New York Cable Co. v. Mayor, Etc., of City of New York

• Decision Date: 17 December 1886
• Citation: 104 N.Y. 1,10 N.E. 332
• Parties: In re Petition of NEW YORK CABLE CO. v. MAYOR, ETC., OF CITY OF NEW YORK and others.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 1

10 N.E. 332

In re Petition of NEW YORK CABLE CO.

v.MAYOR, ETC., OF CITY OF NEW YORK and others.¹

Court of Appeals of New York.

December 17, 1886.

This is an appeal from an order of the general term of the supreme court of the First department, denying an application upon the part of the petitioner to confirm the report of commissioners appointed by the general term of the supreme court, on the ex parte application of the petitioner, to determine whether or not railways ought to be constructed and operated by the petitioner over, through, across, and on certain streets and avenues in the city of New York. The petitioner, the New York Cable Railway Company, claims to be a corporation duly created under and pursuant to the act entitled ‘An act further to provide for the construction and operation of a steam railway or railways in the counties of this state,’ passed June 18, 1875, (chapter 606, Laws 1875, p. 740,) commonly known as the ‘Rapid Transit Act,’ and alleges proceedings taken in conformity to the requirements of that act.

Robert Sewell and Wm. M. Evarts, for appellant.

Wm. C. Trull and Wheeler H. Peckham, for respondents.

RAPALLO, J.

On the hearing of this motion at the general term, the learned judges entertained different views. DANIELS, J., who delivered the principal opinion, was in favor of denying the motion on various grounds He considered, in the first place, that the act under which the petitioner claimed to have been organized, commonly known as the ‘Rapid Transit Act,’ (Laws 1875, c. 606,) did not authorize the construction of a railroad upon the surface of the land, but related only to elevated or underground railways; also that, if the rapid transit act ever did authorize the construction of surface roads, the general surface railroad act of 1884, c. 252, § 16, prohibited the erection of surface roads under the rapid transit act, and abrogated any authority which the petitioner might previously have had to construct surface roads; and further, that the commissioners appointed by the mayor, as prescribed in the rapid transit act, had failed to comply with some of the requirements of that act which were essential to the legal organization of the petitioner as a corporation. BRADY, J., concurred in only one of the propositions upon which DANIELS, J., based his conclusion, viz., the proposition that the sixteenth section of the general surface a act of 1884 abrogated the authority of the petitioner to construct a surface road. DAVIS, P. J., dissented from the conclusion reached by both of his associates. The only point, therefore, which was decided at the general term, was that the provisions of the general surface act deprived the petitioner of all power or authority to construct a surface road.

But the other points are still in the case, and are urged on this appeal with great earnestness by the counsel for the various objectors who have argued before us, and those who have submitted printed briefs, and numerous objections in addition to those discussed by DANIELS, J., are insisted upon.

As to a few of the routes designated by the mayor's commission, the general term denied the motion to confirm the report of the supreme court commissioners in the exercise of the discretionary power of the court in such cases, and its action with reference to those routes cannot and is not sought to be reviewed here; but as to the residue of the routes the court has declared, in the order appealed from, that the motion was denied ‘solely and wholly on legal grounds, and legal objections existing against the same, the petitioner being considered to have no legal right to construct or operate a railway on the streets and avenues last referred to.’ This declaration in the order authorizes us to review the questions of law involved in the determination of the general term, and seems to have been inserted with the view of inviting such an examination.

We will first consider the point on which the majority of the justices sitting at the general term agreed, viz., the effect of the act of 1884, c. 252, § 16, as abrogating the rights of the petitioner. The language of that section is as follows:

‘Sec. 16. No street surface railroad shall be constructed to run in whole or in part upon the surface of any street or highway, under the authority of any commission appointed under the provision of chapter six hundred and six of the Laws of 1875, entitled ‘An act further to provide for the construction and operation of a steam railway or railways in counties of the state,’ or the acts in addition thereto, or amendatory thereof.'

The amendments to the constitution adopted in November, 1874, contained a provision (article 3, § 18) that the legislature should not pass a private or local bill granting to any corporation, association, or individual the right to lay down railroad tracks. But it was further provided that the legislature should pass general laws providing for the cases ennmerated in section 18; and that no law should authoriz the construction of a street railroad except upon the consent of property owners, and of the local authorities, or, in case the consent of property owners could not be obtained, the determination of three commissioners appointed by the supreme court, which determination should be confirmed by the court. From the time this amendment took effect, January 1, 1875, until the passage of the general surface railway act of 1884, there had been no law in force under which street railways could be constructed, except the rapid transit act; the general railroad law of 1850 being inapplicable to street railways in cities, and no other general law having been passed as required by the constitution. The rapid transit act excluded the use of animal power to draw the cars; subdivision 4 of section 26 giving authority to companies organized under that act to ‘convey persons or property on their railroad by the power or force of steam, or by any motor other than animal power.’ No horse railroad, consequently, could be organized under that act. To provide a more complete system of street surface railways, the act of 1884 was passed. It dispensed with the machinery of a mayor's commission, and allowed companies to be formed by the voluntary association of the requisite number of property; authorized them to select their own routes,-provided the requisite number of property owners, or a supreme court commission, and the local authorities consented thereto; and did not exclude the use of either animal or steam power, but authorized the use of ‘animal or horse power, or any power, other than locomotive steam-power, which might be consented to by the local authorities and a majority of the property owners,’ etc.

Having thus made provision for a system of street surface roads more comprehensive even than could be claimed to be provided for by the rapid transit act, the legislature naturally determined to make that system exclusive, and to have no more mayor's commissions for surface roads. But it was matter of public notoriety that the commission which organized the petitioner had been at work since December, 1883. It had held numerous meetings in the city of New York, and had published notices of its proceedings from time to time, as required by the act. It had determined upon the necessity of the road; had located the routes; had, after public notice, adopted plans for the construction of the roads; prepared articles of association; caused subscription books to be opened, after public notice, for subscriptons to the capital stock; and the whole of the capital stock, amounting to $2,000,000, had been subscribed, and the fixed percentage thereof paid in cash; a board of directors had been elected, and the company organized; and the certificate of organization filed. All these acts were required by the act to be done before they could become a corporation. They were completed, before the passage of the general surface act of May 6, 1884, viz., on the twenty-first of April, 1884; and the plaintiff on that day became, in so far as the plans of the commissioners provided for surface roads, an existing street surface railroad company, provided, in its organization, it had conformed to the essential requirements of the rapid transit act,-a question which will be considered hereafter.

When the legislature passed the general surface railroad act, and by section 16 made it the only law under which street surface railroads could thereafter be organized, I think that they intended to save the rights of all existing street surface railroad companies, even though they had been organized under the rapid transit act, and that with this view section 18 of the general surface railway act was inserted. That section provides that ‘nothing in the act shall * * * interfere with or repeal or invalidate any right theretofore acquired under the laws of this state by any horse-railroad company, or affect or repeal any right of any existing street surface railroad company to construct, extend, operate, and maintain its road in accordance with the terms and provisions of its charter, and the acts amendatory thereof.’

It is evident, from the language of this section, that it was intended to save the rights of existing street surface railroad companies other than horse-railroad companies, because, after in terms providing for horse-railroad companies, it adds immediately after, and in the same sentence, the provision for theportection of any existing street surface railroad company, without restricting it to horse-railroad companies. As there was no law except the rapid transit act authorizing the formation of street surface railroad companies, to be operated by any power other than horse-power, the second branch of the saving clause must have been intended to embrace existing companies, organized under the rapid transit act.

An examination of the proceedings of the legislature discloses that the general surface...