Sun Printing & Publ'g Ass'n v. Mayor, Etc., of City of New York

• Decision Date: 23 March 1897
• Citation: 46 N.E. 499,152 N.Y. 257
• Parties: SUN PRINTING & PUBLISHING ASS'N et al. v. MAYOR, ETC., OMF CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 257

46 N.E. 499

SUN PRINTING & PUBLISHING ASS'N et al.

v.MAYOR, ETC., OMF CITY OF NEW YORK et al.

Court of Appeals of New York.

March 23, 1897.

Appeal from supreme court, appellate division, First department.

Action by the Sun Printing & Publishing Association and others against the mayor, aldermen, and commonalty of the city of New York and others. From a judgment of the appellate division (40 N. Y. Supp. 607) affirming a judgment entered on a decision dismissing the complaint, plaintiffs appeal. Affirmed.

O'Brien and Vann, JJ., dissenting.

Franklin Bartlett, for appellants.

Edward M. Shepard and Albert B. Boardman, for respondents.

HAIGHT, J.

This action was brought to restrain the rapid transit commissioners, the mayor, aldermen, and commonalty, and other officers of the city of New York, from incurring any debt or obligation of the city, under Laws 1891, c. 4, as amended by Laws 1892, cc. 102, 556, Laws 1894, cc. 528, 752, and Laws 1895, c. 519, commonly known as the ‘Rapid Transit Acts.’ The acts, in brief, create a rapid transit commission, and provide that the commissioners shall, in case they deem it necessary, and upon the written request of the local authorities, proceed to locate a route and provide the plans and specifications for a railway through the city; that, after they shall have so located the route and provided the plans upon which the railway should be built, they may sell at public auction the right, privilege, and franchise to construct, maintain, and operate such railway; or, if the people shall determine by vote of a majority of the electors that such railway shall be constructed for and at the expense of the city, then the commissioners shall enter into a contract, with any person, firm, or corporation best qualified in their opinion to fulfill and carry out the contract, for the construction of such road upon the route and in accordance with the plans and specifications adopted. In case the road shall be built at the expense of the municipality, the officers of the city, upon requisition of the commissioners, are required to issue the bonds of the city, to the amount of $55,000,000, payable in gold, with interest not to exceed 3 1/2 per cent., free from taxes, with which to pay for such construction. It is further provided that the commissioners may also enter into a contract with the contractors for the building of the road, for the lease and operation of the same for a period not less than 35 years nor more than 50 years, at a rental agreed upon, to be not less than the interest on the sum paid by the city for the construction and 1 per cent. in addition, and that the same may be renewed from time to time, as the lease shall expire, upon such terms as shall be agreed upon; that in case of default in paying the annual rental provided for, or in case of the failure or neglect on the part of the contractors to faithfully observe and fulfill the requirements of the contract, the city, by its rapid transit commissioners, may take possession of the road and equipments, and, as the agents of the contractors, either maintain and operate the road at their expense, and upon their liability, or enter into a new contract with other persons for its operation. The acts also provide that, in case the road shall be constructed by the municipality, it shall be and remain the absolute property of the city, and shall be deemed to be a part of the public streets and highways of the city, to be used and enjoyed by the public, upon the payment of such fares and tolls, and subject to such reasonable rules and regulations, as may be imposed and provided by the board or rapid transit commissioners.

Pursuant to the provisions of these acts, the commissioners entered upon their duties, and upon the request of the authorities of the city of New York located a railroad to be built under the streets through the main portions of the city, and then tried to induce private capitalists to undertake its construction. Failing in this, they submitted to the voters of the city the question as to whether the road should be constructed at the expense of the city, and a considerable majority thereof answered in the affirmative. It is claimed that these acts are violative of the constitution; that they are pernicious, wantonly extravagant, and dangerous; that they tend to foster socialism and paternalism, and are a departure from our principles of government which has never before found favor. Upon this review we can only deal with the constitutional questions presented, but it will at once be seen that they are of grave importance, farreaching in consequences, and not free from difficulty. We have given to their consideration careful study and serious reflection, hoping to reach a result that will afford necessary relief to the people of the city, and at the same time preserve the general policy of our system of government.

The constitution (article 8, § 10), among other things, provides that: ‘Nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes.’ Is the building of the proposed railroad a ‘city purpose,’ within the meaning of this provision? We are aware that the expenditures of our city governments have become enormous, and that appropriations have been made for a great variety of purposes, many of which may be open to criticism, and that a complete definition of ‘a city purpose’ may not be possible, in view of the fact that reasons may arise which we are unable to foresee or now consider. The authorities, in so far as they have spoken upon the subject, have only attempted a definition as to certain specified purposes. People v. Kelly, 76 N. Y. 475, 487;In re Mayor, etc., of New York, 99 N. Y. 569, 585,2 N. E. 642;In re Niagara Falls & W. Ry. Co., 108 N. Y. 375, 15 N. E. 429;Hequembourg v. City of Dunkirk, 49 Hun, 550, 2 N. Y. Supp. 447. We shall not now attempt a definition, except in general terms, further than is necessary to determine the meaning of the acts which we have under review. Generally, we think, the purpose must be necessary for the common good and general welfare of the people of the municipality, sanctioned by its citizens, public in character, and authorized by the legislature. Common highways have always been regarded as under the special care, supervision, and control of municipal governments, upon which devolves the duty of keeping them in suitable repair, as well as the duty of providing sufficient ways to satisfy the requirements and answer the convenience of the public. Highways are not only necessary for the welfare and convenience of the people, but are required by them. They are public in character, and authorized by the legislature. Under the civil law they belonged to the king; under the common law the king and his subjects have a right of passage over them, while the owner of the abutting land may possess the fee and the easements of light, air, and access. In this state the common law is in force, but the sovereign power rests in the people. Highways have existed from earliest times. They were constructed for the passage of persons and the carriage of goods. They may consist of a path through a wilderness, a pass over a mountain, or a broad street in a populous city. Formerly, the chief transportation of freight and passengers on land was made with teams of animals. This necessitated improved ways, such as turnpikes and plank roads. In recent years railroads have been constructed and come into general use, so that now a very large percentage of the transportation of the country is done upon these roads. This is evident from the fact that in the year 1893 465,000,000 persons were transported over the railroads in the city of New York. These roads in this city are operated upon the streets. Some are elevated others are surface roads. They are all owned by individuals or corporations, but their service is public. They are not common highways in the sense that they are under the care and management of the municipality; but as to their purpose, which is the transportation of persons and property for the public, they are as distinctly highways as the ordinary street. It is true that a uniform fee is charged for persons taking passage over them, but this does not differentiate them from other highways. Tolls were charged on turnpikes and plank roads, and yet they were public highways. Nor does the fact that the road is occupied by rails in such a manner as to prohibit its use by teams and persons traveling on foot distinguish it from others, for highways are often constructed for different uses. There are ways for pedestrians, others for teams and vehicles, and still others for equestrians. If a highway may be constructed for these different uses, why may it not be constructed with rails upon which the millions may travel? In the case of Niagara Falls & W. Ry. Co., supra, Andrews, J., in delivering the opinion of the court, says: ‘The ground upon which private property may be taken for railroad uses without the consent of the owner is primarily that railroads are highways furnishing means of communication between different points, promoting traffic and commerce, facilitating exchanges; in a word, they are improved ways. In every form of government the duty of providing public ways is acknowledged to be a public duty.’ In Cooley, Const. Lim. p. *533, it is said that: ‘Every government is expected to make provision for the public ways, and for this purpose it may seize and appropriate lands. And as the wants of traffic and travel require facilities beyond those afforded by the common highway, over which any one may pass with his own vehicles, the government may establish the higher grade of highways, upon some of which only its own vehicles can be allowed to run, while others, differently constructed, shall be open to use by all on payment of toll. The common highway is kept in...