Supreme Court, February, 1899. [Vol. 26. existence of the general law it was no immunity whatever, but simply a contract. An exclusive immunity is one that either from the terms of the grant or as a result of the provisions of the grant exclude all others from a like enjoyment. It may be a special immunity enjoyed by no other street surface railroad in the state, yet it is not an exclusive immunity. Counsel for the plaintiff in a very elaborate and ingenious argument claims that every grant of an immunity is of necessity an exclusive one; but his reasoning will not stand the test of scrutiny. Every immunity is exclusive in the sense that all others are necessarily excluded from the enjoyment of the same immunity, so, also, is the grant of every franchise or privilege an exclusive one, in the sense that all others are excluded from the enjoy ment of that particular franchise or privilege. The true test is not, are all others excluded from the enjoyment of that particular grant, but, are all others excluded from the enjoyment of a like grant? The fact that no others enjoy a like immunity does not render the immunity exclusive. It is not whether others enjoy a similar privilege, immunity or franchise, but are others prohibited from a similar enjoyment by reason of the enactment. Manifestly others are not excluded from a like immunity by reason of this legalizing act, but because the legislature has not granted to them a like immunity. In pointing out the distinction between an exclusive privilege resulting from the inherent nature of the thing granted, and one resulting from the provisions of the grant as contemplated by the Constitution, Rapallo, J., says, in Matter of Application of Union Ferry Co., 98 N. Y. 140-154: "But it is contended that this designation of the particular piece of property to be condemned for the purposes of the ferry renders the grant of the privilege or authority exclusive, inasmuch as no one but the grantee of the power can take the same property. That, however, is not, in our judgment, the nature of the exclusiveness contemplated by the Constitution. The exclusiveness prohibited is one which is created by the terms of the grant, not that which results from the nature of the property or right granted. In such a case the exclusiveness is not produced by the grant, but results from the nature of the thing granted, and to this extent every grant to a corporation or an individual, of the right to acquire real estate, is exclusive. Where a toll-bridge is authorized to be erected at a particular locality, the right to that particular * * * Misc.] Supreme Court, February, 1899. bridge is necessarily exclusive. So of all lands acquired by a railroad company for depots, car yards, etc., their right to enjoy those lands is exclusive. The right of the owner of upland to fill out into waters of the state in front of his land is exclusive in respect to the particular property involved, though a similar right may be conferred upon every person holding lands similarly situated. * We think that in all these cases the exclusion of others from the enjoyment of rights or privileges similar to those bestowed upon the particular grantee must, in order to come within the constitutional prohibition, result from the provisions of the grant and not from the inherent nature of the right granted." * * I think it is quite clear that the immunity granted to the defendant railroad company as a result of the provisions of the legalizing act is not an exclusive one within the meaning of the Constitution. Neither can there be any criticism of the legalizing act because it attempted to make valid a contract void at the time of execution, resulting from a want of power on the part of the city. It is well settled that the legislature may confer power on a municipality by retrospective legislation, and such ratification of an act already done is equivalent to an original authority to do the same act. The legalizing act was, therefore, as effective as though the power had been conferred upon the city before the contract was made. Brown v. Mayor, 63 N. Y. 239-244; People ex rel. A. & S. R. R. Co. v. Mitchell, 35 id. 551; Town of Duanesburgh v. Jenkins, 57 id. 194; Rogers v. Smith, 5 Hun, 475. It is not claimed that the legalizing act has been expressly repealed. A special or local statute will not be held to be repealed by a subsequent general act unless the legislative intent is clear. "It is the principle that a general statute, without negative words, will not repeal, by implication from their repugnancy, the provisions of a former one, which is special or local, unless there is something in the general law or in the course of legislation upon its subject-matter that makes it manifest that the legislature contemplated and intended a repeal." Suth. Stat. Const., §§ 157, 158. "The law does not favor a repeal of statutes by implication. To work a repeal by implication, the intent of the legislature must be very apparent, or the two laws must be so incongruous and repugnant that effect cannot be given to both." Matter of Commissioners of Central Park, 50 N. Y. 497. Supreme Court, February, 1899. [Vol. 26. In Casterton v. Town of Vienna, 17 App. Div. 94, it was held that a general statute does not repeal a special one relating to the same subject, unless the general statute is a codification of the law relating to the subject or expressly or by clear implication repeals the special statute. In Parker v. Elmira, Cortland & Northern R. R. Co., 27 App. Div. 383, it was held: That the General Railroad Law of 1890 repealed by implication the special act of 1872, under which the defendant was permitted to charge a fare of four cents per mile. That decision was made upon the theory that the General Railroad Act was, in affect, a codification of the entire Railroad Law, and was also, in effect, a culmination of years of legislation on the subject. The course of legislation for many years upon the subject made it quite apparent that the legislature intended by the General Railroad Act of 1890, to supersede all previous special legislation in conflict therewith. It must be remembered that the legalizing act, however, was not passed until after the General Railroad Act, and, therefore, the reasoning of the learned Appellate Division in this department in the case last cited does not apply. It must also be borne in mind that the statute which it is claimed repeals the legalizing act by implication was a mere amendment to section 90 and was not a codification of the laws upon the subject, or the result of years of legislation upon the same subject. Moreover, this amendment to the general law was passed by the same legislature that passed the legalizing act, and within less than a month after its passage. Under the legalizing act, and by its terms, the defendant the Binghamton Railroad Company became vested with certain property rights; and it cannot be assumed that the legislature, at the same session, by the mere amendment to the general law, intended to · take away the right thus vested. The railroad company had paid the sum of more than $1.000 towards the paving of Chenango street, in settlement of litigation after the General Term, in the City of Binghamton v. Binghamton & Port Dickinson R. R. Co., cited supra, had held that no such obligation existed; and the railroad company had obligated itself to construct its road in a particular way, to give the city certain privileges heretofore enumerated. The rights, therefore, of the railroad company were, to some extent, at least, vested ones, which were known to the legislature, as evidenced by the language Misc.] Supreme Court, February, 1899. of the legalizing act. I refer to this as being some evidence of an intent on the part of the legislature not to repeal the legalizing act. Again, it is doubtful whether, under section 33 of the Statutory Construction Law, an act passed by the legislature repeals by implication another act passed at the same session. In the case of People ex rel. Lee v. Waring, 1 App. Div. 594, it was held that a mere amendment to a general law, passed a few days after the passage of a special act, did not repeal the special act by implication. This case was affirmed in 149 N. Y. 621, on the opinion of Williams, J., in the court below. In the course of the opinion Williams, J., says: "If such was the intention of the Legislature when it passed chapter 269 of the Laws of 1892, (special act), certainly no change of intention could be inferred or deduced from the amendment of the act of 1888 (general law) by chapter 577 of 1892. This amendment took effect only a few days, less than a month after chapter 269 of the Laws of 1892." In People ex rel. Leet v. Keller, 31 App. Div. 248, the same principle was held. See, also, Lewis v. City of Syracuse, 13 App. Div. 587, and Boechat v. Brown, 9 id. 371. In the last case it was held, that where a provision of the Code was in conflict with the charter of the city of Buffalo, the charter being a special local law, was not repealed. In the Syracuse case it was held that the general law, chapter 572 of the Laws of 1886, which limited the time in which a cause for negligence should accrue, did not operate to repeal a section of the charter of the city of Syracuse, which provided a different period of limitation. Neither is there anything in the amendment of the General Railroad Law, chapter 933, Laws of 1895, to indicate an intent upon the part of the Legislature to repeal by implication the Legalizing Act. The amendment of 1895 sought to amend the general law in certain other matters which did not affect the questions at bar, and in making such amendment it became necessary to re-enact section 90, as amended by the Laws of 1893, using the identical language so far as it relates to the questions here. It is not within the province of this court to pass upon the wisdom of the special act. Our duty is limited to an investigation of the power and intent of the legislature. I am fully convinced Supreme Court, February, 1899. [Vol. 26. that the legislature had power to make the enactment, and that it did not intend to repeal such special law by the subsequent amendments to the general law. The conditions imposed by the common council of the city as a prerequisite to granting the defendant railroad company the right to construct its road in Front street were only such as the General Railroad Law required. Those conditions are declared to be only such as are "pertinent thereto." pertinent thereto." The conditions so imposed are only applicable so far as they do not conflict with the contract of 1892. The foregoing view leads to the conclusion that the defendants are entitled to judgment dismissing the complaint on the merits. Counsel for defendants will prepare formal findings which may be settled on three days' notice. The question of costs may be reserved until such settlement. Judgment for defendants, dismissing complaint. THE PEOPLE ex rel. CHARLES C. HOVEY, Relator, v. THE TOWN CLERK OF THE TOWN OF BAINBRIDGE, CHENANGO COUNTY, N. Y., Defendant. (Supreme Court, Chenango Special Term, February, 1899.) Liquor Tax Law - A petition for a resubmission of local option must be filed twenty days before the town meeting. The provisions of section 32 (formerly section 34) of the Town Law (Laws of 1890, chap. 569) apply to a petition of town electors, who request, under the Liquor Tax Law (Laws of 1896, chap. 112, § 16, subd. 4, as amended by Laws of 1897, chap. 312), a resubmission to the electors at a town meeting of the question of local option, and hence unless the petition is, in accordance with the Town Law, filed with the town clerk at least twenty days before the town meeting, his refusal to print the ballots required for such resubmission is justified and action upon his part will not be compelled by mandamus. APPLICATION for a peremptory writ of mandamus. Johnson & Huntington, for relator. W. B. Matterson, for defendant. |