City of New York v. . New York City Ry. Co.

The questions of law involved in these appeals are the same in each action, with one exception to be noted hereafter, and for convenience the discussion will be confined in form to the first action, although what is said is equally applicable to all, except as otherwise specified.

The charter of the defendant's predecessor was granted by a special statute entitled "An act to authorize the construction of a railroad in Seventh avenue, and in certain other streets and avenues of the city of New York," which became a law on the 17th of April, 1860, "notwithstanding the objections of the Governor." (L. 1860, ch. 513.) By the first section of that act, certain persons and their assigns were authorized to construct, operate and use the railroad in question upon certain designated streets and avenues. The second section thereof is as follows: "Said railroad shall be constructed on the most approved plan for the construction of city railroads, and shall be run as often as the convenience of passengers may require, and shall be subject to such reasonable rules and regulations in respect thereto as the common council of the city of New York may from time to time by ordinance prescribe and tothe payment to the city of the same license fee annually for eachcar run thereon as is now paid by other city railroads in saidcity; and the said persons and their assigns are hereby authorized to charge the same rate of fare for the conveyance of passengers on said railroad as is now charged by other city railroads in said city."

Upon the trial it was stipulated by the parties that on the 17th of April, 1860, the day when the franchise was granted, no city railroad in the city of New York paid car license fees computed "on the basis of each and every car run by it during the year," but all that paid any license at all paid "on the basis of the greatest number of cars in daily use by the company at the busiest season of the year," and that for over forty years prior to 1902, which is the first of the years now involved, the defendant and its lessors paid license fees for cars operated under said franchise upon the latter basis only. No question was raised as to the amount of the fee, and the only question litigated related to the proper method of computation. The defendant claimed that its obligation was to pay what other railroads were in fact paying when the act of 1860 was passed. The plaintiff claimed that the obligation of the defendant was not to pay what other city railroads were in fact paying at that date but what they ought to have paid according to law.

The main reliance of the city is an ordinance passed by the common council on the 31st of December, 1858, which, among other things, provided that "each and every passenger railroad car running in the city of New York below One Hundred and Twenty-fifth street shall pay into the city treasury the sum of fifty dollars annually, a certificate of the payment to be procured from the mayor," etc.

If we assume that the legislature had this ordinance in mind when it passed the act of 1860, should we further assume that it considered the letter thereof only, or the ordinance as then construed and enforced by the city authorities? Did it intend to exact a license fee for a car running but one day in a year to take the place of a disabled car; or a car borrowed for a special occasion, that had already paid the fee under another franchise; or for open cars substituted in the summer for the closed cars of winter? If the statute and ordinance are to be read together, both should receive a reasonable construction. It is insisted that it would not be reasonable to hold that all the cars whether run regularly or not were to be included, but those only that were used in conducting the ordinary business of the road as distinguished from those used rarely or for special purposes.

The charter, when accepted and acted upon by the company, became a contract and there was doubt as to what the contract meant. The terms of the grant were ambiguous. The legislature by the act of 1860 did not directly fix the fees, either as to amount or the method of computation, but referred to an existing fact and made that the basis of both. That fact was the amount paid for each car by other city railroads. Some of those roads paid no license fees, and others paid at the rate of fifty dollars per car for the greatest number in daily use during the busiest season. That was the rate actually paid, as contrasted with the theoretical rate of fifty dollars for "each and every passenger railroad car running in the city of New York," which the plaintiff now claims should have been paid by those other roads according to the ordinance.

Under these circumstances the practical construction of the parties by a uniform course of conduct under all administrations of the city government for more than forty years is of controlling importance. When the parties to a contract of doubtful meaning, guided by self-interest, enforce it for a long time by a consistent and uniform course of conduct, so as to give it a practical meaning, the courts will treat it as having that meaning, even if as an original proposition they might have given it a different one. (Woolsey v. Funke, 121 N Y 87, 92; Syms v. Mayor, etc., of N.Y. 105 N.Y. 153, 157;French v. Carhart, 1 N.Y. 96, 102; Livingston v. TenBroeck, 16 Johns. 14, 22.) So, when the meaning of a statute is doubtful, a practical construction by those for whom the law was enacted, or by public officers whose duty it was to enforce it, acquiesced in by all for a long period of time, in the language of Mr. Justice NELSON, "is entitled to great if not controlling influence." (Chicago v. Sheldon, 9 Wall. 50, 54.) In Peopleex rel. Williams v. Dayton (55 N.Y. 367) the practical construction of a doubtful statute by the legislative and executive departments, continued for many years, was held to have "controlling weight in its interpretation." To the same effect is the case of Power v. Village of Athens (99 N.Y. 592). It is held to have great weight even in the construction of the Constitution itself. (People v. Home Insurance Co., 92 N.Y. 328,337; People ex rel. Einsfeld v. Murray, 149 N.Y. 367,376.)

As the statute and the ordinance are not clear as to the method of computing the license fees, we give effect to the practical construction of the parties continued for so long a period and hold that the basis of the greatest number of cars in daily use at the busiest season of the year is the method that is now binding upon both parties. This was the position taken by the courts below, and we will not repeat their reasoning.

The circumstances under which the doctrine of practical construction is applied or withheld by the courts is well illustrated by comparing the three appeals now under consideration with the appeals in three other actions brought by the city against certain other railroad companies for the recovery of license fees. In those cases the doctrine was not applied by the courts below, and yet we are about to affirm the judgments rendered therein. (193 N.Y. 679, 680.) The controlling distinction between the two series of cases is that in the one there was an ambiguity in the grant and in the other there was not. In the first series we have tried to show in what respect the meaning was doubtful. In the second series the franchise provided in substance that each passenger car used on the road should be licensed every year by the mayor, and that the company should pay for such license such sum as the common council should thereafter determine. By an ordinance subsequently passed by the common council and approved by the mayor, the license fee was fixed at a certain sum for each and every passenger car run on the road during the year and it was further provided that a certificate of payment of the fee should be posted in each car used on the road under a penalty for operating any car unless such a certificate was posted therein. Under these circumstances it was held by the Supreme Court that notwithstanding the fact that said companies for many years had paid on the basis of the greatest number of cars run during the busiest season, the doctrine of practical construction should not be applied, because there was no room for its application, inasmuch as there was no ambiguity in the grant. We think that position is sound, for the doctrine is never applied unless the door is opened by an ambiguity, which is the foundation of the principle upon which the doctrine is founded. It goes without saying that the ambiguity must not be captious, but should be so serious as to raise a reasonable doubt in a fair mind, reflecting honestly upon the subject, before the principle of practical construction can be applied.

In the first series of cases, now under direct consideration with the exception of the third, the defendant pleaded among other defenses a former suit in bar, in that on the 25th of October, 1875, the plaintiff or its predecessor commenced an action against the Broadway and Seventh Avenue Railway Company, the defendant's ultimate lessor, to recover the amount alleged to be due for car license fees during the years 1864 to 1874, inclusive, under the statute and ordinance involved herein. It is alleged that the question at issue, litigated and determined therein, was upon what number of cars said company was each year obliged to pay car license fees and that the judgment rendered at the trial court and affirmed in this court was that said company should pay fees not on each and every car operated by it during each year, but on the greatest number of cars in daily use by it during the busiest season of the year. The record, which was read in evidence, sustained the plea in every respect and judgment was rendered accordingly. The parties to the present action are privies to the parties in that and the proof in that was similar in character to the proof in this. The method adopted of establishing the facts by stipulation, at least in the absence of fraud which is not claimed, does not differ in its effect from the method of establishing the facts by evidence introduced in the ordinary manner. The facts having been established, the court announced the law applicable to those facts, and even if the decision was wrong, it is as binding on the parties in this action as it was on the parties in that, upon the principle of res adjudicata. The law once laid down upon a specified state of facts is binding upon the parties to the controversy and their privies for all time. (Brown v. Mayor,etc., of N.Y., 66 N.Y. 385, 390; Williams v. Barkley,165 N.Y. 48.)

The judgments appealed from should be affirmed, with costs.

CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, WILLARD BARTLETT and CHASE, JJ., concur.

Judgments affirmed.