Ingersoll v. Nassau Elec. R. Co.

• Decision Date: 10 January 1899
• Citation: 52 N.E. 545,157 N.Y. 453
• Parties: INGERSOLL v. NASSAU ELECTRIC R. CO.
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 453

52 N.E. 545

INGERSOLL

v.NASSAU ELECTRIC R. CO.

Court of Appeals of New York.

Jan. 10, 1899.

Appeal from supreme court, general term, Second department.

Action by Oliver W. Ingersoll against the Nassau Electric Railroad Company. A judgment for defendant was affirmed by the general term (34 N. Y. Supp. 1044), and plaintiff appeals. Affirmed.

Vann, J., dissenting.

William G. Cooke and Frederick T. Hill, for appellant.

Charles A. Collin and Henry Yonge, for respondent.

PARKER, C. J.

I quite agree that if all the views expressed in the opinion in Colonial City Traction Co. v. Kingston City R. Co., 153 N. Y. 540, 47 N. E. 810, were intended to be applicable to every conceivable case in which the tracks of one surface railroad might be used by another, then would we, indeed, be placed in an embarrassing position, as we stand confronting a statute that has been in existence since 1839, providing that ‘it shall be lawful hereafter for any railroad corporation to contract with any other railroad corporation, for the use of their respective roads, and thereafterto use the same in such manner as may be prescribed in such contract.’ That is precisely what the Atlantic Avenue Company undertook to do in contracting with this defendant for the use by the latter of the former company's double tracks through a portion of a certain street in the city of Brooklyn. This statute was not pressed upon the attention of the court in the Colonial Traction Co. Case, because there it was not directly involved. Instead of a contract between two railroads by which one was permitted to use some portions of the tracks of the other, that was a proceeding by the one to condemn the right to use the tracks of the other, and was, by that other, resisted to the uttermost. On a motion for a reargument the possible effect of some of the expressions made use of in the opinion, in a situation like this, was pointed out, and the court promptly gave assurance that it had not decided to override the statute of 1839, that statute not being directly involved. This assurance was furnished by an opinion written by the learned judge who had spoken for the court in the decision of the case, and he said: ‘It is also suggested that our opinion has raised apprehension as to its effect as a precedent upon railroad leases and traffic agreements, of which there are said to be many now in force all over the state. It was not our intention to decide any case but the one now before us, which simply involved the standing of the plaintiff to make the application in question, and our opinion shoudl be read in the light of that purpose. If, as sometimes happens, broader statements were made by way of argument or otherwise than were essential to the decision of the questions presented, they are the dicta of the writer of the opinion and not the decision of the court.’ We are thus brought to the consideration of a question which may have been incidentally written about, but has never been decided by this court. It has never been decided because it has not been involved. Aye, more than that, it has not been considered; for there has been nothing in any situation actually presented to this court to suggest that such a question might arise. This defendant, relying upon the statute to which we have referred, entered into a contract, made in conformity with the provisions of such statute, by which it acquired the right to run its cars over some portion of the tracks of the Atlantic Avenue Railroad. The plaintiff, an abutting owner, sought to restrain the defendant from enjoying the privilege for which it contracted, but the courts have so far held that the defendant's acts were entirely legal, and that the plaintiff has no legal right or interest with which the defendant interferes through the use that it makes of the tracks of the Atlantic Avenue Railroad Company. That this decision cannot be questioned on principle is certain if it be the fact that at the time of the acquisition of the franchise over the street in question by the Atlantic Avenue Railroad Company such a statute as the act of 1839 was in existence, and was not in conflict with the constitution or some other statutory provision. All these questions were discussed by the court in People v. Brooklyn, F. & C. I. Ry. Co., 89 N. Y. 75. The assignor in that case, as in this, was the Atlantic Avenue Railroad Company; in each case the right sought to be acquired by the defendant was the right to run its cars over certain tracks of the assignor company, and the justification for the contract according the right was the act of 1839 (chapter 218, § 1). It was claimed in that case that the act of 1839, by the authority of which the contract was made, was rendered invalid by the constitutional provision of 1875 (article 3, § 18), continued in the revision of 1894. But the court held that the act of 1839 was unaffected by that constitutional provision, in that it did not undertake to affect existing legislation, but instead to restrict legislative power as to future legislation. Said the court: ‘The whole scope of the section is to dictate to the lawmaking power what it may or may not do thereafter, what bills it may pass and what it shall not, and not at all to affect or act upon past legislation which at the time was entirely lawful.’ That decision has not been questioned in the slightest degree in any case to which our attention has been called, prior to the present review. But, as it is now challenged, a brief consideration of the reasons justifying it will not be out of place.

It is conceded that the act of 1839, entitled ‘An act authorizing railroad companies to contract with each other,’ has been continued in force from the time of its enactment to the present, and is now to be found in section 78 of the railroad law. Upon its incorporation into section 78 of the railroad law by the revision of 1890, the act of 1839 was, with many other laws, in terms repealed by section 182 of the railroad law. Laws 1890, c. 565. Section 182, however, declared that: ‘The provisions of this chapter, so far as they are substantially the same as those of laws existing on April 30, 1891, shall be construed as a continuation of such laws, modified or amended according to the language employed in this chapter, and not as new enactments.’ Independently of this provision, under the settled doctrine of statutory construction, the effect of the revision of the statutes by a reenactment of previous statutes would have operated as a continuance of the provisions of the former statute instead of a repeal and a new enactment. But the legislature, by the provision that we have quoted, took away all opportunity for question by enacting that such revision constituted a continuation of the enactments incorporated therein. Thus is fully supported the assertion that the act of 1839 has been in full force and effect from the day of its enactment to and including the present time. The act applies to both steam and street-surface railroad corporations, and authorizes both traffic agreements and leases. People v. O'Brien, 111 N. Y. 1, 18 N. E. 692; People v. Brooklyn, F. & C. I. Ry. Co., supra; Woodruff v. Railroad Co., 93 N. Y. 609. It is unaffected by the provision of the constitution that ‘the legislature shall not pass a private or local bill in any of the following cases.’ Thirteen specifications follow, one of which contains, among other things, the following: ‘The legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction or operation of a street railroad except upon the condition that 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 a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the appellate division of the supreme court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.’ Const. art. 3, § 18, as amended in 1874 and continued in the revision of 1894.

Statutory enactments in existence at the time of the adoption of this provision of the constitution were not aimed at, for the reason doubtless that chapter 140 of the Laws of 1850 (section 28, subd. 5) provided that the assent of the corporation of a city was necessary to authorize the construction of any railroad upon the streets of a city, and chapter 140 of the Laws of 1854 (section 1) prohibited the construction without the consent of a majority in interest of the owners of property upon the streets upon which a railroad is to be constructed. But as it was possible for the legislature to change the statutes in that respect, in the language of Judge Finch, in 89 N. Y. 75, ‘it [the constitution] commands the legislature not to ‘pass' a private or local bill for certain specified purposes, and ordains that those purposes shall be accomplished through the aid of general laws, and then restrains their range by a further condition that even by a general law the legislature shall not authorize ‘the construction or operation of a street railroad’ except in certain cases.' The framers of the amendment to the constitution of 1874 apparently saw no objection to the principle of the act of 1839; otherwise they would have prohibited the making of a contract with one railroadby another for the use of its tracks without the consent of the abutting owner. This they did not attempt to do, either in terms or by...