Page images

and 140 New York State Reporter corrected the unconstitutional feature thereof, allowing a substitute for the consent of the local authorities, but it made the provisions applicable only to corporations thereafter incorporated. Laws 1890, p. 1134, c. 565, $ 181, provided that the repeal by it of prior laws specified, including the act of 1880, should affect no right acquired prior to May 1, 1891. Section 16 was amended by Laws 1892, p. 1450, c. 702, and made retroactive, so as to include corporations organized under Laws 1850, p. 211, c. 140, and amendatory and supplemental acts and to conform with the act of 1880. Held, that an ordinance adopted December 31, 1890, permitting the con

struction of a tunnel under New York City streets, was valid. 5. SAME-LOCATION OF ROAD_TERMINI-STATUTORY PROVISIONS.

The provision in Laws 1850, p. 211, c. 140, that the certificate of incorporation of a rallroad should state the places from which and to which the road is to be constructed, is satisfied by naming the towns, villages,

or cities which are the termini of the road. 6. STREET RAILROAD8-STATUTES-CONSTRUCTION.

An underground tunnel railroad with a large portion of its route beneath East river, and much of it built on private property, is not a street railway within Laws 1886, p. 919, c. 642, re-enacted in Laws 1890, pp.

1108, 1109, c. 565, 88 91, 92, 93, relating to street surface railroads. 7. RAILROADS-CHARTER FORFEITURE BY LAPSE OF TIME.

Laws 1850, p. 211, c. 140, as amended by Laws 1867, p. 1903, c. 775, provide that the corporate existence of a railroad shall cease, if it shall not within 5 years after having filed its articles begin to construct its road and expend 10 per cent. of its capital, or shall not finish its road and put it in operation within 10 years. Held, that where articles were filed July 30, 1887, and 10 per cent. of the capital was expended by July 30, 1892, and the time for completion was extended by various acts to January 1, 1907, the company had not forfeited its corporate rights by


Laws 1870, p. 390, c. 137, $ 99, as amended by Laws 1871, p. 1242, c. 574, § 6, subd. 10, provided for the conveyance to New York City of certain land under water to be used for docks, etc., which was afterwards made. Subdivision 2 and subsequent acts give the department of docks exclusive control of all wharf property belonging to the city. Held, that the title being in the city, and it having power to convey it in so far as it was not needed for docks, etc., permits given by the board of aldermen to a railroad to construct a tunnel under the land at a depth of 75 feet below tidewater, the use being one which would not interfere with the use of the land for commerce, could not be revoked, after the railroad had acted on them and expended a large sum of money in constructing the tunnel, on the ground that the dock department's permission had not been obtained.

Appeal from Special Term, Queens County.

Action by the New York & Long Island Railroad Company against John H. O'Brien, as Fire Commissioner, and others. From a judgment granting a permanent injunction, defendants appeal. Affirmed.

See 100 N. Y. Supp. 316.


Terence Farley and Francis K. Pendleton (Theodore Connoly, of counsel), for appellants.

George W. Wickersham and Strong & Cadwalader (Morgan J. O'Brien, of counsel), for respondent.

CLARKE, J. The New York & Long Island Railroad Company, a corporation organized in 1887 for the purpose of constructing and operating a railroad from Long Island City, in the county of Queens, by a tunnel under the East river to New York City, in the county of New York, entered into a contract with the Degnon Contracting Company for the construction of its tunnel. Said contractor in August, 1905, upon giving four several bonds in the sum of $5,000 each, obtained from the fire commissioner of the city of New York four several licenses to use and keep explosives to be used in the prosecution of said work in conformity with the ordinance to regulate the sale, use, and transportation of explosives in the city of New York, adopted May 15, 1902, and approved by the mayor of said city May 19, 1902. In October and November, 1905, the superintendent of buildings of the borough of Manhattan issued to said Degnon Contracting Company four certain permits for temporary buildings to be used in connection with the construction of plaintiff's railroad and tunnel. On the 22d day of January, 1906, the inspector of combustibles of the fire department of the city of New York delivered to the Degnon Contracting Company a letter, stating:

"By direction of the corporation counsel, your permits have this day been revoked and you will discontinue all blasting operations and cause to be removed from your various magazines in Long Island City, Man-of-War Man's Reef, 42nd. street east of 1st avenue and 42d street west of 3rd avenue, all explosive material.”

The ordinance alluded to provided that:

"The said fire commissioner shall have power to revoke the license or licenses in case in his judgment there is an infraction of this ordinance or of the regulations of the municipal explosives commission.”

No infraction of said provisions was proved, nor was it claimed or alleged on behalf of the individual defendants or on behalf of the city of New York that there had been any such infraction. On the 24th of January, 1906, the superintendent of buildings of the borough of Manhattan wrote to the Degnon Contracting Company:

"In accordance with the request of the mayor, based on the opinion of the corporation counsel, I hereby revoke the following permits [enumerating them]: For temporary buildings to be used in connection with the construction of the Long Island Railroad tunnel under 420 street, for the reason that the right to build this tunnel is disputed.”

Thereafter the plaintiff brought this action to enjoin and restrain the defendants from in any respect molesting or interfering with the plaintiff or the said Degnon Contracting Company in the construction of plaintiff's tunnel and railroad, or in the use and keeping of combustibles in connection therewith, or in the maintenance of such buildings and structures pursuant to the permits theretofore issued for that purpose, and from revoking or attempting to revoke or set aside said licenses or permits or any of them. It obtained an injunction pendente lite and a judgment upon the trial at Special Term making such injunction permanent, from which judgment the defendants here appeal.

The individual defendants are administrative officers of the city. In the performance of their administrative functions, upon due appli

and 140 New York State Reporter cation and in strict conformity to the provisions of law, they issued to a contracting company certain permits necessary to it for the prosecution of the work which the company had under construction. Said administrative officers, not of their own motion, not in the exercise of their judgment as such administrative officers, and not for any infraction of the rules or regulations governing the issuance and continuance of such permits, undertook to revoke them upon direction of the mayor, upon the grounds, as was sought to be established upon the trial, first, that the New York & Long Island Railroad Company was not a legal corporation; and, second, that it had no right to construct its tunnel upon which it had expended a very large amount of money. On the 22d of July, 1887, Walter S. Gurney and others duly made and acknowledged certain articles of association pursuant to the act entitled, "An act to authorize the formation of railroad corporations and to regulate the same, passed April 2, 1850" (Laws 1850, p. 211, c. 140), and the acts amendatory thereof and supplementary thereto, which said certificate was duly filed and recorded in the office of the Secretary of State on the 30th day of July, 1887. The articles provided that the company was to continue in existence for 99 years; that the places from and to which said railroad was to be maintained and operated were as follows:

"Commencing in Long Island City, Queens county, N. Y., at a point on or near the line of Borden avenue and distant about one mile from the East river; thence partly underground and partly in cutting to the East river: thence under the East river by means of a tunnel, and under streets and lands in the city of New York, county of New York, to a connection with the New York Central & Hudson River Railroad, at the corner or at a point near the Ninth avenue and 30th street; with a branch on the north to a connection with the New York Central & Hudson River Railroad, at or near the Grand Central Depot, in said city of New York, and a branch southerly to connect with what is now known as the Hudson river tunnel in the vicinity of Washington Square in said city of New York. The length of said railroad, as nearly as may be estimated, is five (5) miles, and the same is intended to be constructed within said counties of Queens and New York. The amount of capital stock of said railroad company shall be $100,000 consisting of one thousand shares of one hundred dollars each."

The appellants claim that in 1887, at the time of the filing of these articles of association, the building of such an underground road was prohibited by law, and that, as the corporation was organized for an illegal purpose, it never had a legal inception, and was not and is not a legal corporation and therefore has no power to sue.

It is true that chapter 10, p. 16, Laws 1860, provided that: "It shall not be lawful hereafter to lay, construct or operate any railroad in, upon or along any or either of the streets or avenues of the city of New York, wherever such railroad shall commence or end, except under the authority and subject to the regulations and restrictions which the Legislature may hereafter grant and provide.”

It is conceded, as it must be, that although this railroad was not exclusively at the time of its incorporation a New York City road, nor in the ordinary meaning of the words a street railroad at all, yet, as the statute affected a railroad in, upon or along some of the streets of the city of New York wherever it should commence or end, that, if there did not exist legislation subsequent to the act of 1860 which

authorized the construction of this road, it could not have been lawfully built "in, upon, or along" any street in the city of New York. People ex rel. N. Y. City & Westchester R. R. v. Commissioners, 81 App. Div. 237, 81 N. Y. Supp. 26, affirmed 176 N. Y. 577, 68 N. E. 1123; People ex rel. New York Central & Hudson R. R. v. Mayor, 81 App. Div. 242, 81 N. Y. Supp. 20, affirmed 175 N. Y. 516, 67 N. E. 1088; Matter of N. Y. District Railway, 107 N. Y. 42, 14 N. E. 187; Matter of Washington Street A. & P. R. R., 115 N. Y. 442, 22 N. E. 356. The prohibition contained in the act of 1860 applied only to so much of the railroad as was to be built “in, upon or along any or either of the streets or avenues of the city of New York," and did not affect the right of the railroad corporation to build or operate its road in Queen's county or under the East river. It could have constructed its road to the exterior bulkhead line of the city of New York on the East river, and then under private property in the city of New York without coming within this prohibition. The Legislature did pass thereafter the so-called “tunnel act” (chapter 582, p. 872, Laws 1880), entitled :

“An act to provide for excavating and tunnelling and bridging for trans portation purposes within villages and cities of this state."

Section 1 of this act provided :

"Whenever according to the route and plans adopted by any railroad company beretofore or hereafter formed under any special act of the Legislature of this state, or under chapter 140 of the laws of 1850, entitled: "An act to authorize the formation of railroad corporations and to regulate the same' and all acts supplementary thereto or amendatory thereof for the building of its railroad, it shall be necessary or proper to build said road, or any part of the same underground, or to tunnel or bridge any river or waters, it shall be lawful for said company to enter upon and acquire title to and use such lands under water and uplands, except on or along any canals owned by the state, as shall be necessary for purposes herein mentioned, and they shall have the power to construct, erect and secure the necessary foundations and other structures which may be required for the operating of such road or connecting the same with another, and for maintaining the same

and provided, further, that whenever such road, or any part of the same, is intended to be built within the limits of any city or incorporated village of this state and to run by means of a tunnel underneath any of the streets, roads or public places thereof, the said company, before building the same underneath any of said streets, roads or public places, shall obtain the consent of the owners of one-half in value of the property bounded on the line and of the proper authorities having control of said streets, roads or public places.

The appellants claim that this act was unconstitutional. In Matter of New York District Railway Co., 42 Hun, 621, Id., 107 N. Y. 42, 14 N. E. 187, it appeared that the New York District Railway Company had been incorporated under the act of 1850 for the purpose of constructing a tunnel railroad wholly within the then city of New York, and, having failed to secure the consents of either the local authorities of that city or of the owners of the property abutting on the streets through which it proposed to build its road, applied to the General Term of the Supreme Court for the appointment of commissioners, whose report, confirmed by the General Term, was by the terms of the act of 1880 made a substitute for both the consents of

106 N.Y.S.-58

[ocr errors]

and 140 New York State Reporter the local authorities and of the property owners. It was held that so much of said act as substituted the favorable determination of the commissioners when confirmed by the General Term for the consent of both the local authorities and the property owners was unconstitutional. Mr. Justice Barrett, in writing the opinion of the General Term, said:

“Having thus concluded that the act of 1880, in the particulars discussed, is unconstitutional, I do not think that the petitioner's case is within the principle that, when part of an act is constitutional and part unconstitutional, that part which is valid should be upheld, provided it is separable from that which is invalid. This principle would enable the petitioner to proceed under the act up to the point where an application for the appointment of commissioners is essential. It may obtain the consent of the local authorities and of the requisite number of property owners. These provisions are valid and separable from what follows; but, when an application for the appointment of commissioners becomes necessary, the petitioner must take the provision on that head as it is. The court cannot sever the effect wbich the act gives to the confirmation of the commissioners' judgment. We cannot say that there shall be a constitutional effect when the act declares there shall be an unconstitutional one.

The act does not substitute the confirmation of the commissioners' judgment for the consent either of the local authorities or of the property owners, but for that of both."

And the Court of Appeals, Judge Finch writing for a unanimous court, expressed the same views. He said he could not see his way clear to adopt the conclusion that only so much of the act of 1880 was invalid as made the order of the court confirming the report of the commissioners stand for the consent of the authorities, and that the order might be granted and stand for the consent of the property owners alone, and concluded:

"It is not the case of two independent provisions, one of which may be re jected without affecting the remainder of the act, for we cannot lessen the effect of the order without maiming the order itself and its statutory.character. Very possibly the act may stand as an authority for the construction of an underground street railway upon the condition of the assent of the city authorities and the half of abutting values, and rejecting all the provisions for the appointment of commissioners, whose order shall be a substitute. Further than that we do not deem it our duty to go."

This is a clear recognition of that principle of statutory construction as stated by Judge Cooley in Constitutional Limitations (7th Ed.)

p. 246:

"Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the court to declare the remainder void also unless all the provisions are connected with the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the Legislature would have passed the one without the other."

The constitutional provision is contained in article 3, § 18, as follows:

"No law shall authorize the construction or operation of a street railroad except upon 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 baring control of that portion of a street or highway upon which it is proposed to monstruct or operate such railroad shall be first obtained.

This provision of the Constitution is complete in itself. Recognizing the serious effect of a street railroad upon adjacent property, and

« PreviousContinue »