People Ex Rel. Municipal Gas Co. v. Rice , 138 N.Y. 151 ( 1893 )

The relator took proceedings to enlarge and extend its corporate powers and business so as to enable it to manufacture and use electricity for producing light, heat and power. It is conceded that the proceedings were regular if power exists for the accomplishment of that object in the manner attempted. An amended certificate embodying the powers and objects sought to be attained was presented to the secretary of state who declined to file the same. The application was then made for a peremptory writ of mandamus requiring the secretary to file the certificate, from the order denying which this appeal was taken. The relator was incorporated as a gas company under chapter 37 of the Laws of 1848, and its business originally was confined to the manufacture of gas. The corporation was subsequently authorized by chapter 512 of the Laws of 1879, and chapter 73 of the Laws of 1882, to use electricity for illuminating purposes, and by the same statute, a corporation formed for the purpose of producing electricity for light, heat and power, was authorized to use it for lighting streets, parks, dwellings, etc., and to make, use, lease or sell apparatus for generating, and to lay and use suitable conductors for the same. So that since the enactment of these statutes a gas company has power to use electricity for illuminating purposes.

Chapter 688 of the Laws of 1892 (§ 32) authorizes any stock corporation, theretofore or thereafter organized under any general or special law, to amend its certificate and extend or alter its business and powers in two cases: (1) The purpose and powers of such corporation may be so enlarged or extended, as to include any purpose and powers which, at the time of such extension, had been conferred by law upon corporations engaged in a business of the same general character. (2) They can also be enlarged or extended to embrace any purposes or powers which might properly be included in the certificate for the formation of a corporation of the same general character under any general law. When the amended certificate was presented to the secretary of state section 60 of art. 6, chapter 566, of the Laws of 1890 was in force, which provides for the formation of corporations for manufacturing and supplying gas, and also for the manufacture and use of electricity for producing light, heat or power. If under that section either or both the objects may properly be included in the certificate for the formation of the corporations therein mentioned, then there was a general law authorizing the creation of corporations possessing all the powers that the relator sought to acquire, and the certificate should have been filed. The material parts of the section of the statute last referred to read as follows:

"Three or more persons may become a corporation for manufacturing and supplying gas for lighting the streets and public and private buildings of any city, village or town, etc., or for manufacturing electricity for producing light, heat or power; and in lighting the streets, avenues, public parks and places and public and private buildings of cities," etc.

The learned attorney-general insists that the objects and purposes of the corporations to be formed under this section are so separated by the disjunctive "or," that the certificate cannot combine all the powers or purposes therein specified. That a gas company must still be organized as before, and so with a company for producing electricity for light, heat or power. They must still be organized for one purpose or the other, and both purposes cannot be combined in the same certificate, and this construction, he claims, is supported by the explanatory words of section 162, chapter 566 of the Laws of 1890, which reads as follows:

"The provisions of this chapter, so far as they are substantially the same as those of laws existing on April 30, 1891, shall be construed as a continuation of such laws, modified or amended according to the language employed in this chapter, and not as new enactments; and references in laws not repealed to provisions of laws incorporated into this chapter and repealed shall be construed as applying to the provisions so incorporated, and nothing in this chapter shall be construed to amend or repeal any provisions of the Criminal or Penal Code."

The chapter to which reference is here made was no doubt intended as a revision of pre-existing laws. But this section indicates that something more was also intended. The laws so revised were modified or amended according to the language employed. It is quite plain when all the provisions of the chapter relating to gas and electric companies are considered, that the legislature, in adopting the revision, intended to permit such corporations to amend the certificate in such a way as to authorize them to exercise powers and to enlarge the purposes and objects of the corporation beyond the limit within which they were restricted before.

The words "and" and "or," when used in a statute, are convertible as the sense may require. The substitution of the one for the other is frequently resorted to in the interpretation of statutes when the evident intention of the lawmakers requires it. (Sedgwick on Stat. Con. Law [2d ed.], Pomeroy's note, 371; Hardcastle's Con., etc., of Stat. Law, appendix, 575, and cases cited; Wilberforce Statute Law, 130.)

We think that the legislature, in enacting section sixty of art. six of chapter 566 of the Laws of 1890, intended to authorize the creation of corporations empowered to exercise one or more of the powers and for one or more of the purposes or objects therein specified. The certificate to be filed may now include all the purposes or powers specified in the section, and thus both the powers of a gas company and an electric light company, as they existed and might be exercised before the revision of the statute, may now be combined in one corporation, and expressed in one certificate. This conclusion is strengthened by other considerations. We have seen that prior to the revision of the statutes, a gas company could exercise the powers of an electric light company, at least so far as to manufacture and use electricity for illuminating purposes, but if the contention of the learned attorney-general be correct that privilege has been eliminated from the law as it now exists, as there is no way that a corporation, created as a gas company, can exercise such a power except by substituting the word "and" for the word "or" in the statute. It must be manifest that the legislature in passing the revision did not intend to curtail the powers or privileges of such corporations, and a construction of the statute which would lead to such a result should be avoided. One of the additional powers which the relator seeks to acquire by the amended certificate is to exchange its stock for that of an electric light company named. In other words, it was sought to merge the franchises and business of the two companies into one. By chapter 691 of the Laws of 1892 (§ 8) any two or more corporations organized under the laws of this state for the purpose of carrying on any kind of business of the same or of a similar nature which a corporation organized under that chapter might carry on, may consolidate into a single corporation as therein provided. (Laws 1890, chap. 566, § 61, sub. 3.) It is conceded that the relator may obtain the desired franchise in that way under a general law of the state, and while this consideration might not be deemed controlling in all cases of this kind, we see no reason in this case for giving the statute authorizing this class of corporations to be organized a construction that would deny to them the power to acquire by an original or amended certificate what it is admitted that they may obtain by consolidation. The business of a gas company and that of an electric light company is of the same general character within the meaning of the statute, and we think that it was the intention to permit the one to exercise the powers of the other whenever it was desired, by so stating in the certificate; or in the case of an old corporation by filing an amended certificate. For these reasons we think the relator was entitled to have the amended certificate filed.

The order appealed from should be reversed, and the application granted.

All concur, EARL, J., in result.

Ordered accordingly.