New York & L.I. Bridge Co. v. Smith

• Decision Date: 25 February 1896
• Citation: 148 N.Y. 540,42 N.E. 1088
• Court: New York Court of Appeals Court of Appeals
• Parties: NEW YORK & L. I. BRIDGE CO. v. SMITH et al.

148 N.Y. 540

42 N.E. 1088

NEW YORK & L. I. BRIDGE CO.

v.SMITH et al.

Court of Appeals of New York.

Feb. 25, 1896.

Application by the New York & Long Island Bridge Company against Lenox Smith, impleaded with Patrick Skelly, for the appropriation of certain land. An order appointing commissioners of appraisal, entered on the decision of a referee in favor of petitioner, was affirmed by the general term (35 N. Y. Supp. 920), and defendant Smith appeals, defendant Skelly having neither answered nor appeared at the trial. Affirmed.

The premises belonging to defendant Lenox Smith, and for the appropriation of which this proceeding was brought, are situated on the easterly side of Third avenue, in the city of New York, beginning 50 feet north of Sixty-Fourth street, and having a frontage of 75 feet on Third avenue, and a depth of 105 feet. The New York & Long Island Bridge Company was incorporated by chapter 395, Laws 1867, entitled ‘An act to incorporate the ‘New York and Long Island Bridge Company,’ for the purpose of constructing and maintaining a bridge over the East river between the city of New York and Long Island.' This act was amended by the following acts, viz.: Chapter 437, Laws 1871; chapter 426, Laws 1879; chapter 392, Laws 1885; chapter 411, Laws 1892; and chapter 212, Laws 1894.

De Lancey Nicoll, for appellant.

Julien T. Davies and William J. Kelly, for respondent.

BARTLETT, J.

The main question presented by this appeal is whether the New York & Long Island Bridge Company was, as the time this proceeding was instituted, an existing corporation duly authorized to acquire title to the land of the defendant Smith, for the purpose of constructing the bridge and its approaches. The learned counsel for the appellant rests his attack upon the corporate existence on various distinct grounds, and a proper consideration of them involves a full examination of the legislation under which the bridge company claims the right to maintain this proceeding. The appellant takes a preliminary point which, if sound, would require a reversal of the order appealed from, and a dismissal of this proceeding. The act incorporating the bridge company (chapter 395, Laws 1867) provides in the twelfth section thereof that the bridge shall be commenced within two years from the passage of the act, and shall be continued without unreasonable delay, until it is completed, ‘or this act and all rights and privileges granted hereby shall be null and void.’ It is the contention of appellant's counsel that this forfeiture clause is self-executing, and, as it is admitted that the work was not commenced within two years from the passage of the act, the bridge company, ipso facto, ceased to exist. We are referred to a large number of authorities as sustaining this position, and, among others, to several cases in this court. It is to be observed that the question as to whether a forfeiture clause is or is not self-executing depends wholly upon the language employed by the legislature. Our attention is called particularly to In re Brooklyn, W. & N. Ry. Co., 72 N. Y. 245, and Brooklyn Steam Transit Co. v. City of Brooklyn, 78 N. Y. 524. In the first case the words of forfeiture were, ‘Its corporate existence and powers shall cease,’ and this court held that upon default the corporation's existence and powers ceased, without judicial proceedings. In the second case the words of forfeiture were, ‘This act and all the powers, rights, and franchises herein and hereby granted shall be deemed forfeited and terminated,’ and this court held the clause to be self-executing, thereby recognizing the undoubted power of the legislature to provide that corporate existence shall cease by the mere fact of failure of the corporation to perform certain acts imposed by the charter. It requires, however, strong and unmistakable language, such as each of the cases referred to presents, to authorize the court to hold that it was the intention of the legislature to dispense with judicial proceedings of the intervention of the attorney general. In the case at bar the words of forfeiture are, ‘All rights and privileges granted hereby shall be null and void.’ It cannot be said that the words ‘shall be null and void’ disclose the legislative intent to make this clause self-executing. The words ‘null and void,’ as used in this connection, clearly mean voidable. The word ‘void’ is often used in an unlimited sense, implying an act of no effect, a nullity ab initio. Inskeep v. Lecony, 1 N. J. Law, 112. In the case at bar it was not so employed, but rather in its more limited meaning. We think these words mean no more than if the legislature had said, in case of default, the corporation ‘shall be dissolved.’ The attorney general was authorized to treat the charter of the bridge company as voidable, and, by appropriate legal proceedings to have terminated its corporate existence. The supreme court of the United States, in passing upon the meaning of the words ‘void and of no effect,’ uses this language: ‘But these words are often used in statutes and legal documents * * * in the sense of ‘voidable’ merely,-that is, capable of being avoided,-and not as meaning that the act or transaction is absolutely a nullity, as if it never had existed, incapable of giving rise to any rights or obligations under any circumstances.' Ewell v. Daggs, 108 U. S. 148, 2 Sup. Ct. 408.

Holding, as we do, that the forfeiture clause in the act of 1867 was not self-executing, we find, in the various acts amending the act of 1867, repeated waivers by the legislature of the failure of the bridge company to begin its work within two years from the passage of the act of 1867. The act of 1871 (chapter 437) provides that the company shall proceed within two years to construct the bridge, and must complete it before the 1st of June, 1879. The act of 1879 (chapter 426) provides that the bridge should be commenced within two years from the passage of the act, and be completed by the 1st day of June, 1885. The act of 1885 (chapter 392) provides that work should commence before May 30, 1888, and continue with all due diligence to completion. The act of 1892 (chapter 411) provides that work should begin before March 3, 1893, and be completed before the 3d day of March, 1900.

It may be well enough to state at this point that, among the questions of fact passed upon by the referee in this proceeding, were these two, viz.: Did the bridge company begin work under the act of 1885, before May 30, 1888? Did it begin work under the act of 1892, before March 3, 1893? The learned referee answered both of these questions in the affirmative, and the general term refused to disturb these findings. We are satisfied, from an inspection of the record, that the findings are supported by evidence. It therefore follows that the point is not well taken that the bridge company, by reason of failure to commence work upon the bridge in due season, has ceased to be a living, existing corporation.

The next point made by the appellant brings up for consideration the most important question presented by this appeal. It is insisted that the act of 1892 (chapter 411), under which this proceeding is instituted, violates article 3, § 16, of the constitution, in that its subject is not expressed in its title. The section reads as follows: ‘No private or local bills, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.’ To properly deal with this point, it becomes necessary to examine the act of 1867 and the various statutes amending it. In looking at the act of 1867, the first point that arrests the attention is the title, which reads: ‘An act to incorporate the New York and Long Island Bridge Company, for the purpose of constructing and maintaining a bridge over the East river, between the city of New York and Long Island.’ It is under this title that all amendatory acts must be subjected to the constitutional test. The corporation, under the act of 1867, was given power to purchase, acquire, and hold as much real estate as was necessary for the site of the bridge and the abutments, approaches, walls, and other structures proper to the bridge, and for the opening of suitable avenues of approach. The act further provides that the capital of the company shall be $2,000,000, with power to increase it. It also locates the bridge in the city of New York, between Third avenue and East river, and between Fiftieth and Ninety-Second streets, and to cross the East river as near opposite as practicable to Long Island, to such a point as will afford and give reasonable grade and facilities for approaches. It also provides for condemnation proceedings, forfeiture for not commencing work, etc. We have here a complete scheme, fully described in the title of the act, and the question is whether it can be separated from subsequent unconstitutional amendments of the act of 1867, and allowed to stand as embodying the clear legislative intent? The act of 1871 conferred upon the company power to acquire land under water, to receive real estate donated, etc. The act of 1879 amended the act of 1867 by increasing height of bridge above average mean tide from 135 to 150 feet, and repealed the very salutary provision of the act of 1867 allowing the counties of New York and Queens to purchase the property of the bridge company at any time upon certain terms. The act of 1885 amended the act of 1867 so as to allow the bridge to be built for railway, carriage, and foot travel. This is the first appearance in the scheme of the power to construct a railway over this bridge. In the section amending section 10 of the act of 1867 there also appear, for the first time, provisions looking to a broader scheme than that contemplated in the original act. After extending time to begin the work, the amendment provides for the prosecution of the work with due diligence until the said bridge and...