Econ. Power & Constr. Co. v. City of Buffalo

• Decision Date: 04 May 1909
• Citation: 195 N.Y. 286,88 N.E. 389
• Parties: ECONOMIC POWER & CONSTRUCTION CO. v. CITY OF BUFFALO et al.
• Court: New York Court of Appeals Court of Appeals

195 N.Y. 286

88 N.E. 389

ECONOMIC POWER & CONSTRUCTION CO.

v.CITY OF BUFFALO et al.

Court of Appeals of New York.

May 4, 1909.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the Economic Power & Construction Company against the City of Buffalo and others. From a judgment of the Appellate Term (128 App. Div. 883,112 N. Y. Supp. 1127), affirming a judgment of the Special Term (59 Misc. Rep. 571,111 N. Y. Supp. 443) in favor of respondent, defendants appeal. Reversed, and complaint dismissed.

An act was passed by the Legislature of the state of New York in 1893, and approved by the Governor April 22, 1893, with the following title: ‘An act to incorporate the Economic Power & Construction Company.’ It is chapter 459, p. 949, Laws 1893, and section 1 provides that certain persons named therein, ‘and their associates, successors and assigns, are hereby created a body corporate and politic by the name of the Economic Power & Construction Company and by that name shall have perpetual succession and may sue and be sued in any court. The general purpose of such corporation shall be and it is hereby authorized and empowered, to do each, any, and every thing necessary not inconsistent with the laws of the state for the creation, transmission and utilization of power at or between any points selected from time to time within this state for any purpose whatsoever except as hereinafter specified and to make such charges therefor as it may agree by public or private contract.’ It provides also where the principal place of business of the company shall be located and also as to the acts of the incorporators prior to and including the adoption of the by-laws of the corporation. Section 2 provides the amount of its capital stock, how the same may be increased, and for the transfer thereof, and also for borrowing money and securing the payment thereof. Section 3 provides for the election of directors, and prescribes their powers and duties. It provides for filling vacancies in the board and for the appointment and election of officers. Section 4 provides for the number of votes which each stockholder shall have, and for issuing the capital stock.

Sections 5 and 6 are as follows:

‘Sec. 5. The said corporation is hereby empowered without other or further authority, of law or ordinance, to do any or all of the following: To build, purchase or lease engines, power stations, and such machinery and to do such other acts as may be necessary for the purposes of the corporation, and to locate, construct, maintain and operate a tube or tubes for the utilization and transmission of the power to be furnished and supplied by said corporation, and for any, either or all of said purposes said corporation may enter upon and use the ground or soil under any street, avenue, public place or premises or use the structures upon any street, avenue or public place, or use the ground or soil upon or under any highway, turnpike or road and such corporation shall have the right, and it is hereby empowered to enter upon and take possession of such real property or such right, title, interest or easement therein as may be necessary or convenient to accomplish the purposes for which this charter is given or in the exercise of the powers herein conferred, which are hereby expressly declared to be a public purpose and their use by said corporation a public use. All such real property or right, title, interest or easement therein shall be purchased of the owner or owners at a price to be mutually agreed upon, or the said corporation shall have the right to acquire the same by condemnation proceedings, as provided by chapter twenty-three, title one of the Code of Civil Procedure of the state of New York, and acts amendatory thereof, or supplemental thereto.

‘Sec. 6. Said corporation shall have the right and authority to lease or sell the whole or any part of its corporate property or franchises from time to time to any other corporation organized under the laws of this state by and with the approval of the votes of two-thirds of the board of directors of the corporation hereby created.’

Section 7 provides that the corporation shall, in addition to the powers granted, ‘possess the general powers and privileges granted to corporations by and contained in the general corporation law, and the stock corporation law.’ Section 8 provides in regard to the individual liability of the stockholders. Section 9 provides certain limitations upon the maintenance of actions against stockholders. Section 10 provides what shall be stated in the required annual reports of the corporation

Sections 11 and 12 are as follows:

‘Sec. 11. Nothing in this act shall be construed to permit such corporation to do a passenger or railway business nor to lay down railroad tracks, and said corporation shall not be permitted to transmit or deliver mails, newspapers or parcels.

‘Sec. 12. This act shall take effect immediately.’

The plaintiff asserts, and it has been found by the court in substance, that after the passage of said act it perfected its organization, and that it has ever since been, and now is, a corporation with the powers therein described. In Junuary, 1907, it filed with the commissioner of public works in the city of Buffalo a written statement of its intention to lay steam mains in trenches in certain streets in the city of Buffalo for the transmission of steam power for heating purposes in residences, places of business, manufacturing establishments, and other buildings generally in said city, and in the same trenches to lay conduits for the transmission of electrical power for general lighting and power purposes, to be generated by the same steam so to be used for heating purposes, and in connection therewith it filed plans and specifications of its proposed trenches, steam power mains, and electric power conduits. Thereafter said commissioner submitted to the common council of said city said statement, plans, and specifications, but no action has been taken thereon by said commissioner or by said common council. Subsequently, and in September, 1907, the plaintiff sent a further communication to the said commissioner of public works, and also to said common council, stating, in substance, that it was its intention to enter upon the streets of said city and begin the construction of its trenches and conduits at a time in said notice specified. The court found that the plans and specifications proposed by the plaintiff were in all respects proper, reasonable, and adequate for the protection of said city, its citizens, and streets. The plaintiff began the work of excavation as stated in said notice, but was prevented from continuing the same by the defendants. This action was then brought to restrain the defendants from in any way interfering with the plaintiff, its officers and contractors, in the work of excavating trenches in the streets of said city and laying and constructing its steam mains and electric conduits, and other necessary structures connected therewith, in the manner proposed by it in its said communication to the commissioner of public works of said city. Judgment was rendered at Special Term in favor of the plaintiff. An appeal was taken to the Appellate Division, where the judgment was affirmed by a divided court. From such judgment of affirmance the appeal is taken to this court.John W. Ryan, for appellants.

D. Cady Herrick and Simon Fleischmann, for respondent.

CHASE, J. (after stating the facts as above).

The appellants contend that the act of the Legislature under which the plaintiff claims to have been incorporated is in violation of article 3, § 16, of the Constitution of the state of New York, which provides as follows: ‘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.’ Our first inquiry is whether the act in question is a private bill. Blackstone, in his Commentaries (Introduction, section 3), says: ‘Statutes are either general or special, public or private. A general or public act is an universal rule that regards a whole community; and of this the courts of law are bound to take notice judicially or ex officio. * * * Special or private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns, such as the Romans entitled ‘senatus decreta,’ in contradistinction to the ‘senatus consulta,’ which regarded the whole community. * * * Thus to show the distinction the statute (St. 13 Eliz. c. 10), to prevent spiritual persons from making leases for longer terms than 21 years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation; but an act to enable the Bishop of Chester to make a lease to A. B. for 60 years is an exception to this rule. It concerns only the parties, and the bishop's successors, and is therefore a private act.' Kent in his Commentaries (volume 1, p. 459) referring to public and private statutes, says: ‘The most comprehensive, if not the most precise, definition in the English books is that public acts relate to the kingdom at large, and private acts to certain individuals, or to particular classes of men. Generally speaking, statutes are public; and a private statute may rather be considered as an exception to a general rule. It operates upon a particular thing or private persons.’

In the celebrated case of Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 561, 4 L. Ed. 629, Justice Story, referring to the grant from George III to John Wentworth and others, by which the corporation known as ‘The Trustees of Dartmouth College’ was formed, and in discussing the distinction between public and private corporations, says: ‘Public corporations are generally esteemed such as exist for public, politic purposes only, such as towns, cities, parishes, and counties, and in many...