In re Washington St., A.&P.R. Co.

• Decision Date: 08 October 1889
• Citation: 115 N.Y. 442,22 N.E. 356
• Parties: In re WASHINGTON ST., A. & P. R. CO.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 442

22 N.E. 356

In re WASHINGTON ST., A. & P. R. CO.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, fourth department.

Proceedings by the Washington Street, Asylum & Park Railroad Company to acquire a crossing of the road of the Syracuse, Binghampton & New York Railroad Company. For opinion of the general term, see 5 N. Y. Supp. 355.

D. S. Richards, for appellant.

W. J. Welsh, for respondent.

PECKHAM, J.

Two grounds for denying the prayer of the petitioner for the appointment of a commission have been argued before us. It has been urged (1) that the two original companies, whose valid consolidation is herein denied, were never themselves legally incorporated; and (2) if they were so incorporated, yet even then they could not become consolidated into a new corporation, because there is no law under which such consolidation could be effected. We think neither ground is well taken. As to the first. Both corporations were organized under the general railroad act of 1850 and its amendments. It is claimed that such act does not relate to the incorporation of street railroads. This claim is at war with the generally received construction of the act. Ever since its passage, in 1850, or at least within a very few years thereafter, corporations for transporting passengers by horses as a motive power, over railroads in the streets of cities, have been formed under and by virtue of the provisions of such act, and no doubt has thus far been suggested as to the validity of such corporations. Corporations thus formed are in existence in Brooklyn, Albany, Binghamton, Kingston, Cohoes, and other cities of the state. There is nothing in the act of 1850 which prohibits (outside of the city of New York) such corporations from being formed under its provisions; and the language of the act is general, and broad enough to include corporations formed for such a purpose. One or two expressions in opinions written by judges of this court have been cited as evidence that the general railroad act of 1850 had no application to street railroads. The cases from which these extracts have been taken are Cable Co. v. Mayor, etc., 104 N. Y. 1-14, 10 N. E. Rep. 332; In re Railroad Co., 107 N. Y. 42, 53, 54, 14 N. E. Rep. 187; People v. Newton, 112 N. Y. 396, 401, 19 N. E. Rep. 831. Each one of the above cases arose in New York city, and in regard to that city it is admitted that the general railroad act has now no application; for by chapter 10 of the Laws of 1860 it was made unlawful to thereafter lay, construct, or operate a railroad in New York city, except under the authority of the legislature to be thereafter granted. The remark of Judge RAPALLO in the first-cited case, that up to the time of the passage of the general surface street railroad act of 1884 there had been no law in force under which street railroads could be constructed, except the rapid transit act,-the general railroad act of 1850 being inapplicable to street railways in cities,-was not exactly accurate if applied to all the cities in the state, but was in entire accord with the truth in regard to the particular city (New York) which he was writing about, and in which the corporation existed whose rights were then under review. The inclusion of the other cities of the state was not in any way material to his argument, and was probably a mere inadvertent expression of the learned judge; the important fact being that the general railroad act of 1850 did not apply to street railways in the city of New York. In the second case above cited, Judge FINCH makes the remark that we had held that the general railroad act of 1850 had no application to street railroads; and he refers to the case of the cable company, above alluded to. The same may be said of that remark, at I have just said, of Judge RAPALLO'S. It was made in relation to a New York company, which claimed the right to build its road under ground from the general railroad act of 1850, and it was stated that such act had no relation to street railroads; but that, if it had, the act of 1860, c. 10, took it away, so far as New York city was concerned. It was New York city which was in the mind of the learned judge, and not the applicability of the general railroad act to street-railroad companies in other cities of the state. But he continued the discussion by expressly stating that the truth might be that the company derived its corporate existence from the act of 1850, but not its right to construct its contemplated road, because by the act of 1860 such right in New York city was thereafter to be the subject of special legislation. In the last case cited, the question was not in issue, and the remark was a general one, that the act of 1850 gives no authority for the construction of street railroads; and, if it were limited to New York city, (by reason of the passage of the act of 1860,) it is certainly a correct statement of the fact. It was made in reference to a New York corporation, and it was followed up by a statement that, if any right were gained by an organization under that act, the company was required to do the things mentioned in the opinion, and which, it was argued, left it without any authority to do the acts which it proposed to do. Not one of the learned judges had the exact question in mind as to the applicability of the act of 1850 to any city other than New York, and in regard to New York the remarks of each were correct. The question is entirely open in this court; and we have no hesitation in saying that corporations might be legally formed under the act in question for the transportation of passengers or freight, or both, over railroads in the streets of cities where horses were to be the motive power,...