Harper v. City of Kingston

• Decision Date: 01 July 1959
• Citation: 188 N.Y.S.2d 577,17 Misc.2d 627
• Parties: James W. HARPER, 62 Hurley Avenue, Kingston, New York, as a taxpayer of the City of Kingston, New York, Plaintiff, v. The CITY OF KINGSTON, New York, Kingston Cablevision, Inc., a corporation organized and existing under the Laws of the State of New York with an office for the transaction of business at 5-7-9 Main Street, Kingston, New York, and Arthur Hallinan as City Engineer of the City of Kingston, New York, Defendants.
• Court: New York Supreme Court

Page 577

188 N.Y.S.2d 577

17 Misc.2d 627

James W. HARPER, 62 Hurley Avenue, Kingston, New York, as a taxpayer of the City of Kingston, New York, Plaintiff, v. The CITY OF KINGSTON, New York, Kingston Cablevision, Inc.,

a corporation organized and existing under the Laws of the

State of New York with an office for the transaction of

business at 5-7-9 Main Street, Kingston, New York, and

Arthur Hallinan as City Engineer of the City of Kingston,

New York, Defendants.

Supreme Court, Special Term, Albany County.

July 1, 1959.

Arthur B. Ewig, Kingston (George A. Beck, Kingston, on the brief), for plaintiff and for petitioner for intervention.

Abraham Streifer, Kingston, for defendant Kingston Cablevision, Inc.

William A. Kelly, Kingston, Corporation Counsel, for defendants City of Kingston and Arthur Hallinan.

BOOKSTEIN, Justice.

Plaintiff moves for a temporary injunction. Petitioner Walter Reade, Jr. moves for permission to intervene as a party-plaintiff. Defendants move for summary judgment dismissing the complaint or, in the alternative, for judgment on the pleadings.

Defendant, Kingston Cablevision, Inc., hereinafter referred to as 'Cablevision', was incorporated, pursuant to Section 3 of the Transportation Corporations Law, to construct, operate and maintain a community antenna system within the County of Ulster; to construct, operate and maintain wires, cables, amplifiers, towers, electronic equipment and other things necessary for such community antenna system and to do everything necessary for the accomplishment and furtherance of the aforesaid powers.

Section 2 of the Transportation Corporations Law classifies transportation corporations in eight categories. Subdivision 2 thereof classifies one of such corporations as 'A telegraph corporation, a telephone corporation or a telegraph and telephone corporation'.

Article 3 of the Transportation Corporations Law deals with Telegraph and Telephone Corporations.

Section 25 of that law defines a telegraph and telephone corporation as follows:

'A telegraph corporation is a corporation organized to construct, own, use and maintain a line or lines of electric telegraph wholly within or partly without this state, or to acquire and own any interest in any such line or lines, or any grants therefor or for any or all of such purposes. A telephone corporation is a corporation organized to construct, own, use and maintain a line or lines of electric telephone wholly within or partly without the state, or to acquire and own any interest in any such line or lines, or any grants therefor or for any of such purposes. A telegraph and telephone corporation is a corporation organized for both such telegraph and telephone purposes'.

If defendant 'Cablevision' is a transportation corporation, it is so only by reason of Section 2, subdivision 2 and Section 25 of the Transportation Corporations Law.

Plaintiff attacks an ordinance passed by the Common Council of the defendant, The City of Kingston, New York (hereinafter referred to as 'City') and signed by its Mayor, on the ground that there has not been compliance in the passage of such ordinance, with provisions of subdivision 2 of Section 23 of the General City Law, with respect to public auction and public notice thereof. Plaintiff's contention is that the ordinance grants a franchise to defendant 'Cablevision'. Defendants contend that the ordinance grants no franchise but rather a permit for defendant 'Cablevision' to do certain things in the streets of defendant 'City', and in and about its poles, in order to carry out its franchise granted to it by virtue of its certificate of incorporation and the Transportation Corporations Law.

It becomes important, therefore, first to determine whether or not defendant 'Cablevision' is a transportation corporation.

Plaintiff contends that Section 25 of the Transportation Corporations Law makes no mention of a corporation engaged in radio or television transmission, and, hence, 'Cablevision' cannot be a transportation corporation and that the language of that section cannot be extended by implication. If that contention is correct, then the ordinance under attack is invalid for failure to comply with subdivision 2 of Section 23 of the General City Law.

In Holmes Electric Protective Co. v. Williams, 228 N.Y. 407, at page 420, 127 N.E. 315, at page 318, the Court of Appeals said:

'General incorporation acts have usually been given a sufficiently broad interpretation to meet progressive inventions in the enterprises mentioned'.

In that case the court said at page 417 of 228 N.Y., at page 317 of 127 N.E.:

'Read strictly, the Telegraph Act of 1848 might seem to apply solely to telegraph companies as understood at the present time, but such has not been the interpretation given by the courts or the public officers and departments dealing with companies and associations incorporated under the act. It certainly could not have applied to telephone companies as such were not known or in existence in 1848. And yet when the telephone was perfected so as to transmit the human voice and companies were formed to enable persons at distances to talk with each other, the Telegraph Act was held to be the authority for such incorporation. Hudson River Telephone Co. v. Watervliet Turnpike & Railway Co., 135 N.Y. 393, 32 N.E. 148, 17 L.R.A. 674; People v. Metropolitan Telephone & Telegraph Co., 31 Hun 596. District messenger companies requiring wires for calling officers or messengers were recognized by the courts as corporations organized under this law of 1848. Hirsch v. American District Telegraph Co., 112 App.Div. 265, 98 N.Y.S. 371; American District Telegraph Co. v. Woodbury, 127 App.Div. 455, 112 N.Y.S. 165.' And at page 418 of 228 N.Y., at page 318 of 127 N.E., the court said: 'Companies to transmit stock quotations by telegraph and incorporated as telegraph companies have been before the courts unquestioned as to their powers. Tucker v. Western Union Telegraph Co., 95 Misc. 287, 158 N.Y.S. 959, affirmed 171 App.Div. 965, 156 N.Y.S. 1148; Smith v. Gold & Stock Telegraph Co., 42 Hun 454.'

The Attorney General has ruled that a corporation engaged in business of receiving, relaying and distributing television and radio broadcasts by means of wires is a telegraph and telephone corporation and should be formed pursuant to the Transportation Corporations Law.

The Department of State has accepted and filed the certificate of incorporation of defendant, 'Cablevision' as proper under the Transportation Corporations Law. 1952 Op.Atty.Gen., 166.

While, of course, the action of the Department of State and the opinion of the Attorney General are not conclusive or binding on the courts, they are entitled to considerable weight, in view of the statements in Holmes Electric Protective Co. v. Williams, supra, heretofore quoted herein.

This court concludes that defendant 'Cablevision' is a transportation corporation, within the purview of Article 3 of the Transportation Corporations Law.

We come next to the question of the source of the franchise of defendant, 'Cablevision'. Plaintiff contends that the franchise is granted by the ordinance under attack.

General City Law, § 20, subd. 10, confers upon cities the power 'To grant franchises or rights to use the streets, waters, water front, public ways and public places of the city'.

Section 23, subdivision 2, par. b of that law imposes conditions on making or authorizing a franchise, such as public auction on public notice. It is significant that, unlike Section 20, subdivision 10, Section 23, subdivision 2, par. b makes no reference to 'rights to use the streets', as requiring public auction on public notice. It seems to this court that the omission of the language 'rights to use the streets' in the latter section is intentional and purposeful. If the city by ordinance actually grants a franchise, then subdivision 2, par. b of Section 23 must be complied with.

Section 27 of the Transportation Corporations Law authorizes a telegraph or telephone corporation to 'erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways'.

That authorization creates the franchise, in the classic sense of that word, which is granted to defendant 'Cablevision' upon its incorporation.

True...