In re the Gilbert Elevated Railway Co. , 16 N.Y. Sup. Ct. 303 ( 1876 )

Dahiels, J.

(dissenting):

The petitioner is a railroad corporation incorporated to construct and operate an elevated railway in certain streets of the city of New York, by chapter 885 of the Laws of 1872. (Yol. 2 of Laws of 1872,2179.) By section 3 of the act it was given all the rights, powers and privileges, and rendered subject to all the provisions of the act passed on the 2d of April, 1850, to authorize the formation of railroad corporations and to regulate the same. By the provisions of that act, as well as another contained in its own act of incorporation, the petitioner was empowered to acquire the title to land required for the purposes of its incorporation, or which should be necessary to enable it to construct, maintain and operate its-railroad. (Gen. Stats. N. Y., vol. 3, 621, § 14.) This right, by the plain import of the terms creating it, was limited to such lands as should be required for the purposes of its incorporation, or for constructing, maintaining or operating its railroad. And it consequently follows from the restriction so imposed, that if the railroad proposed to be constructed proves, for any reason, to be one which the company cannot erect and maintain, that it has no power to acquire the title to land over which it has been projected; for that cannot be necessary for it to obtain, which it has not the power afterwards to lawfully use for any of the purposes of its incorporation. It is insisted on behalf of the landowners that such a disability has been shown by way of answer to the petitioner’s application in this proceeding. If it has, that should be deemed sufficient to require a denial of the present motion.

By the act of its incorporation the petitioner was incorporated for a specific object, and that was to construct and maintain an elevated railway, “ to be operated by the plan known as ‘ Gilbert’s improved elevated railway,’ over, through and along streets, avenues, etc., of the city of New York, and to construct, maintain and operate the said tubular ways and railways by atmospheric power, compressed air, or other power.” (Laws of 1872, chap. 885, § 3.) That was the franchise and substantial grant of authority given to the corporation. And what was added beyond that was simply incidental and for the promotion of the object in that manner described; and that accorded with the principle of the Gilbert invention as it at that time existed. It was so understood by the legislature as well as the railway company ; for, wherever the kind of railway which was to be constructed was mentioned in the charter, it was designated as a tubular railway. This expression was the common one, adopted to describe the enterprise; and it will be found to be contained and repeated in the act whenever the railway is in any manner referred to. The same understanding pervades the amendatory acts of 1873 and 1874. In the first it is “the said railway,” and “ said road,” which has been made the subject of further legislation ; and in the last it has been mentioned as “ its tubular ways and railways,” that the company had been empowered to construct. (Laws of 1873, chap. 837; Id., 1874, chap. 275.) The description of the structure authorized by the charter was in no ways changed by the subsequent legislation ; it still continued to be the tubular “ways and railways,” known in 1872 as the Gilbert improved elevated railway, and nothing different from that. And .that railway was required to be “ substantially supported above the middle of the streets and avenues, by iron arches which shall span the same from curb to curb, the bases of which shall not, when practicable, be more than sixty feet apart, nor the arches less than fifty feet from each other.” (Laws of 1872, chap. 885, § 4.)

It has been urged that the mode of construction was not intended to be a limitation of the grant or franchise, but in the nature of a condition of its existence, which the State alone can take advantage of if the petitioner shall fail to perform it. But that view can hardly be sustained consistently with the charter, which in direct terms has authorized the company to construct and maintain only that form of railway which it has described.

The object the petitioner was empowered to accomplish was specific ; and the mode in which it was to be done was plainly designated. It was the grant of the authority as well as a description of the mode in which it was designed that it should be exercised. This construction is a more essential one to be applied and observed in such a case as the present one, than it would be if the company had been incorporated to construct a railway over its own land. There the plan might well be changed without detriment to the rights or privileges of others. But the petitioners railway was to be constructed upon a superstructure erected in the public streets and avenues of the chief city of the republic, having a large and active population, for whose convenience the streets themselves were opened and maintained; and as to such streets and avenues it is to be presumed that great legislative care would be observed, in providing the manner in which the railway should be constructed, in order to guard against their needless obstruction. If the system had been left to the discretion of the company, it might under such authority render the streets and avenues worthless for all ordinary purposes, and that possibility was a subject which required to be properly guarded against. The enterprise was a novel one, and to a great extent in the nature of an experiment; and it was undoubtedly intended that care should be observed in defining the grant of authority under which it should be tried. The language of the act indicates that the legislature was actuated by that purpose, and these considerations sustain the propriety of such a construction of it. The intention was to empower the company to construct a railway according to the invention mentioned, and that was a tubular railway, to be placed on the superstructure mentioned in the act, which, in the judgment of the legislature, would not deprive the streets and avenues of the city of their ordinary utility.

But if it be conceded that the description of the manner in which the structure should be made was simply in the nature of a condition, the non-observance of which could only be taken advantage of by the State, the case would not be essentially different in this respect; for even as a condition it would indicate the manner in which it was intended by the legislature that the railway should be built; and if it were not built according to the plan prescribed by the condition, it would still be as much a different road from that mentioned in the charter of the company, as it would be if the description given were a limitation upon the power of the company. In either case it would be equally the intention of the law, that the structure should conform to the description given of it. And making it differently would be the construction of a different device, as much in the one case as it possibly could be in the other. It was intended by the act that the structure should be what the legislature took pains to describe and declare; and the company cannot lawfully make a different one under the authority conferred by the charter, even if the limitation upon its power has been given the form of a condition merely. The court, certainly, should not sanction by its authority a plain departure from what may be regarded as duly a legislative condition.

It was on the improved plan then invented and existing that it was declared that this railway should be made. That was plainly expressed in the act; and to that the company should be restricted in the construction of its authority. If a different mode of construction is to be adopted the authority for it cannot be found in the charter nor any of its amendments. Its powers in that respect have not been extended, by the amendatory acts, beyond the original grant. And the railway, as that described it, is not the one which the petitioner now proposes to construct, and it consequently must be held to follow that its charter does not warrant or allow its present enterprise.

The stipulation entered into on behalf of the petitioner shows the two enterprises to be essentially different. According to that, “no tubular ways for the transmission of cars and passengers by the application of atmospheric power, compressed air or other power, are intended to be constructed.” And that involves an abandonment of the railway described in terms in the petitioner’s charter. For the road, as it is now proposed to build it, “ is to be, in all respects, constructed and operated in conformity with the conditions and restrictions prescribed by the commissioners of rapid transit.” These commissioners were provided for and appointed under the authority of chapter 606 of the Laws of 1875. This is a general law prescribing the terms on which elevated railways may be constructed and operated in all portions of the State. And the authority created by it is ample for the inclusion of all feasible plans which may be found promotive of that end. And they are to be devised and adopted only by the commissioners, whose appointment it has provided for. (Laws of 18Y5, 741, chap. 606, § 5.) It is according to their plan, which differs very materially from that of the petitioner’s charter, and in no way includes a tubular railway, that it is now proposed to construct the railway. That is clearly indicated from the description given of the design itself by the commissioners, and it is implied by the terms of the stipulation already referred to. Indeed, if there had been no material difference intended, the petitioner would have been in-no need of the authority of the commissioners acting under the act of 1875. It was because it was necessary to avail itself of the authority of that act that it was induced to adopt their plan.

And to empower it to do that the petitioner itself, by resolution, declared that its structure should “be an elevated double track, elevated railway, to be constructed, in all substantial respects, in accordance with plans and specifications to be made and agreed to by the president of- this company and the said board of commissioners.” And that board required the railroad of the company to be constructed “ with such modifications of the original plans, upon which said company was by its charter authorized to construct the same, as to make the same correspond with the plan or plans, and mode of construction, which shall hereafter, in due course, be decided upon by this board of commissioners for said route.” And in prescribing that mode the company was required by them, to so modify the plan of structure which said company is now authorized to construct, as to conform to the specifications and requirements following; and that was followed by a minute and explicit description of the plan adopted for the superstructure, as well as the railway, differing materially from that described in the charter of the company. It was clearly so understood by the commissioners, who, in their report of the arrangements made with the petitioners, stated that the structure that it was required by its “ charter to build was so costly, that after three years of effort the company had been unable to procure the money to erect it; ” and that it was of the opinion that -if it should be required “ to build upon their route a structure sufficient for the public wants, but less costly than that originally intended, they would be enabled to carry on the work.” And the commissioners.add that they “were satisfied that the location upon their chartered routes of rapid transit roads under this act,” which was the act of 1875, “ accompanied by the conditions above mentioned, would, humanly speakings render success certain.”

This evidence that the petitioner is not proceeding, and does not propose to proceed with this enterprise, under or according to the requirements of its chartered authority, is entirely decisive of the fact. The railway now designed to be constructed, and for the support of which the land desired is required, is not the one described in its charter, but that which has been devised by the commissioners acting under the authority alone of the act of 1815.

In constructing such a railway as that, the petitioners will not proceed under its act of incorporation or either of the amendatory acts, but under the authority of the law of 1875; and before it can be permitted to exercise that authority it must comply with the constitutional provision under which it was enacted. That provision declared that “ no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value [of] the property bounded on, and the consent, also, of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad, be first obtained, or, in case the consent of such property owners cannot be obtained, the General Term of the Supreme Court in the district in which it is proposed to be constructed may, upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such road ought to be constructed or operated ; and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.” (Art. 3, § 18, of the Constitution as amended.) This provision, it is conceded on the part of the petitioner, has in neither respect been complied with by it. And as no law afterwards enacted upon this subject could provide for a street railway and at the same time dispense with that compliance, it would seem to follow, very clearly, that the petitioner lias no legal right to construct or maintain the railway as that is now designed to be done. The Constitution deprived the legislature of the power to authorize the construction of a street railroad of any description on any different terms than those expressed by this provision. By availing itself of the privileges secured by the act of 1875, the petitioner’s franchise has become qualified and subordinated to that extent to this prohibition of the Constitution. It proposes to build a railway which it could not construct without the assistance and authority of that act, and under the express terms of the Constitution, that can only be done by first procuring the assent of one-half in value of the property owners on the street, or the determination of commissioners that it ought to be constructed; without one or the other it cannot avail itself of the privilege to build a railway, created by a law which was only properly enacted under and subject to the restraints of this constitutional authority.

Beyond that, the act, in terms, imposes the same restraint upon the enjoyment of this corporate privilege by means of its own provisions. And while corporations then created and existing for the construction and operation of elevated railways in any portion of the State were empowered to proceed under its authority, the right to do so was rendered subordinate to the requirement of the constitutional restraint previously imposed on street railways afterwards to be provided for. The language of the act affecting this subject declared that “ whenever the route or routes determined upon by said commissioners coincide with the route or routes covered by the charter of an existing corporation, formed for the purpose provided for by this act, provided that said corporation has not forfeited its charter or failed to comply with the provisions thereof requiring the construction of a road or roads within the time prescribed by its charter, such corporation shall have the Wee power to construct and operate such railway or railways upon fulfillment of the requirements and conditions imposed by said commissioners, as a corporation specially formed under this act.” (Laws of 1875, 750, chap. 606, § 36.)

It was no part of the purpose of this provision to relieve the existing corporations from the restraints of the constitutional provisions upon enterprises of this description afterwards authorized, but simply to entitle eacli of them to the privilege under it, which a new corporation formed for the construction of an elevated railway would have by virtue of its enactment. The petitioner’s route did coincide with one of the routes determined upon by the commissioners’ proceeding under the act, and, accordingly, it was entitled to the privilege-mentioned in the section already referred to, which secured to it the right to construct the railway under its provisions. But it was not designed, and the language used will not admit of the construction, that it could do that without complying, by means of one of the alternatives mentioned, with this provision of the Constitution. That is entirely evident from the language employed in the act. It was not used in such a manner as to give to any existing corporation the unqualified right to construct and operate an elevated railway. In view of the prohibition of the Constitution, the legislature could not have supposed that its powers extended so far as to allow the creation of such a franchise. And there is direct evidence of the existence of an intention to make no such provision. What the legislature did by this section was to secure to the existing corporation, found in possession of the franchise mentioned, the like power to construct and operate such railway as a corporation specially formed under the act. And that was a qualified power, conditional upon the assent of the owners of one-half in value of the property bounded on the streets and avenues to be used, or the favorable determination of the commissioners to be appointed by the court, that the railway ought to be constructed or operated. (Laws of 1875, 740, 741, chap. 606, § 4.) The corporations formed under that act were, by clear and explicit terms, required to procure the observance of one or the other of those alternatives before their right to construct and operate an elevated railway could become complete. And the like power which was all that was given to the petitioner, depended upon the observance of the same condition. It could not otherwise be a like power. But without that obligation it would be unconditional and unqualified by this limitation. That would be a more extended power than any corporation formed under the act could, by any possibility enjoy, and which it was not the design of the law to create. What was intended was, that an existing corporation should be accepted as having only the same authority as one formed under this act. In the former case tbe corporation was already created, which in the latter the legislature had provided should be organized. And its existence was accepted as a practical compliance with those provisions, declaring the manner in which a new. corporation for this object might be formed. And upon such a corporation the privilege of constructing and operating such an elevated railway as should be devised by the commissioners, acting for that purpose, was conferred. And that was no other or different railway than that which could be constructed after the plans of the commissioners.. (Laws of 1875, 741, chap. 606, § 5.) The newly formed, as well as the previously existing corporations, were invested in this respect with an identical authority. It was a like' franchise and power to all, and as it could not be exercised in one class of cases without one of the forms of consent mentioned in the Constitution, it is very clear that the same disability was designed to affect the others as well. ' Before the petitioner can construct the railway as that is now proposed to be done by it, which is conformably to the plans of the commissioners, and not according to the description and design of its own charter, the contemplated consent must be secured by it, and as that has not been done, the present application should be denied, without considering the other objections made in behalf of the owners of the land.

Application for commissioners granted, commissioners to be selected on two days’ notice.