Kittinger v. Buffalo Traction Co.

• Decision Date: 10 October 1899
• Citation: 54 N.E. 1081,160 N.Y. 377
• Parties: KITTINGER v. BUFFALO TRACTION CO. et al.
• Court: New York Court of Appeals Court of Appeals

160 N.Y. 377

54 N.E. 1081

KITTINGER

v.BUFFALO TRACTION CO. et al.

Court of Appeals of New York.

Oct. 10, 1899.

Appeal from supreme court, appellate division, Fourth department.

Action by Joseph Kittinger against the Buffalo Traction Company and others. From an order of the appellate division reversing an order overruling a demurrer to the complaint (49 N. Y. Supp. 713), plaintiff appeals. Affirmed.

Gray, Bartlett, and Vann, JJ., dissenting.

Ansley Wilcox and Frank C. Ferguson, for appellant.

J. H. Metcalf, for respondents.

PARKER, C. J.

This defendant was organized in the year 1895 for the purpose of building in the city of Buffalo a street-surface railroad exceeding 64 miles in length, at which time another corporation had in operation a street-surface railroad that occupied nearly 80 miles of streets. On the 19th day of November, 1895, this defendant made application to the board of railroad commissioners for a certificate under section 59 of the railroad law to the effect that public convenience and necessity required the construction of the railroad as proposed, and that board, a little over two months later, refused to grant the certificate. A few days before the application made to the railroad commissioners the defendant applied to the common council of the city of Buffalo for leave to construct its railroad in pursuance of section 91 of the railroad law, which provides, in effect, that a street-surface railroad ‘shall not be built, extended, or operated, unless the consent * * * of the owners,’ in cities and villages, ‘of one-half in value of the property bounded on’ the street along ‘which it is proposed to build or operate such railroad,’ be obtained in the manner provided by that section, and also the consent of the local authorities having control of such streets. The charter of the city of Buffalo provides that ‘the legislative power of the city shall be vested in a common council, which shall consist of a board of councilmen and a board of aldermen’ (Revised Charter of the city of Buffalo; Laws 1891, c. 105, tit. 2, subc. 1, § 4), and that ‘no action of the common council shall be of force unless it shall have originated in the board of aldermen, and shall have been approved by the board of councilmen; but the board of councilmen may amend any measure transmitted to it and return the same to the board of aldermen for further consideration; if the board of aldermen agree to such amendment, its action as amended shall be the action of the common council; if it shall not agree thereto, and shall further amend, it may return the measure as finally passed by it to the board of councilmen for its further consideration’ (Id. § 5). The section last quoted further provides: ‘Whenever by law, the giving of notice, reference to any committee or any officer or person, or other act is made a prerequisite to action by the common council, it shall be necessary for such notice to be given, reference to be made or other act to be done, by the board of aldermen only, unless herein otherwise specifically provided.’ On the 2d day of December, 1895, the board of aldermen, having before it the application which the defendant had filed in the previous month, adopted a resolution to the effect that such application should be first considered by the common council on the 21st day of December, 1896, and directed the publication of such resolution in two daily newspapers of the city, to be designated by the mayor. Thereafter such resolution was approved by the board of councilmen, signed by the mayor, and published in the manner directed. Down to this point it is conceded that the proceedings were regular. On the 21st day of December, in pursuance of the notice given, the board of aldermen met, and considered the petitioner's application, and that body thereafter, and on the 23d day of December, adopted a resolution granting permission to the petitioner to construct and operate its railroad in the various streets of the city, and the same was duly transmitted to the board of councilmen, which body, on the day following, approved and adopted such resolution without amendment. No argument is required to show that this procedure was in accordance with the provisions of the charter quoted above, for it appears from its mere reading not only that the practice adopted agrees with its provisions, but that none other would. Unless, then, there are other provisions of the charter having special application to the procedure to be adopted where the consent of the common council is requisite in order to obtain a franchise for the use of the streets in the city, this question need not be further considered.

The claim of the appellant is that the board of councilmen and the board of aldermen, which together constituted the common council of the city, should have met in joint session for the purpose of considering the application, and that their failure to do so rendered the entire proceeding invalid. The provisions of the charter relied upon to sustain this position are sections 33 and 374. Section 33 provides that: ‘On the first Monday of January, of each year, or as soon thereafter as practicable, the common council shall by joint ballot, in joint session of both boards, a quorum of each board being present, elect a city clerk, who shall be the clerk of the city and the clerk of the common council.’ Section 374 provides, among other things, that: ‘If a vacancy occurs in any elective office in the city or in any ward, except of that of alderman or councilman, it shall be filled by the common council at a joint session of the boards composing the same, by a viva voce vote. Such joint session shall be called by the mayor.’ These provisions for the joint session of the two bodies composing the common council constitute exceptions to the general rule, and are applicable to the situations therein described, and to none other. It necessarily follows that the proceedings before the common council were, on their face, entirely regular,-a result reached by the appellate division in Re Buffalo Traction Co., 25 App. Div. 447,49 N. Y. Supp. 1052, its order being subsequently affirmed in this court without an opinion. 155 N. Y. 700, 50 N. E. 1115. After the resolution had passed both bodies of the common council, and, together with the application, was pending before the mayor, he sent a communication to the common council suggesting certain amendments. The charter contained no authority for this action on the part of the mayor, which, in effect, amounted to a request to the common council to withdraw the consent then pending before him for further action on their part,-a practice frequently adopted by the executive of this state and the executive heads of municipal governments. In subsequently approving of the consent, the mayor acted within his legal right, for it is not alleged in the complaint, nor is it claimed, that the mayor returned to the city clerk, with his objections, the resolutions then pending before him for his consideration, as required by section 18, c. 1, tit. 2, subc. 1, of the charter, which provides that: ‘Every ordinance and resolution of the common council * * * shall be presented to the mayor before it shall be of force. If he approves it he shall sign it; but if not, he shall return it with his objections, to the city clerk, who shall lay the same before the board of aldermen at its next regular meeting thereafter.’ The mayor did not return the consent, with his objections, to the city clerk. What he did do was to make suggestions in a letter to the common council, as he might have done orally to individual members thereof. That act, whether wise or not, did not relieve him from the duty of either signing the resolution or returning it, with his objections, to the city clerk, within the time provided by the charter, and he performed his duty by signing the resolution.

The general railroad law not only requires the consent of the municipal authorities and the consent of the owners of one-half in value of the property bounded on the streets along which the surface railroad is proposed to be constructed, or, in case of the failure to obtain the consents of the abutting owners, the substituted consent of the appellate division, but also the certificate of the board of railroad commissioners that the public convenience and public necessity require the construction of such road. Until May, 1895, the certificate of the railroad commissioners was not necessary, but it was required when this application was made, and, as has already been observed, this defendant failed in its effort to secure such certificate. The legislature of 1896 passed an act entitled ‘An act to validate and confirm certain consents heretofore given by the local authorities of cities of the first and second class in the construction, operation and maintenance of street surface railroads therein.’ That act, if constitutional, operated to do away with the necessity for the certificate of the railroad commissioners in all cities of the first and second class,-which included the city of Buffalo,-where consents had been given by the local authorities within certain specified dates. The legislature had the power, in the first instance, to have authorized the granting of franchises without the consent of the railroad commissioners; and it also possessed the power by retrospective act to cure any irregularity which existed by reason of the refusal of the railroad commissioners to grant certificates. The authorities as to the legislative power to validate by subsequent legislation acts done in assumed execution of statutory authority which has not been strictly followed, are numerous and decisive. People v. Mitchell, 35 N. Y. 551;Town of Duanesburgh v. Jenkins, 57 N. Y. 177;Williams v. Town of Duanesburgh, 66 N. Y. 137;Brownell v. Town of Greenwich, 114 N. Y. 518, 22 N. E. 24. The questions relating to the constitutionality of this statute will...