People ex rel. New York Elec. Lines Co. v. Squire

• Decision Date: 17 January 1888
• Citation: 107 N.Y. 593,14 N.E. 820
• Parties: PEOPLE ex rel. NEW YORK ELECTRIC LINES CO. v. SQUIRE, Commissioner of Public Works.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 593

14 N.E. 820

PEOPLE ex rel. NEW YORK ELECTRIC LINES CO.

v.SQUIRE, Commissioner of Public Works.

Court of Appeals of New York.

January 17, 1888.

Application for a writ of mandamus, upon the relation of the New York Electric Lines Company, to compel Rollin M. Squire, as commissioner of public works, to grant permission for the construction of under-ground conduits for electric wires. At the general term the application was denied, and relator appeals.

David Leventritt, for appellant.

D. J. Dean, for respondent.

RUGER, C. J.

The relator was incorporated in 1882 for the purpose of ‘owning, constructing, using, maintaining, and leasing lines of telegraph wires or other electric conductors for telegraphic and telephonic communication, and for electric illumination, to be placed under the pavements of the streets,’ etc., in the counties of New York and Kings. Their organization was effected under chapter 265, Laws 1848, which by a general law authorized the formation of corporations of that character; and in 1883 it applied to and received from the common council of the city of New York, by virtue of the power conferred upon such council by chapter [107 N.Y. 598]397, Laws 1879, permission to construct conduits and lay wires in certain streets of New York under certain conditions named in the ordinances, which, among other things, required that such work should be performed under the control and supervision of the commissioner of public works. The relator in 1883 also filed with the clerk of New York county certain maps, plans, and tabular statements, as required by the ordinance, and proceeded to collect the material and equipments necessary to build its structures, and transact its business. No further progress seems to have been made by the relator until July, 1886, when application was made by it to the department of public works of New York for permission to open some of the streets in the city for the purpose of laying therein its wires and conductors. This permission was refused upon the ground that the relator had not obtained the approval of the subway commissioners of New York to its plans and construction.

This proceeding was brought to obtain a peremptory mandamus requiring the commissioner of public works to grant a permit to the relator authorizing it to excavate in the streets of the city to enable it to construct conduits and lay electric wires and conductors therein. The application was denied at special term, and the general term, upon appeal to that court, affirmed the order denying the writ. Section 1, c. 534, Laws 1884, provides that ‘all telegraph, telephonic, and electric light wires and cables used in any incorporated city of this state, having a population of five hundred thousand or over, shall hereafter be placed under the surface of the streets, lanes, and avenues of said city.’ Section 2 requires that ‘every corporation * * * owning or controlling telegraph, telephone, electric, or other wires or cables * * * shall, before the first day of November, 1885, have the same removed from the surface of all streets or avenues in every such city of this state.’ And section 3 provides that in case the owners of such property do not comply with the provisions of the act within the time limited, the local governments of the said cities shall cause such wires, etc., to be removed and placed under ground. These provisions do not seem to have been impaired in any material respect by the subsequent legislation of 1885 and 1886, and, by express terms, this act applies as well to existing companies as to those thereafter to be formed. By chapter 499, Laws 1885, it was provided that three persons should be appointed to constitute a board of commissioners of electrical subways in cities having a population exceeding 500,000. By section 2 such boards were charged with the responsibility of enforcing the provisions of the act of 1884, and it was made their duty to cause to be removed from the surface of the streets, etc., all wires and cables used in the business of such electric companies, and to put them under ground wherever practicable, and cause them to be there operated and maintained; and said act of 1884 was declared to be amended to conform to the provisions of this act. Section 3 of said act provided that ‘when any company operating, or intending to perate, electrical conductors in any such city, shall desire or be required to place its conductors or any of them under ground * * * it shall be obligatory upon such corporation to file with said board of commissioners a map or maps, made to scale, showing the streets or avenues or other highways which are desired to be used for such purpose, and giving the general location, dimensions, and course of the under-ground conduits desired to be constructed. Before any such conduits shall be constructed it shall be necessary to obtain the approval of said board of said plan of construction so proposed by such company.’ By section 10, ‘all acts and parts of acts inconsistent herewith are hereby repealed.’ These acts seem to have been intended to apply to all companies, and to whatever stage of their organization they may have reached.

It is not claimed by the relator that it has ever filed with the board of commissioners its maps and plans as required by said act, or that it has obtained from them an approval of such maps, etc., and it is therefore clear that section 3 of the act of 1885 constitutes an insuperable objection to the relator's application, unless, for some reason, it be adjudged to be void for unconstitutionality. The relator has met this question squarely, and challenges the constitutionality of the act upon several grounds, which may be summarized as follows: (1) That it violates section 16 of article 3, in that it is a local bill, and embraces more than one subject not expressed in its title. (2) That it violates section 17 of article 3, providing that ‘no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.’ (3) That said act levies a tax upon such companies, in that it is provided that the cost and expenses of such board of commissioners are authorized to be assessed by the comptroller of the state, when paid by him, upon the several companies operating electrical conductors in any such city of the state which shall be required to place and operate its conductors under ground. (4) That if said act of 1885 applied to the relator it was unconstitutional, as it impaired the rights which it had secured by virtue of the grant from the authorities of New York to construct conduits and lay wires and conductors in the streets of that city, and its acceptance thereof. We are of the opinion that none of the points taken by the appellant are tenable. It is convenient to consider these questions in the order in which they have been stated.

1. The act referred to is not subject to the condemnation expressed in section 16, article 3, for the reason that it is neither a private or local bill, nor does it embrace more than one subject. The three acts of 1884, 1885, and 1886, all relate to the same subject, viz., that of placing all electrical wires and conductors in cities exceeding 500,000 population under the surface of streets, etc., subject to the control of the local authorities; and no provision is incorporated in either of these acts which is not strictly incidental to the general object intended to be accomplished. They relate simply to the mode and manner in which the provisions of the several acts in relation to the location and removal of electrical wires and conductors shall be applied and enforced, and constitute but one subject of legislation. Neither is the act a local or private one within the meaning of the section referred to. Such was the decision of this court In re Railroad Co., 70 N. Y. 327, and In re Church, 92 N. Y. 1. This act is general in its terms, applying to all cities in the state of a certain class, and to every corporation carrying on a business requiring the use of electrical wires or conductors in such cities. That the number of such cities is limited or restricted does not make the bill a private or local one within the constitutional meaning and intent of these words, was expressly decided in the cases referred to. How many companies there are to which this bill applies, we have no means of determining; but the fact that a general law is passed regulating the operations of all such companies, in cities of the class referred to, does not constitute it a private or local bill, although it may happen that such companies are all located in one or more cities of the state.

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