
    John M. Davidge and Others, as Executors, etc., of James Davidge, Deceased, and Others, Appellants, Impleaded with James B. Weed, v. The Common Council of the City of Binghamton and Others, Respondents.
    
      Street railroad — contract with the city as to paring between its tracks—an extension is covered thereby — ratification of the contract by the Legislature—it cannot be impaired by subsequent legislation.
    
    April 26, 1892, the city of Binghamton, in settlement of a controversy with the Binghamton Street Railway Company and the Binghamton and Port Dickinson Railway Company touching their liability for street paving, entered into a contract with each of the two. railway companies, which contained the following provisions: “That in lieu of all obligations on the part of the said * * * Railway Company to keep the surface of the streets and highways within the rails of its tracks and for one foot outside thereof, and to the extent of the ties, in good and proper repair and order, as required by the act incorporating the said railway company or by any other provision of law, the said company shall hereafter pay to the city of Binghamton one-fifth of the net cost of laying new pavement between the rails of its tracks. * * * the terms and conditions herein set forth shall apply and extend to any additions or extensions of the tracks of said railway company. * * * which contract shall enure to the benefit of and be binding upon its successors and assigns and to any company with which it may be hereafter merged or consolidated.”
    August 11, 1892, the two railway companies were consolidated under the name of the Binghamton Railway Company, the consolidated company succeeding to all the rights, franchises and privileges of each of the constituent companies. March 28,1893, the Legislature passed a law (Chap. 231) ratifying and legalizing the contract between the city and the railroad company. There • ■ after the Binghamton Railroad Company obtained permission to extend its tracks along a certain street upon the express condition that all the terms of the contract of April 26, 1892, should apply to and cover the extension. Subsequently the street was paved and the Binghamton Railroad Company paid one-fifth of the cost of paving between its tracks, as provided in its contract. The owners of property abutting on the street in question thereupon brought an action to compel the city to require the railroad company to pay for the paving to the full extent provided by section 98 of the Railroad Law, viz., for the space between its tracks and two feet outside thereof. After the trial section 93 of the Railroad Law was amended (Chap. 494 of the Laws of 1901) so as to provide: “This section (93 as amended) shall not modify or affect any contract heretofore entered into between a street surface railroad corporation and any city of the third class, town or village, regulating the payment of percentages or paving of streets, and any city of the third class, town or vil lage, is hereby authorized to enter into any such form of contract with any street surface railroad corporation, and any such contract heretofore. entered into is hereby ratified and confirmed.”
    
      Held, that the complaint was properly dismissed;
    That the contract between the city and the railroad companies embraced the . extension in question;
    That all doubt as to the legality of the contract was dispelled by the confirmatory statute of 1893 and by the amendment to section 93 of the Railroad Law in 1901;
    That the amendment to the Railroad Law passed in 1901 was applicable to the action, and should be considered in determining the rights of the parties;
    That the confirmatory act of 1893 was not unconstitutional on the ground that it granted to the railroad companies an exclusive privilege, immunity or franchise;
    That as at the time of the passage of the act of 1893 there was no general law which imposed any duty of paving upon the railroad companies, the passage of that act operated to confirm on behalf of such railroad company a property right resting in contract, which was not impaired by the subsequent legislation on the subject Contained in the General Railroad Law. ■
    Appeal by the plaintiffs, John M. Davidge and others, as executors, etc., of James Davidge, deceased, and others, from a judgment of the Supreme Court in favor of the defendants, entered' in the office of the clerk of the county of Broome on the 14th day of December, 1900, upon the decision of the court rendered after a trial at the Broome Special Term, dismissing the complaint upon the merits.
    The action is brought by taxpayers of the city of Binghamton whose assessments aggregate over $5,000, and who, as owners o'f real estate abutting On Front street, between Main and Ferry streets, in said city, are liable for assessments for paving Front street as provided by resolution of the. common council. And the purpose of the action is to compel the city to enforce against the Binghamton ¡Railroad Company a tax for such paving improvements to the full extent provided by section 98 of the General Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676), namely, for the space between the tracks, the rails of the tracks and for two feet outside thereof. The city and railroad company allege as a defense a contract made in 1892 by and between the city of Binghamton and two surface street railway corporations, to whose rights this railroad company has succeeded, by which the tax for such paving improvements was limited and fixed, and the issues as joined involve the validity of that contract and its construction so far as to determine whether it covers the street in question. The other .pertinent facts appear in the opinion.
    
      Charles 8. Sail, for the appellants.
    
      Frank Stewa/rt, for the respondents, Common Council and Treasurer of the City of .Binghamton.
    
      CwriAss & Keenan, for the respondent, The Binghamton Railroad Company.
   Kellogg, J.:

The trial court has found, from undisputed testimony, that the Binghamton Railroad Company, defendant, was formed by the consolidation, under the laws of this State, of the Binghamton Street Railway Company and the Binghamton and Port Dickinson Railway Company, and such consolidation was perfected August 11, 1892; that the consolidated company succeeded to all the rights, franchises and privileges of each of the companies so consolidated; that on April 26, 1892, in settlement of a pending action touching the liability for street paving and in settlement of other controversies, and for other considerations, the city of Binghamton entered into a written contract with the two companies so subsequently consolidated, and by such contract, among other things, it was agreed as follows: That in lieu, of all obligations on the part of the said Binghamton and Port Dickinson Railway Company to keep the surface of the streets and highways within the rails of its tracks and for one foot outside thereof,- and to the extent of the ties, in good and proper repair and order, as required by the act incorporating the said railway company or by any other provision of law, the said company shall hereafter pay to the city of Binghamton one-fifth of the net cost of laying new pavement between the rails of its tracks. * * * the terms and conditions herein set forth shall apply and extend to any additions or extensions of the tracks of said railway company. * * * which contract shall enure to the benefit of and be binding upon its successors and assigns and to any company with which it may be hereafter merged or consolidated.”

The provisions of the contract as to the Binghamton Street Railway Company are in all respects similar, except that the Binghamton Street Railway Company is to do other things and it is also to pay “ one-fifth of the net cost of all new pavements hereafter laid between the rails of its track.” The same wording is used as to additions or extensions,” and the same pro fisión is made touching the binding quality of the obligation upon and towards “ successors and assigns and to any company with which ” it might be thereafter merged or consolidated.

The city of Binghamton applied to the Legislature thereafter and procured an act to be passed which became a law March 28, 1893, whereby the said contract in express terms was ratified and legalized. Thereafter the said consolidated company and the said city of Binghamton treated said contract as a binding agreement and acted thereunder, observing all of its provisions.

On or about April 1, 1896, the Binghamton Railroad Company, being the company formed by the consolidation of the two companies entering into said contract with the city of Binghamton, applied to the city of Binghamton for leave to extend its tracks along Front street, between Main and Ferry streets. Such permission was, on terms, granted with the express provision that all the terms of the before-mentioned contract should apply to and cover this extension. On such terms the permission to extend the tracks was granted and accepted, and this action relates to paving directed to be done on this street since the Binghamton Railroad Company laid its tracks thereon. The Binghamton Railroad Company has paid one-fifth of the cost of paving between its tracks on this extension, as provided by said contract, and the city of Binghamton has refused to take any action to compel the company to pay more.

I think that the contract, fairly construed, embraces this extension in Front street. The language of the contract expressly includes extensions thereafter to be made, not by the contracting companies only, but by any company with which either might thereafter consolídate. The union of the two contracting companies did not diminish the obligations of the consolidated company imposed by the contract. Neither did it curtail any of the privileges secured by those contracting companies. One of these was the right to extend the contract over the extended tracks. The contract extended itself by its terms, and neither party without the consent of the other could prevent this. To remove all doubt as to the construction of the contract, however, it was expressly agreed before the extension was made that it should come under the contract.

By an amendatory act, amending section -93 of the Railroad Law, passed April 23,1901, which act went into effect immediately, it was provided : This section (93 as amended) shall not modify or affect any. contract heretofore entered into between a street surface railroad corporation and any city of the third class, town or village, regulating the payment of percentages or paving of streets, and any city of the third class, town or village, is hereby authorized to enter into any such form of contract with any street surface railroad corpora-tion, and any such contract heretofore entered into is hereby ratified and confirmed.” (Laws of 1901, chap. 494.) ' •

If there has heretofore existed any doubt as* to the power of the city of Binghamton, under its charter, to contract with a street railway company touching the pavement of streets in which the tracks of the company are laid, such doubts are dispelled by the provisions of this law. The Legislature, recognizing the obvious fact that what would be a reasonable burden in one municipality and in one portion of a municipality might be a prohibitive burden in another municipality or in another part of the' same municipality, has here, respecting percentages to be paid and paving to be done, given to cities of the third class and to towns and villages a free hand and power to contract to the exclusion of all general laws on the subject, and to the exclusion of all burdens imposed by general laws. This power to contract means to acquire rights by contract, property rights vested through the terms of a contract, privileges and immunities which cannot afterwards be taken away without the consent of the contracting parties. Whatever doubts there may be as to the power of the Legislature to impose new burdens upon corporations, inconsistent with the terms of a special charter theretofore granted by the Legislature, there can be no doubt as to the legislative power to remove such burdens and to give leave to the municipalities and to the corporations to contract in lieu of them. Nor do I think there can be any doubt as to the power of the Legislature to recognize, ratify and confirm any existing unrepudiated contract such as is here in this law referred to and make such contract, if before doubtful because of lack of power delegated to the contracting parties, good cob initio by such, ratification.

“If the act could have been lawfully performed or done under precedent legislative authority, the legislature may subsequently ratify it and give it effect.” (Dillon Hun. Corp, [4th ed.] § 19.)

“ The healing statute must in all cases be confined to validating acts which the legislature might previously have authorized.” (Cooley Const. Lim. 381.)

Although this law was passed since the trial of this action, it is a general law and the court is bound to take notice of it so. far as it applies and gives validity to this contract from the time of its execution. There are no vested rights intervening between the date of the contract and the passage of this law. The right of action of the plaintiffs, if any they ever possessed, did not arise in contract. The right of action as they allege it is the right to compel the city of Binghamton to do its duty and disregard the contractas invalid. If this law has the effect of making the contract valid,, the plaintiffs are simply legislated out of court, for there no longer remains a duty unperformed.

But I do not think the defendants need stand upon this law alone. It seems to me that the legalizing act of 1893 (Chap. 231) cured all the infirmities of the contract arising out of a lack of power on the part of the contracting parties. ' It 'was without doubt the intention of the Legislature to make such cure effectual and complete. It was in effect the same as an amendment to the charter of the city of Binghamton giving power to the common council to make the contract. That the Legislature might make such amendment and not be properly chargeable with violating the provisions of the Constitution (Art. 3, § 18) against the passage of any but general laws on certain specified subjects, is not to be questioned. The particular subject called to our attention by the appellant is that of granting to any private corporation, association or individual any exclusive privilege, immunity or franchise. This legalizing act does neither of these things. There is here no exclusive immunity or privilege. The Legislature might'grant to any other corporation or individual in the city of Binghamton the same immunity and privilege and in no way infringe upon this grant. I see nothing in the constitutional objections urged against this act of the Legislature.

At the time of the passage of this act in 1893 it is conceded that there was no general law which imposed any duty of paving upon this corporation or upon either of the corporations from which it was formed. By this act, validating, and ratifying the contract, the subject of paving became a matter of contract; immunity from additional burdens was secured. This was a property right, and no subsequent legislation could affect it. The burdens in this respect imposed by the General Railroad Law subsequently upon all corporations had no application to this corporation because its contract was its perfect shield.

It is unnecessary to discuss the various other questions and phases presented on the argument of this appeal. The question of the correctness of the decision of the trial court stands upon the validity of this contract and its construction. Holding it valid from the date of its execution, and that by its terms the extension in Front street is embraced, the decision appealed from must be affirmed.

Parker, P. J., Edwards and Chase, JJ., concurred in result.

J udgment unanimously affirmed, with costs.  