City of New York v. Brooklyn City Railroad , 191 N.Y.S. 20 ( 1921 )

Mills, J. (dissenting):

The appellant’s sole contention here is that the plaintiff, the city, has no right to operate a railroad over the Williams-burg bridge, and, therefore, has not the incidental right to any such crossing of appellant’s tracks. Appellant does not dispute the incidental right if the main one exists; but challenges the existence of the latter. Its such contention is based upon three subsidiary ones, which are as follows: First. The plaintiff has no franchise or authority to operate such a railroad; in other words, the statutes applicable to that bridge should not be construed as purporting to grant such authority. Second. If those statutes are to be so construed, they should be held unconstitutional as violating section 10 of article 8 of the State Constitution, in that the operation of such a railroad would not be a “ city purpose ” within the meaning of that constitutional restriction. Third. Even if the said statutes should be so construed, and should be upheld as constitutional,' the city should be regarded as a common carrier in respect to that operation, and so held subject to section 9 of the Bailroad Law, and section 53 of the Public Service Commissions Law;^* and the city has not obtained the certificate of convenience and necessity required by the one section or the approval of the Commission required by the other — until it has obtained both it cannot avail itself of such legislative authority, even if that exists.

It appears that the city, before making the initial application herein, did apply to the Public Service Commission for a certificate of convenience and necessity as to the said spur or side track under that section 9; but that its application was refused by the Commission with an opinion which appears in the record. The gist of that opinion is that anyway, for the operation of such a spur to be used merely to reach a storage barn, such a certificate is unnecessary, even if one be necessary for the main operation over the bridge. Therefore, the Commission denied that application without passing upon the merits whether or not such a certificate is needed for the latter purpose. Upon the argument, I understood the learned counsel for the appellant to practically concede the correctness of the view taken by the Commission, at least so far as to admit that, if the respondent be fully authorized to operate the main railroad over the bridge, no special certificate is needed for the proposed spur. Such appears to have been held in effect in Brooklyn Heights R. R. Co. v. City of Brooklyn (152 N. Y. 244).

Therefore, the vital questions presented to us for consideration and determination are these three:

First. Is there any legislative authority to the city to operate that railroad?

Second. If there be such purported authority, is such operation for a “ city purpose ” in the constitutional sense of that term?

Third. For such operation does the city require the said certificate of convenience and necessity, or said approval, or both?.

After very careful consideration and full discussion by the sitting members of this court, a majority of them have reached the conclusion that the first of those questions should be answered in the negative, and the third in the affirmative; and that, therefore, the corresponding objections and contentions of appellant must be sustained. I am unable to concur in that view, and as I have concluded that neither of appellant’s objections or contentions is well made, I find myself compelled to dissent from the majority opinion and the decision about to be rendered.

As to the first of the questions above stated, the following is the material statutory situation. The construction of the bridge was originally authorized by chapter 789 of the Laws of 1895. That act (§ 7) provided that, after its completion, the bridge should be a public highway, and that the care thereof should be vested in the trustees of the New York and Brooklyn bridge, who should possess in relation to it the same powers as were vested in them in relation to the New York and Brooklyn bridge. At that time the trustees of the last-named bridge, commonly known as the East River bridge, were by statute expressly authorized to operate a railroad over it, namely, “ The said trustees * * * may operate and authorize to be operated, a railroad or railroads over said bridge, and fix the fare to be paid by any passenger upon any railroad operated by them.” (Laws of 1882, chap. 410, § 1980.) By chapter 512 of the Laws of 1896 the commissioners under the Williamsburg Bridge Act,, the one first cited above, were vested with the care, management and control of the bridge, “ who shall possess in relation thereto like powers as are at the time of the passage of this act vested in the trustees of the New York and Brooklyn bridge in relation to the said New York and Brooklyn bridge.” (Laws of 1895, chap. 789, § 7, as amd. by Laws of 1896, chap. 612.) This court had held that the power, conferred by the act of 1895 upon the commissioners, to contract with any railroad company to operate a railroad across the bridge must be exercised during the construction period (Gordon v. Strong, 3 App. Div. 395; 15 id. 519; affd., without opinion, 160 N. Y. 659); and it may be surmised that that amendatory act of 1896 was passed to meet the effect of that decision. Upon and after the creation of Greater New York, the Legislature, by several apt statutes, abolished the said commissioners and the said trustees and invested their powers with reference to the said bridges in the “ commissioner of bridges,” an official provided by the charter of the greater city. By a later enactment, viz., chapter 528 of the Laws of 1916, the charter was further amended so as to confer upon the “ commissioner of plant and structures ” all the powers then vested in the “ commissioner of bridges.” The former official is now assuming to operate a railroad over this, the Williamsburg bridge, which has previously been operated by various railroad corporations under contract with the city authorities or representatives. The validity of those contracts was upheld in several cases. (Gordon v. Strong, supra; Hearst v. Berri, 24 App. Div. 73; affd., sub nom. Hearst v. Shea, 156 N. Y. 169; Schinzel v. Best, 45 Misc. Rep. 455; affd., upon opinion of Maddox, J., 109 App. Div. 917.)

Upon the above review it seems to me entirely clear that the city has express purported statutory authority to operate the railroad in question. Therefore, I quite agree with the learned justice at Special Term in his conclusion to that effect.

It is to be noted that section 595 of the present charter, in its provision abolishing the board of commissioners of the Williamsburg bridge, is absolutely broad and not restricted by any proviso as is the corresponding provision in section 601 as to the New. York and Brooklyn bridge. The provision as to the former bridge, in section 595,^* is, “ and all its powers and duties are hereby devolved upon the commissioner of plant and structures of the city of New York.” I recognize, of course, that if the provisions of the section as to the powers and duties of the commissioner of plant and structures expressly excluded the operation of this railroad, that would have to prevail over and limit the general grant or transfer of the powers of the former commissioners; but I find no such express exclusion. By parity of the reasoning of the majority opinion .we would, as it seems to me, have to hold that the commissioner of plant and structures now has no power whatever over the railroad upon this bridge, not even to make a contract with the" defendant for its operation. If he has the power to make such contract, he has by the same authority and derivation the power to operate. The conclusion of that majority opinion that “ Clearly this [meaning that broad devolution upon the named city official of all the powers and duties of the board of commissioners of this bridge] was far from conferring a railroad franchise ” seems to me entirely unwarranted, if it be true, as it appears to be, that that board, just before being abolished, had the express statutory power which constituted such a franchise. It had that by express terms, not merely by implication. The subject clause quoted in that opinion from section 601 of the charter is therein expressly limited to the New York and Brooklyn bridge, and not, as the language of that opinion would seem to imply, extended to any other bridge.

As to the second question, which is in substance whether or not the provision of the statutes purporting to grant to the city that authority is constitutional as being to effectuate 1 a city purpose, there appears to be very little direct judicial authority. The decisions above cited expressly hold merely the validity of the purported power to contract with others for the operation of the railroad. The opinion of Mr. Justice Maddox in Schinzel v. Best (supra), which was adopted by this court in determining the appeal, declared in exact terms that the commissioners did have the power to operate or contract for the operation of a railroad over this bridge. While it is technically true that the expression as to operation was merely a dictum, yet the matter was of such great importance that I think it may well be presumed that if this court had doubted the correctness of that part of the opinion at Special Term the justices here would, in their memorandum of decision, have entered a caveat to that extent. Our attention is called by the learned counsel for the appellant to the case of Dilluvio v. City of New York (73 Misc. Rep. 122), wherein our former associate, Mr. Justice Stapleton, at Trial Term held that the city of New York had no authority-to operate a railroad over the Queensboro bridge. The reasoning of his opinion, however, is based upon the proposition that as to that bridge no such power was given to the city or to any of its officials by any statute. The fair implication from the trend of the opinion is that, if the learned justice had found such purported power as to that bridge, he would have held it valid.

To my mind the validity of the statutory provision authorizing the city to operate this railroad is fairly within the principle and effect of the decision in. Sun Publishing Assn. v. Mayor (152 N. Y. 257), which upheld the validity of the Rapid Transit Acts in purporting to authorize the city of New York to construct subways and to lease them to railroad corporations for operation, and in certain contingencies to operate them itself. The majority opinion of the Court of Appeals held both that a railroad within the limits of a city is for a “ city purpose ” within the constitutional sense of that term, and that, although by the acts the city was to devote its credit to raising money for the construction of the subways and subsequently to lease them out to private corporations for periods of not less than thirty-five nor more than fifty years for operation, yet such provision was not to be regarded as a mere attempt to evade the constitutional restriction against a city loaning its money or credit to “ any individual, association or corporation.” The late Judge O’Brien, with that strong and devoted loyalty to all constitutional restrictions for which he was noted, dissented in one of his characteristic opinions, in which he averred that that provision was a plain attempt to evade that most salutary restriction of the State Constitution, and that it should not be upheld by the court. It would be useless to say that even at this late day, upon rereading those opinions, the reasoning of the dissenting one seems more convincing than that of the majority. However that may be, the conclusions of the latter must now be regarded as the law governing us. In short, without prosecuting the discussion further, I think that the operation of a railroad across a bridge over a tidal stream which divides a city is quite as much a thing for a city purpose as the maintenance of railroads in the streets of the city.

It may be added that the conclusions thus far reached herein do not conflict with our decision or opinion in Brooklyn City Railroad Co. v. Whalen (191 App. Div. 737; recently affirmed by the Court of Appeals without opinion, 229 N. Y. 570). In that case we held merely that without express statutory authority the city has no power to operate bus lines, and that no such authority exists. It is at least of passing interest to note that in that case we declined to apply the doctrine of emergency which shortly thereafter we held applicable and controlling in reference to the recent rent legislation. (See People ex rel. Rayland Realty Co., Inc., v. Fagan, 194 App. Div. 185; affd., 230 N. Y. 653. See, also, Marcus Brown Co. v. Feldman, 256 U. S. 170.)

As to the third and last question, whether or not a certificate of convenience and necessity provided for by section 9 of the Railroad Law and of approval according to section 53 of the Public Service Commissions Law must be secured by the city before commencing operation, I conclude that compliance with those statutory provisions is unnecessary, because the Legislature in authorizing the city to operate this particular railroad has itself passed upon those questions as to this railroad. It would indeed be a unique situation if, upon application made to it, the Commission should find the operation of the railroad, which the Legislature, its own creator, has authorized by express enactment, to be neither convenient nor necessary. While there appears to be no decision of the courts passing directly upon the question, this conclusion would seem to be in harmony with the general principle that a direct special enactment governing the subject-matter will prevail over a general enactment. The learned counsel for the respondent relies upon the case of Village of Fort Edward v. Hudson Valley R. Co. (192 N. Y. 139) as authority in favor of the respondent upon this question. That case, however, does not bear directly upon it. The question there directly involved and decided was whether or not it was necessary to obtain the consent of the Public Service Commission under said section 53 of the former Public Service Commissions Law (Laws of 1907, chap. 429) before two connecting railroads could unite in forming the necessary intersections and connections. The reasoning of the opinion there is that, inasmuch as the Legislature had commanded the connections to be made, it had itself, by necessary implication, determined the question of convenience and necessity; and that, therefore, the general provisions of the statutes in that respect did not apply. In an earlier decision (Matter of Stillwater & M. St. R. Co., 171 N. Y. 589) the court had held the connection mandatory, and of course it could hardly consistently hold that its own decision was subject to the approval of the Public Service Commission. I recognize that there may be a substantial difference between that case of a legislative command and this of a mere legislative specific authority. Still the action of the Commission in any event is only to confer or to aid in conferring an authority. Our decision in Brooklyn City Railroad Co. v. Whalen (supra) did not attempt to decide this question. Indeed our opinion (191 App. Div. 744) expressly reserved it in these words: “ Whether that requirement [for a certificate of convenience and necessity] would apply to municipal operation is irrelevant to this inquiry.” It may moreover be doubted whether or not the terms of said section 9 of the Railroad Law and those of said section 53 of the Public Service Commissions Law apply to a municipal corporation authorized by statute to operate a railroad. Certainly such a municipality is not a “railroad corporation” within that term used in section 53, and it may well be that the term “ common carrier ” in that section is controlled by its association with the preceding term “ no railroad corporation, street railroad corporation (or common carrier),” so as to limit its otherwise broad and-general sense to private parties and not to include a municipality. Indeed, I am impressed that that is the correct view of the matter.

Upon the whole, therefore, I conclude that the respondent does not need either the said certificate or approval as a condition precedent to its operation of the railroad over the bridge.

It may be true, as claimed by the learned counsel for the appellant, that it would be for the greater and better public interest for the city, to continue to contract out the operation of that railroad, because in that event the public, by the continuance of the former system of transfers, would secure larger and cheaper facilities of travel; but that is a question of public policy with which we have nothing to do here. It belongs and appeals to the discretion of the Legislature and the city authorities — the one in conferring and the other in exercising the power.

I, therefore, dissent, and vote to affirm each order appealed from, with ten dollars costs and disbursements.

* Since amd. by Laws of 1921, chap. 134, and short title of act changed to Public Service Commission Law.— [Rep.

* Since amd. by Laws of 1921, chap. 170.— [Rep.