In re Brooklyn, Q.C.&S.R. Co.

• Decision Date: 08 May 1906
• Citation: 77 N.E. 994,185 N.Y. 171
• Parties: In re BROOKLYN, Q. C. & S. R. CO.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 171

77 N.E. 994

In re BROOKLYN, Q. C. & S. R. CO.

Court of Appeals of New York.

May 8, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Mandamus, on the relation of the Brooklyn, Queens County & Suburban Railroad Company, to compel Martin W. Littleton, as president of the borough of Brooklyn, and others, to grant a certain street in order to construct a certain street railroad. From an order of the Appellate Division (94 N. Y. S. 113), affirming an order denying the application, relator appeals. Affirmed.

Alton B. Parker (Charles A. Collin, Edward W. Hatch, William F. Sheehan, and George D. Yeomans, on the brief), for appellant relator.

Frank S. Black, for appellant bondholders.

John J. Delany, Corp. Counsel (James D. Bell, of counsel), for respondents.

HISCOCK, J.

The railroad company, petitioner and appellant, sought by mandamus to compel the proper authorities of the borough of Brooklyn to permit it to construct a doubletrack extension of its street surface railroad upon Saratoga avenue in said borough. The learned Appellate Division has affirmed the order of the Special Term denying this application, upon the ground that the petitioner through inaction had forfeited its franchise and right to construct said extension. This determination involved the decision that the self-executing forfeiture provisions of section 5, c. 565, p. 1084, of the Laws of 1890, known as the ‘Railroad Law,’ apply to street surface railroads, and, conversely, that section 99 of said law, applicable solely to said railroads, and which also relates to forfeitures, but is not self-executing, is not exclusive, and does not exempt them from the provisions of the other section. We agree with the conclusions adopted by the courts below upon this point, and are thereby led to an affirmance of the order appealed from.

The facts presenting the questions involved upon this appeal are simple and not the subject of controversy. The Broadway Railroad Company for many years prior to 1893 had been a street surface railroad corporation owning and operating a double-track street surface railroad on Broadway and other streets in the city of Brooklyn. On May 28, 1893, it caused to be filed and recorded a certificate of extension of its road between certain limits upon Saratoga avenue in said city. On July 24, 1893, the common council of said city granted its consent to said railroad company to construct, maintain, and operate said proposed extension. In November, 1893, the Brooklyn, Queens County & Suburban Railroad Company, the petitioner herein, was duly incorporated as a street surface railroad corporation, and upon January 16, 1894, being then the lessee of the rights, property, and franchises of the Broadway Railroad Company, took a surrender and transfer of all the capital stock of said latter company, which thereby became merged into and with the Brooklyn, Queens County & Suburban Railroad Company, which in turn thereby became the owner of, amongst other property, the right, privilege, and franchise above referred to, to construct and operate the extension in Saratoga avenue. Some time between January 16, 1894, and September 30, 1903, the petitioner obtained the requisite consents of property owners for the construction of said extension, but down to the time of the institution of this proceeding at said latter date it had never taken any steps to commence or complete the construction of the same.

Section 5 of the railroad law above referred to, at the time its franchise was granted to petitioner and for several years thereafter, so far as applicable, provided: ‘If any domestic railroad corporation shall not, within five years after its certificate of incorporation is filed, begin the construction of its road and expend thereon ten per centum of the amount of its capital, or shall not finish its road and put it in operation in ten years from the time of filing such certificate, its corporate existence and powers shall cease.’ This section is found in article 1 of the railroad law, which concedely is applicable to steam railroads. Section 99 of said law, so far as applicable at the times in question, provided: ‘In case any such (street surface railroad) corporation shall not commence the construction of its road, or of any extension or branch thereof within one year after the consent of the local authorities and property owners, or the determination of the General Term as herein required, shall have been given or renewed, and shall not complete the same within three years after such consents, its rights, privileges and franchises in respect to such railroad extension or branch, as the case may be, may be forfeited.’ This provision is found in article 4 of said railroad law which relates solely to street surface railroads. From this fact and for various reasons claimed to be deducible therefrom or in connection therewith, the learned counsel for the appellant argues that it repeals or at least excludes the operation of section 5 heretofore quoted, upon street surface railroads.

The importance of this contention, so far as this proceeding is concerned, is that the provisions of section 5 are concededly self-executing, and, if applicable, have forfeited petitioner's rights to its franchise; for the extension in question is binding, while the provisions of section 99 are only the basis for forfeiture proceedings which have never been taken. Some decisions have been made by this court which, at the outset, help to guide us to the adverse answer which we have determined to make to the appellant's contention. In 1850 the general act to authorize the formation of railroad corporations was adopted, being chapter 140, p. 211, of the Laws of that year. Chapter 775, p. 1903, of the Laws of 1867, amended said act of 1850 by providing that if any corporation formed under the latter ‘shall not, within five years after its articles of association are filed and recorded in the office of the secretary of state, begin the construction of its road, and expend thereon ten per cent. on the amount of its capital, or shall not finish its road and put it in operation in ten years from the time of filing its articles of association, as aforesaid, its corporate existence and powers shall cease.’ In Matter of Brooklyn, W. & N. Ry. Co., 72 N. Y. 245, this court held that street surface railroad companies might be incorporated under the general act of 1850, and that the amendment of 1867 just quoted was applicable to them. This decision was made in 1878. The amendment of 1867 is practically the same provision now found in and quoted from section 5 of the railroad law. Therefore we have it as a starting point that as late as 1878 street surface railroads might be incorporated under the general act of 1850, and were subject for lack of commencement and completion of their roads to the self-executing forfeiture provisions incorporated into said act and now found in the general railroad law and invoked against petitioner.

But it is urged that after this amendment was made chapter 252, p. 309, Laws of 1884, being ‘An act to provide for the construction, extension, maintenance and operation of street surface railroads,’ etc., was adopted, and that by this act for the first time a complete statutory scheme was provided for the construction, maintenance, and operation of street surface railroads, and that by a process of repeal or substitution or exclusion this act took exclusive jurisdiction of such roads and terminated any application to them of the Laws of 1850 and especially of the forfeiture provisions therein already referred to. Section 10 (page 313) of this latter act contained provisions with reference to the forfeiture for nonaction of rights, privileges, and franchises acquired by a surface railroad incorporated under the act which have largely been reenacted and reproduced in section 99 of the present railroad law. While the contention of the appellant in regard to the effect of this act of 1884 when originally passed, even if correct, might not be controlling in our construction of the statutes as they stood at the time it received its franchise in question here, we have given it such consideration as leads us to the conclusion that it is not well made.

It is not claimed that the act of 1884 by express terms repealed or prevented the application of the act of 1850 to street surface railroads, and we are therefore thrown upon the doctrine of repeal or exclusion by implication. The general principles are so well settled and familiar as not to require the support of extensive citations that such implied effect upon an earlier statute by a later one is not favored; that when some office or function can by fair construction be assigned to both acts, and they confer different powers to be exercised for different purposes, both must stand, though they were designed to operate upon the same general subject; that the later act will not be deemed to repeal the former one, unless the two are manifestly inconsistent and a clear intention to repeal is disclosed on the face of the later statute. Woods v. Supervisors of Madison Co., 136 N. Y. 403, 32 N. E. 1011;People v. Koenig, 9 App. Div. 436,41 N. Y. Supp. 283. A later statute will not be deemed to repeal or abrogate a former one, unless it covers the entire subject and was plainly intended to furnish the only law upon the subject, and to be a substitute for the former enactment. People ex rel. Ross v. City of Brooklyn, 69 N. Y. 605;Heckmann v. Pinkney, 81 N. Y. 211.

As we read the two statutes now under review it does not seem to us that, under the general principles above adverted to, the act of 1884 accomplished the purpose claimed by the appellant of withdrawing street surface railroads from the application of the act of 1850, and especially of the provision incorporated into said act by the amendment of 1867. Concededly there was no general repeal of the act of 1850; for...