’ at the point where the plaintiffs' property intersects the highway. The action is based wholly upon the allegation that the consent of the city authorities and the sale of the right to use the street for railroad purposes, under which the defendant claims, did not comply with the statute, and are invalid. This is an appeal from an order of the appellate division which sustained an injunction pendente lite, granted in the action, and at the same time allowed an appeal to this court from the order; and the court has certified the following questions to us, pursuant to section 9 of article 6 of the constitution, and section 190 of the Code: ‘(1) Whether the common council of the city of New York can, under the provisions of section 93 of the railroad law, make a valid sale of more than one extension of an existing railroad at the same sale, to be struck off upon one bid, when the said extensions are separated from each other in such a way that they can only be operated together over the lines of the said existing railroad. (2) If the common council has no power to make such sale, did a sale made in that way vest the right to build any of the extensions mentioned in the complaint in this action in the Third Avenue Railroad Company? (3) Has the common council the power to impose, as a condition upon which its consent shall be given to the sale of an extension or extensions of an existing railroad, that such railroad, if a purchaser, should pay into the city treasury a sum of money in cash within a certain time after the right to build the extensions has been struck off to it, in addition to the percentage of gross receipts bid by it upon such sale? (4) If the common council had no power to impose such a condition, was the sale of said extensions subject to such condition valid, and did it vest in the Third Avenue Railroad the right to build such extensions? (5) Is a condition in the resolutions authorizing the sale, that ‘no passenger shall be charged more than five cents for a continuous ride from or to the above branch or extension,’ which resolutions contain a separate provision that ‘all laws or ordinances now in force, or which may be modified or adopted, affecting the surface railroads operating in this city shall be strictly complied with, and especially article 4 of the general railroad law,’ a compliance with that portion of section 93 of the statute which directs that but one fare shall be exacted for passage over such branch or extension, and over the line of the railroad which shall have applied therefor? (6) If the foregoing condition is not a compliance with that portion of the statute, is the sale of the extensions pursuant to resolutions which make no other provision for the charging of a continuous fare over the extensions and the line of the road valid, and did the sale made under said resolutions vest in the Third Avenue Railroad the right to build the extensions?'

In July, 1895, the defendant presented to the common council of the city of New York a petition praying that consent might be granted for the construction of a branch or extension of its street-railroad system from a designated point in the upper portion of the city, on the line of the existing road, through certain streets and avenues which are named, for a distance of about 11 miles to Yonkers. The conditions and stipulations by which the defendant consented to be bound in case the right was granted are fully set forth in the petition, and will be referred to hereafter, so far as they are material to the questions under consideration. The application of the defendant was granted by resolution of the common council, which provided for a sale of the right, at public auction, to the railroad corporation that would agree to pay into the city treasury the largest percentage of its gross receipts per annum. This sale was made in November, 1895, pursuant to notice, and the defendant was the successful bidder, and, acting upon the assumption that it had acquired the right, was proceeding to construct the road when it was restrained by the injunction in this action.

It will be seen that the questions certified lie at the very foundation of the action, and really determine, in advance of the final judgment, the whole controversy between the parties. Such questions formerly were not reviewable in this court upon an appeal from a preliminary injunction order, but only after final judgment in the action. The general rule was that when the supreme court had exercised its discretion upon the facts, and awarded an injunction pending the action, the only question that this court could review was the power or jurisdiction of the court to make the order, and this depended upon the sufficiency of the complaint. If a cause of action was stated which in equity entitled the plaintiff to relief by way of perpetual injunction, the preliminary order was in the discretion of the court and not open to review here. Upon appeal from such an order, this court would not interfere except in a case where, upon the face of the complaint, the plaintiff, upon the facts stated, under settled adjudications, was not entitled to final relief. Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 121 N. Y. 397, 24 N. E. 832;Castoriano v. Dupe, 145 N. Y. 250, 39 N. E. 1065. But the constitution and the statute have evidently conferred power upon the supreme court to send here for review questions that were not reviewable before. The questions, however, must be questions of law, and not questions of fact, or matters resting in discretion; and the legal effect of the certificate is, we think, that, in passing upon the facts and exercising its discretion, the court below was obliged to pass upon and decide the questions of law stated, or that they necessarily arose and were involved in the decision of the appeal from the order which granted the injunction, and were of sufficient importance to require the opinion of this court.

The authority to make use of the public streets of a city for railroad purposes primarily resides in the state, and is a part of the sovereign power; and the right or privilege of constructing and operating railroads in the streets, which, for convenience, is called a ‘franchise,’ must always proceed from that source, whatever may be the agencies through which it is conferred. The use or occupation of the streets for such purposes, without the grant or permission of the state through the legislature, constitutes a nuisance, which may be restrained by individuals injuriously affected thereby. Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 307. The city authorities have no power to grant the right except in so far as they may be authorized by the legislature, and then only in the manner and upon the conditions prescribed by the statute. Davis v. Mayor, etc., 14 N. Y. 506;Milhau v. Sharp, 27 N. Y. 611; People v. Kerr, Id. 188. The power of the legislature to authorize the grant of such a franchise by local authority is limited by the constitution, and forbidden, except in cases where the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of the street or highway upon which it is proposed to construct or operate such railroad, be first obtained. Article 3, § 18. The legislature, however, in virtue of its general power over municipalities, may regulate the mode and manner in which such consent shall be given by the authorities having the control of the street, and may prescribe the conditions upon which it may be given, and all these matters have been regulated by statute. Laws 1892, cc. 306, 676; Laws 1893, c. 434.¹ The questions certified to us by the court below call for a construction of this statute or certain important provisions thereof, which affect the validity of the franchise granted to the defendant. In conferring the franchise upon the defendant to operate a railroad in the streets designated, the common council did not act in the exercise of any natural or inherent power pertaining to the city, but under delegated powers, to be used and exercised for public purposes; and, in order to vest the defendant with the right claimed, it must appear that there was a substantial compliance with the provisions of the statute.

The first and most important question is whether the common council has the power to make a valid sale of the franchise for more than one branch or extension of an existing railroad at the same sale and under the same bid; or, in other words, does the statute contemplate that consent may be given to the construction of two or more branches or extensions of an existing railroad in one official act, and the franchises sold together as one upon the same bid? The statute limits the bidders at any sale of a franchise at auction to railroad corporations authorized to construct and operate a street railroad in the city, and, in prescribing that the consent of the city, when given, must be upon the condition that the franchise for construction of a road or a branch or extension of one existing in...