
    THE GILBERT ELEVATED RAILWAY CO. v. ANDERSON.
    
      [Affirming 9 Hun, 303.]
    
      N. Y. Court of Appeals;
    
    September, 1877.
    Presumption of Constitutionality.—Constitutional Amendments of 1874.—Grants of Railroad Franchises.—Special and Local' Legislation.—Interpretation of Constitutional Amendments.—Rapid Transit Act.—Competing Routes.—Legislative Delegation of Power.—Corporate Franchises.
    Every presumption is in favor of the constitutionality of acts of legislature. An adverse, doubtful construction is not sufficient to condemn an act. It is only in cases of clear and substantial departure from the provisions of- the fundamental law, that courts will declare acts of the legislature invalid.
    The distinction in this respect between the State and Federal constitution is that the exercise of a legislative power by the State legislature will be presumed constitutional, unless brought clearly within some of the exceptions contained in the State constitution; while a similar exercise of power by congress can only be justified by an affirmative grant, embracing the specific power exercised.
    An act restricting and regulating an existing right to lay down railroad tracks is not a grant of a right to lay such tracks, nor the grant of a franchise, within the prohibitions on grants by special legislation in the- FT. Y. constitutional amendments of 1874.
    
    A change in the structure and manner of occupying the streets, under a railroad franchise previously granted, is not the grant of a right to lay down tracks, nor of a franchise.
    The constitutional amendments in restraint of special or local legislation are not to be extended by construction.
    Amendments and additions to a constitution, must be read in connection with the whole instrument, and do not supersede any provision to which they are not absolutely repugnant.
    
      The amendment prohibiting a law authorizing a street railroad, without consent of one-half in value of the property-owners, or the approval of commissioners appointed by the supreme court, does not apply to the Gilbert Elevated Railway Company, which was previously authorized to build a road, and which obtained approval of the rapid transit commissioners appointed by the mayor.
    The provision of section 4 of the rapid transit act, requiring the constitutional consent by owners, or approval by supreme court commissioners, does not apply to a pre-existing company already having a grant of the franchise.
    Commissioners were authorized to designate rapid transit routes over, under, through, or across, any streets except Broadway, and the act provided that if any such route, or routes, coincided with those of an existing corporation, the latter should have the right, &c., and the commissioners laid out a route to Broadway, and from it, Held, that a corporation having the right to cross Broadway at tha1 point by a route otherwise coincident with those laid out by the commissioners, could build their road.
    The legislature have power to delegate to commissioners the determin ation of the route of a railroad, and the mode of construction i details, instead of prescribing them in the statute.
    
    
      Expresdo unius est exalusio alterim.
    
    The legislature still have power to .grant special charters, except & 4 banks and villages.
    And they may release a corporation having a special charter, from conditions which the State alone could enforce against it, or nay impose additional burdens on it.
    Appeal from an order appointing commissioners to appraise damages.
    The Gilbert Elevated Railway Company, on a petition verified in September, 1876, obtained, in January, 1877, an order appointing commissioners to appraise the damages due to a few owners of the soil of South Fifth avenue, at Laurens street, over which the railroad company’s route lay.
    E. Ellery Anderson and others, and Catherine N. Kobbe, appealed to this court. Further details as to-the facts material to each question determined appear in the opinion.
    
      The supreme court held the powers claimed by the Gilbert company were conferred before the constitutional amendments, and not invalidated by those-amendments, and that the company were entitled to proceed and take the lands under the street on paying damages to the owners. The owners appealed to the-court of appeals ; and relied on - the objection, among others, that the law did not provide for compensation to those abutting owners who did not own the soil of' the street, and therefore was void even as against those who did and were protected (Reported in 9 Hun, 303).
    The cause was argued here at the same time with the matter of the New York Elevated R. R. Co., above-reported.
    
      William M. Evarts, E. Ellery Anderson and Algernon S. Sullivan (Anderson & Man, and Sullivan, Kobbe & Fowler, attorneys), for appellants.
    
      John K. Porter and Samuel Hand (Porter, Lowrey, Soren & Stone, attorneys), for respondents.
    
      
       Compare, however, Shields n. State of Ohio, 17 Alb. L. J. 105 (H. S. Supreme'Ot., Oct., 1877), where it was held that for two railroad companies to consolidate under a general law was to accept a new grant of franchises. And see Wallase v. Loomis, Id. 131.
    
    
      
       See People ex rel. Herrick v. Smith, 21 H. Y. 595 ; Matter of Central Park Extens., 16 Abb. Pr. 56 ; Matter of Kerr, 42 Barb. 119 ; Matter of Fowler, 53 H. Y. 60 ; and see Village of Gloversville v. Howell, 7 Hun, 345.
    
   Church, Ch. J.

These appeals are from orders appointing commissioners to appraise damages in proceedings to condemn lands for the purpose of the respondent’s road. The proposed route lies through South Fifth avenue in the city of New York. The fee of the-street opposite their premises is in the appellants, and not in the city. Several points are presented, and have been exhaustively argued with great ability and. ingenuity, and some of them are not free from difficulty. After as full an examination as I have been able to make, I have arrived at a conclusion upon the-respective points made, which I shall proceed to state, with the reasons therefor, briefly, without attempting-to elaborate the arguments in their support. Among the most material of these points is the proposition that section 36 of the rapid transit act, so-called (chap. 606, of the Laws of 1875), the first clause of which, it is alleged, was.intended for the benefit of the respondent corporation, is a violation of some of the provisions of the last series of amendments to the State ■constitution, which took effect on the first day of January, 1875, before the passage of the act. These provisions are as follows:

“ The legislature shall not pass a private or local bill in any of the following cases : * * *
“ Granting to any corporation, association, or individual, the right to lay down railroad tracks : * *
“Granting- to any corporation, association, or individual, any exclusive privilege, immunity, or franchise whatever.”

The legislature is required to pass general laws in these cases, and prohibited from passing any law -authorizing the construction or operation of a street railroad without the consent of one-half in value of the property-owners, or the certificate of the commissioners ■appointed by the supreme court.

It is important to understand the status of the Gilbert company, at the time of the passage of the rapid transit act, as it has a bearing upon the proper construction to be given to the act in its application to this company. Prior to the passage of this act, and before the amendments of 1875 took effect, under the successive acts of 1872, 1873 and 1874, the Gilbert company became incorporated for the purpose of constructing and operating an elevated steam railroad. Two sets of commissioners had, in pursuance of said acts, designated the routes over which the road was to be constructed, and the corporation was authorized in the fullest manner to occupy the streets and avenues designated for that purpose. Authority was also conferred to condemn lands under the power of eminent domain. The city authorities were prohibited from giving permission to any other person or corporation to do any of the acts which were authorized by the act to be done by this corporation, and were expressly enjoined to aid the corporation in carrying out the purposes of the law. Thus it will be seen, that, at the time of the passage of the rapid transit act in 1875, the corporation was the-grantee of the right to lay down railroad tracks, upon the elevated plan described in the charter, and had all the incidental powers necessary for that purpose. The charter had not been forfeited, nor had there been a failure to comply with the conditions imposed in respect to the time of building the road. The rapid transit act authorized a comprehensive and independent system of rapid transit by elevated railroad through the city. It authorized the appointment of commissioners, by the mayor, to determine the necessity for such railways, to locate routes, fix upon the plan of construction, organize and put in operation a corporation with powers defined by the act, and then, by the first clause of section 36, which is in controversy here, it provided that, “whenever the route or routes-determined upon by said commissioners coincide with the route or routes covered by the charter of an existing corporation formed for the purpose provided for by this act, provided that said corporation has not forfeited its charter or failed to comply with the provisions thereof, requiring the construction of a road or roads within- the time prescribed by its charter, such corporation shall have the like power to construct and operate such railway or railways, upon fulfillment of the requirements and conditions imposed by said commissioners as a corporation specially formed under this act.” The commissioners appointed for that purpose adopted the routes of the Gilbert elevated company, but required some changes in the form of the structure in a portion of the streets, from an arch covering the streets, supported by posts located, at curbs, as provided in the charter, to a structure supported by upright posts, in the center"of. the street, and required a reduction of fare, and the running of extra trains at half fare for the benefit of the laboring population, all of which has been assented to by the company.

A point was made, also, that the commissioners made a more radical change of the structure : from a tubular railway, to be operated in whole or in part by pneumatic power, to an open steam railway. But, in the case of the Sixth Avenue Railroad Company against the Gilbert company, the evidence and findings in which are incorporated into the papers in one of these cases, it is found that the charter contemplated an open railway, to be operated by steam power, and such is, I think, the proper inference from the act itself, and the facts proved ; so that this point, whether important or not, may be regarded as out of the case.

It is pertinent, also, to refer to the rule of construction to be applied. Every presumption is in favor of the constitutionality of acts of the legislature. An adverse, doubtful construction is not sufficient to condemn an act. It is only in cases of clear and substantial departure, from the provisions of the fundamental law, that courts will declare acts of the legislature invalid (55 N. Y. 54; 50 Id. 553; 14 Mass. 340; 17 N. Y. 235; 23 Wend. 166). There is a distinction in this respect between the State and Federal constitution. The former grants to the senate and assembly all legislative power not prohibited by the latter, or excepted by the instrument itself; the latter grants to Congress specific powers only. Hence, the exercise of a legislative power by the State legislature will be presumed constitutional, under the general grant of power, and will be sustained, unless brought clearly within some of the exceptions ; while a similar exercise of power by Congress can only be justified by an affirmative grant, embracing the specific power exercised. Assuming that language referring to the corporation having the coincident route, or routes, used in section 36 of the rapid transit act, was descriptive of and was intended to apply only to the Gilbert company, the first question is in view of the facts and rule of construction referred to, whether the legislature did, by that act, grant to the Gilbert company the right to lay down railroad tracks, within the meaning of this clause.

The right existed prior to the passage of the act, and that right the legislature intended to protect: the corporation must not have forfeited its charter, or failed to comply with its provisions in respect to time, &c. The act recognizes, in terms, that the corporation was formed for the purpose provided by the act, which purpose was to build and operate an elevated steam railway in and through the streets of the city. The legislature granted that right to the new corporation authorized to be created, but the company, already possessing that right, whose route or routes were satisfactory to the commissioners, was intended to be recognized and its powers confirmed. The changes required were restrictive in character. By the charter, the whole street was to be covered by the structure ; by the conditions imposed, only a portion of some streets could be occupied. We cannot determine, as matter of law, whether this change will be a benefit to or a burden upon the company, nor whether the street itself will be less or more inconvenient for the public and abutting owners than with the original structure. The reduction of fares and the requirement for extra trains at half fare were clearly restrictive of existing rights. I cannot accede to the proposition that any change in the structure and in the manner of occupying the streets, however restrictive upon the company, or beneficial to the public, in the use of the streets, constitute a fresh grant of the right to lay down railroad tracks. It is a misnomer to call such restrictions grants of any right whatever. As well might the cutting down of a fee to a life estate. be termed a grant of land. The purpose of the corporation, and its substantial powers, were the same after as before the passage of the act, and if, in imposing conditions, some benefits accrued, such as an extension of time and the like, these would not change the character of the act. True the act declares that the corporation, upon complying with the conditions imposed, shall have “like power” with corporations authorized to be created. It possessed like power before, and this clause must be construed as confirmatory of such power as applied to the changes and restrictions required and imposed. The constitutional clause was designed, I think, to prohibit an original and independent grant of the right to lay down railroad tracks, including the powers incident thereto. I agree with the objectors, that the legislature cannot grant this right under the guise of an amendment to an existing charter, any more than by an original grant. It would be incompetent to grant this right to a corporation organized for a different purpose, but, in my judgment, an act restricting and regulating an existing right to lay down railroad tracks is not a grant of that right within the meaning of this clause. It is not within the letter of the clause, nor within thg evil at which the provisions was aimed. I find nothing in any of the authorities cited to justify a different conclusion from that at which I have arrived.

The next question is whether the rapid transit act (especially section 36) violates the other provision quoted, prohibiting the legislature by a private or local bill from “granting to any corporation, association or individual, any exclusive privilege, immunity, or franchise whatever.”

It is not easy to understand precisely what was intended by this clause. Every franchise granted by the legislature is from its very nature exclusive, in the sense that it does not belong to the citizens generally of common right (Angeli and Ames on Corporations, § 4). It is not necessarily exclusive in the sense that others may not obtain a similar grant. The difficulty is in determining what force is to be given to the word exclusive in this clause. We cannot say that it has no meaning. A patent right is an exclusive right; it is a monopoly. The owner may prevent the use of the article patented by every other person, unless the right is purchased of him. So, many franchises of an exclusive character, such as ferries, and-the like, have been granted by States. In its application to the present case, if the right to lay railroad tracks is an exclusive privilege, we have seen that the legislature did not grant it. If it is not exclusive, the granting of the right would not be a violation of this clause. It certainly would not be exclusive in every sense, because it is competent for the legislature to grant a similar right to others by a general law, and to do it, not so that others may occupy the respondent’s property, but so that the exercise of the right may operate in competition for the same business. It is difficult to construe this clause as meaning anything less than an absolute monopoly.

But it is not deemed necessary to define its precise signification. That duty must be discharged as cases arise. It is sufficient to say, that it has not been made clear that the clause was violated by the rapid transit act; no exclusive right or franchise was granted to the respondent corporation upon any construction of the clause ; every substantial right existed before the passage of the act, and the conditions imposed, embracing changes of structure and manner of occupying • streets, should be regarded as restrictive of existing rights, and not grants of rights or franchises, within the constitutional sense.

Even if doubts were entertained as to the proper construction of the clause and the act, the rule referred to would require the validity of the act to be sustained. This series of amendments designed to restrict the powers of the legislature in matters of detail, under general phrases and undefined words, is experimental in this State; they must be sustained and applied by a rational and practical construction, so as to subserve the purposes intended and prevent the evils designed to be remedied, but not, by an artificial and technical construction, to extend their application to cases never contemplated. Such application would produce more injury than the amendments were designed to prevent. This court has already, upon two occasions, in respect to other provision's of the series, felt obliged in the furtherance of justice, to adjudicate in favor of a practical, rather than a liberal, construction of the language. In both cases there was quite as much reason as in this, for questioning the constitutionality of the acts of the legislature. While every substantial violation of any of these prohibitory clauses should, and will be, promptly condemned by the court, proper care must be exercised to guard against erroneous rules of construction, to the extent of depriving the legislature of all power to supply the necessary legislative wants of five millions of people, extensively engaged in all the varied pursuits of advanced civilization. The legislature evidently felt embarrassed by these provisions, and attempted to avoid all question in respect to them by passing a general act. The act is general in form, at least, and probably as much so as the object sought to be accomplished would permit, but it is unnecessary to consider the point whether the act is to be regarded as private or local.

The views before expressed answer, also, the objection that the consent of a majority of the owners, or the certificate of the supreme court commissioners, must be obtained. This requirement applies only to cases where street railroads are authorized under general laws, and which the legislature are prohibited from ■ authorizing by private or local laws. It has no application to this corporation, nor does the rapid transit act require such consents or certificate. The affirmative requirement of that act is a compliance with the conditions imposed by the commissioners appointed by the mayor, and nothing more.

Section 4, authorizing the commissioners to lay out and designate routes, embodies the constitutional conditions imposed upon the legislature in passing general laws authorizing the laying down of railroad tracks, and would apply to corporations authorized to be created by the act. Section 36 qualifies and limits the operation of section 4 in respect to coincident routes. Section 4 embraces provisions for a general scheme of new routes and new corporations. The first clause of section 36 limits its provisions by protecting, and impliedly confirming, rights secured by existing charters. This is manifest from the language employed, requiring an existing charter not forfeited, and an existing corporation which had complied with the provisions of its charter as to time, &c.; then, when such a charter, and such a corporation exists, and there is coincidence of route, the corporation is to have “like power,” &c. When? simply “upon fulfillment of the requirements and conditions imposed by the commissioners.” The constitutional condition of consent or certificate, incorporated. into section 4, is not a requirement or condition of the commissioners in any sense, and such condition has no application to a corporation possessing the right to lay down railroad tracks on a designated route by a previous charter. It applies only to such rights thereafter conferred according to the constitution. It is not probable that the legislature intended to impose an unnecessary condition, not required by the constitution, and we may presume that if it had, the language would have been unambiguous. The legislature, by section 4, evidently intended to require the observance of the constitutional conditions in respect to consent, as to corporations authorized to be created by the act, but there is nothing in the act to warrant the inference of intention to extend its application to other cases. The same reason applies also to the requirement of the consent of local authorities, and I refrain, therefore, from considering the question whether the acts of the local authorities proved, amount to consent within the meaning of the constitutional amendment and of section 4 of the rapid transit act.

It is also objected that the act of the commissioners in designating the route is void, because the route designated crosses Broadway 'below Fifty-ninth street, which is forbidden by the rapid transit act. The authority is to designate a route for a railway over, under, through, or across streets and avenues, except Broadway below Fifty-ninth street. The exception seems to apply as well to the word across, as over, under, or through; this is the literal reading, although it is evi- • dent that the same reason might not apply for prohibiting the crossing of a street as for laying a railroad over, under, or through a street. But the commissioners expressly excluded from the routes designated by them, any street, or part thereof, which was excluded by the act; so that if crossing Broadway is prohibited by the act, it is also by the commissioners. I do not think that such exclusion would invalidate all the routes designated. The commissioners are authorized to designate the route or routes for such railway, and whenever the route or routes determined upon coincide, the corporation having the previous right shall have like power, &c. It is not necessary that all the routes should coincide. If any of the routes coincide,- the corporation may build on such coinciding route. Whether, therefore, the route to Broadway, and from Broadway on the opposite side are considered one route or two, either or both coincide with the former designation, even if the crossing is not coincident. The authority is co-extensive with the coincidence of the route. We think that this objection is not fatal to the rights of the respondent to an order to appraise appellant’s damages to property in South Fifth avenue.

The objection that the rapid transit act improperly delegates legislative power to the commissioners is not tenable. The case of Barto v. Himrod, 8 IF. Y. 483, is not controlling. The existence of the law itself, in that case, was made dependent upon the vote of the people. This act was passed by the legislature, and was perfect and obligatory, not depending for its existence upon any contingency whatever.

The county commissioners, representing the interests of the locality, were authorized to designate particular streets in which the road should be built, and to determine the form of the structure and to make rules and regulations for running the trains. These were matters of detail, involving the determination of questions of fact in which each locality had an interest, and which • it was eminently proper the local authorities should determine.

The legislature had the power to determine all these questions itself; but I am not aware of any rule which forbids the legislature from referring such questions to a subordinate tribunal. There is no prohibition in the constitution itself, express or implied, while the practice of the government has been uniformly in favor of referring analogous questions. I apprehend that an act, authorizing a street railroad, might properly refer to a local authority, the power to fix the place in the street where the rails should be laid, and the form of the rails, and to regulate the time and manner of running the trains. The running of trains on steam railroads through cities and villages is now authorized to be regulated by local authorities. The manner of exercising a right or franchise in the cases supposed, has never been regarded as the essential element of the franchise itself, which the legislature could not authorize to be controlled by the people or officers of a locality whose interests are. especially affected by their exercise. The substantial powers conferred upon the corporations authorized to be created by the rapid transit act are particularly specified in the act itself, and the commissioners are authorized to regulate matters of detail, the proper adjustment of which will produce the least inconvenience and injury to the public and adjacent owners in the irse and enjoyment of the public streets. In Clark v. City of Rochester, 28 N. Y. 634, Denio, J., said: “ While general statutes must be enacted by the legislature, it is plain that the power to make local regulations, having the force of law in limited localities, may be committed to other bodies representing the people in their local divisions, or to the people of those districts themselves.” Other authorities in this State are to the same effect: 37 N. Y. 672; 18 Id. 38; 55 Id. 486; see also Cooley on Const. Limitations, 116, &c., and cases cited.

The question of damages is not involved in these cases. In both cases the proceedings are instituted to acquire the title of the respondents in the street in front of their respective premises, and to have the damages appraised. The amount or extent of the damages are questions not properly before the court. It is sought, however, to present the question whether abutting, owners are entitled to damages for an incidental injury to their right of use, or easement, in the streets of the-city, where the fee is in the city itself, upon the ground that the right to condemn the interest of the owners, in these particular cases should be denied, unless it appears that the corporation has acquired a lawful right-to build the road throughout their whole route. True, it would be of no value to the applicant to acquire the-right to build upon the short space involved in these-proceedings unless it has acquired, of can acquire, the right through other parts of the route designated. But can we properly inquire whether it has acquired, or can acquire, such right % It seems to me not. Other-persons are interested, who would have a right to be heard, and who might justly complain that the question had been pre-judged.

To determine what particular occupation of the streets is to be deemed a legitimate public use, involves important and delicate questions.- They were very much debated in this court in the surface railroad cases, and the principles adjudicated in those cases will be regarded as obligatory upon the court in deciding future cases. Whether the structure contemplated to be built and operated will be an invasion of the property of the abutting owners in any of the streets, entitling them to some remedy for damages, or whether it will be regarded as a legitimate use of the streets for the benefit of the public, the inconvenience and annoyance of which private abutting ownership is subject to, cannot, with propriety, be adjudicated upon these appeals.

The criticism upon the terms of the order is not tenable. The order is to be construed in connection with the constitution and the statutes, and the appellants will be at liberty to claim any damages to which they are constitutionally and lawfully entitled.

The order must be affirmed.

Allen, J.

The right of the appellants to compensation for property rights, which will be invaded by the construction and operation of the respondent’s railway, is not the subject of contestation in these proceedings. Neither the nature nor extent of the property rights of the owners of lands abutting upon the streets proposed to be occupied by the railway, in the soil, or to the use of the street, or the measure of damages to which they may be entitled, can be considered upon these appeals. The application concedes that the appellants own or have some interest in the street, which may be affected detrimentally by the appropriation of the street to this new burden and use. The statute, under which the railway company assumes to exercise the 'delegated power to take property to its use, and the order appointing commissioners to "ascertain and appraise” the compensation to be made to the appellants, as owners of or interested in the lands proposed to be taken, make ample provision for full compensation for every property right or interest, which will be destroyed, or the beneficial enjoyment of which will be disturbed or interfered with, by the construction and operation of the railway. Nothing short of this would have satisfied the mandate of the constitution, forbidding the taking of “private property for public use without just compensation.” (Const, art. 1, § 6). The statute and the order'are as broad as the constitution, and they must have a liberal construction to give effect to the benign intent of the constitutional provision in favor of citizens, deprived of their property by the sovereign power.

The decisions of the courts are in harmony with the spirit and the letter of the constitution, and hold the party, who is deprived of the beneficial enjoyment of his property by the State, under the reserved power to take private property for public use, entitled to “just,” that is, full compensation for the property or interest in property of which he is deprived (Fletcher v. A. & S. R. R. Co., 25 Wend. 462; Mahon v. U. &. S. R. R. Co.; Labor's Sup. to H. & D. 156; Bloodgood v. M. & K. R. Co., 18 Wend. 1).

The same principle and right of compensation are recognized by other jurisdictions (Beckett v. Midland R. R. Co., L. R. 3 C. P. 82; Eagle v. Charing Cross R. R. Co., Id. 2 C. P. 638; Chamberlain v. West End R. R. Co., 2 Best & S. 605; Western Penn. R. R. Co. v. Hill, 56 Penn. St. 460).

What is the character or extent of the ownership of the several appellants, in the street upon which their lands abut, or what is the nature of the interest they claim or have in the street or in its use, other than such as is common to the entire public, does not ■appear by the record, or by the allegations of either party to this litigation. Those are matters which, together with the just measure of compensation, must be primarily ascertained and determined by the commissioners of appraisal, and, if legal errors are committed by them, their action may, so far as the law permits, be the subject of review in the courts.

But we cannot, upon these appeals, determine what the property interests of the appellants are, for which compensation should be made, or, in advance, lay down any rule which will aid the commissioners in the performance of their duties. It suffices that there is no valid objection to the order on the ground that it does not amply provide for all the compensation to which the parties can be entitled, under any view of their rights. Whether the title of the railway company to other ■streets which they are using or propose to use for their railway, is perfect, is not pertinent to any question. presented by this record. The questions before us relate, solely, to the condemnation of the appellants’ property; and the regularity or validity of the proceedings of the company to subject other streets to its use cannot be inquired into here, or avail the appellants in opposing the application. Owners and occupants of land upon other streets may waive or release their claim to damages, or the title to the streets may be wholly in the public, and subject to disposal by the legislature. We cannot consider any question relating to other streets, or the rights of others owning property along the line of the proposed route of the railway. The statute under which the petitioners proceed is constitutional, as it only authorizes the company to take private property upon making just compensation, and in this respect it follows the general railroad laws of the State (Laws of 1872, c. 885, § 5 ; Id. 1850, c. 140, § 15; Id. 1864, c. 282, § 2).

The main question is, as to the right and capacity of the petitioner to take any benefit, or exercise any franchise, under chapter 606 of the Laws of 1875, “ further to provide for the construction and operation of steam railway, or railways, in the counties of the State.” The objections to the proceedings, and to the right of the petitioner to take lands for the purposes of its road, are -based upon the provisions of the State constitution, and chiefly upon the amendments to that instrument adopted in November, 1874, arid which became operative January 1, 1875. Article 3 of the constitution was then amended by the addition thereto of several sections, including that now numbered as 18, in and by which, it is claimed, the legislative power is restricted in important particulars, and that the restrictions reach and invalidate the legislation, under which the Gilbert' Elevated Railway Company now asserts a right to construct its railway, and operate it upon the altered plan. If the provisions of that section have the potency claimed for them, they are doubtless more far-reaching in their effect than was-intended by its framers, or anticipated' by the legislature and the people by whom the amendments were-ratified, and they will be found, in their practical results, difficult of interpretation, and embarrassing in their application. In the interpretation of the constitution, all restrictions upon the legislative power in matters affecting the general public affairs of the State, —such matters as come within the general scope of ordinary legislation, having respect to the general interests and the governmental policy of the State,—are to» be strictly construed, and are not to be extended by implication or inference to matters not clearly within the terms of the restrictive clauses. It will not be presumed that the people intended to derogate from the general powers of the legislature farther than they have in express terms declared. All legislative power is expressly committed to the senate and assembly, and any limitation of, or withdrawal of, such power must be express ; and, if ambiguous language is employed, in the imposition of -restrictions, all doubts must be solved in favor of the general powers of the legislature, and the limitations must be confined within the terms-employed. So, too, the amendments and additions, as adopted from time to time, must be read, interpreted .and applied as parts of the entire instrument, and not as isolated provisions. They do not supersede, or annul, the prior enactments of the constitution, except as one clause or paragraph is expressly substituted for another.

There is no repeal of the different parts of the fundamental law of the State, by implication, by the adoption of additional clauses; but the instrument as amended, must be read as a whole, and as if every part had been adopted at the same time and as one law, and effect must be given to every part of it, each ■clause explained and qualified by. every other part. Probably, if there was an insuperable repugnancy between the later additions and the prior enactments, the parts last adopted would have effect as the last and potential expression of the popular will; but the repugnance must, to have such effect, be absolute and irreconcilable. There is, however, no such repugnancy here ; and every part of the constitution, as amended, can have full effect, the amendments and additions being read, in connection with other parts of the instrument, in pari materia. The charter and the chartered rights of the corporation respondent were not affected by the provisions of section 18 of article 3 of the constitution, as adopted in 1874, but remained intact as if that section had been adopted (Const. art. 1, § 18.) There was not, prior to the amendments of 1874, and there was not by these amendments, en-grafted upon or incorporated in the constitution, any inhibition upon the legislature by which it was deprived of the power to grant, by law, a special charter for the purposes for which the respondent was made a corporation. By the constitution, as originally adopted, it was declared that corporations should not be created by special act, except for municipal purposes, and in cases where, in the judgment of the legislature, the objects of the corporation could not be attained under general laws {Const, art. 8, § 1). The legislature, in granting the special charter to the respondent, adjudged that the object could not be attained under general laws, and their action is conclusive. The amendment •of 1874 forbids the legislature from passing any act granting a charter for banting purposes {Const, art. 8, | 4), and from passing a private or local bill incorporating villages {Const, art. 3, § 18); and with these exceptions the legislature has full power by special statutes to create corporations for any purpose which, in their judgment, cannot be accomplished by corporations formed under general laws. The legislature is the sole and final judge in respect to the cases in and purposes for which corporations should be created by' special laws, rather than under general laws, and may, by special act, grant a charter for any lawful purpose other than a bank or village. It follows, that, notwithstanding the amendments to the constitution, the legislature could have granted to the respondent its. charter in 1875, when the act, which, it is claimed, relieves it of some of the restrictions of its charter, was. passed ; and a fortiori, any amendments and modification of the charter not repugnant to or inconsistent, with other parts of the constitution might have been enacted. An absolute prohibition against the creation of corporations for the same purpose would not have deprived the legislature of plenary power over corporations before then created. Such power is inherent in the legislature, and does not depend upon the reserved right to repeal, alter, or amend the charter. Such reservation only affects the contract relation between the State and the corporation, and confers no new power upon the legislature, as representing the sovereignty of the State. It was always within the recognized limits of legislative power to modify in any respect the charter of a corporation of its own creation with its assent, and the right reserved was to do the same without the consent and against the will of the corporators; and it was competent to relieve the corporations of any burdens or restrictions imposed by its charter. So far as chapter 606 of the Laws of 1875 concerns the Gilbert Elevated Railway Company, it permits it to do that which, but for the act, it could not have done, and is permissive, not compulsory, or compels it to do that which was not before obligatory.

It is either a release by the sovereign power of the State of some of the conditions upon which it might, as against the company, have insisted^ or an imposition of additional burdens which, but for the right reserved, would have violated the compact created by the grant and acceptance of the charter; and in either case it is a valid exercise of power.

By section 18 of art. 3 it is declared that no law shall authorize the construction and' operation of a street railroad, except by the consent of the local authorities having the control of the street or highway, and of the owners of one-half in value of the property bounded on the street or highway, or,' as a substitute for the consent of the property-owners, upon the determination of commissioners appointed by the supreme-court, that the railroad ought to be constructed or operated, confirmed by the court. The whole section is open to criticism for want of precision and accuracy of expression, as well as of definiteness in its prohibitions and requirements. But the operation of this part of the section is prospective, and future legislation of the character proscribed is alone prohibited. It does not annul prior legislation, or revoke powers before granted. It prohibits future legislation authorizing the construction and operation of street railroads, except upon a compliance with the prescribed conditions, but it does not prohibit the construction and operation of railroads under prior authorizations.

Former grants of power are saved not only by the terms of the provision, which does not operate on former grants, but by the express terms of the constitution preserving all prior grants and charters (Art. 1, § 18, supra). Indeed, it is conceded that the vested rights of the petitioner were not disturbed by the passage of the constitutional amendments, and that it may condemn lands for, and build any railway in substantial conformity with the limits and provisions of its own charter, without complying with the conditions imposed upon future authorizations. The contention is that the particular mode and manner of constructing and operating the railway, as provided in the charter, was of the substance of the franchise granted, and that a change in the form of the structure, and mode and agency of the operation, is the substitution of a new grant in the place of the old, and brings the corporation within the operation of the constitutional amendments as one deriving its power from the act, and not the original charter. The identity of the corporation with that originally incorporated is not - questioned. The organization is continued under the same governmental direction, and with the same constituent membership. The same general purpose as that for which the charter was granted is now sought to be accomplished under the charter, modified in furtherance of the public interests by the act of 1875. The public object in view which led to the granting of the original charter was the carriage of persons and property, upon and by means of a railway elevated above the streets, and supported by columns and arches, or other proper and sufficient structures, resting upon suitable foundations within the limits of the streets. The power and right of eminent domain was granted to enable the corporation to acquire the title to so much and such parts of the streets as should be appropriated to the purposes of the railway, including the right not only to the surface of the street, but whatever else of property that was appropriated, whether above or below the surface of the soil, upon making compensation to the. owners. The franchise granted was for the construction and operation by a private corporation of an “ elevated railway” for the carriage of passengers and parcels; and the powers conferred, including that of taking property in inmtwn upon making just compensation to the owners, were those necessary to the enjoyment of the franchise. The operation of the railway by the plan known as “ Gilbert’s Improved Elevated Railway,” was contemplated by the legislature, and, perhaps, the corporation was, by the terms of its . •charter, so restricted to the use of that plan, that an abandonment of it and the adoption of another, without the consent of the legislature, might have wrought a forfeiture of the franchise upon a quo warranto by the attorney general. But if this be conceded, it does not follow that such a departure from the charter would have made the corporation a tort feasor or trespasser, and entitled the property-owners to re-enter upon the property taken. It would have been a matter between the State and the corporation alone, and not a subject of individual complaint as for a personal wrong, and would not have annulled the property rights of the corporation.

If it be conceded that the original grant restricted the company to the use of tubular ways, and railways therein, and of compressed air as the motor, still, it by no means follows that this peculiar mode of effecting the object of the charter was of the essence of the franchise granted, or that it entered at all into the granted right to take property on the just compensation to property-owners. The use of the “ Improved Elevated Railway,” or compressed air as a motor, did not depend upon the permission of the legislature, and the reference to their use in the charter was but a part of the details, the modal directions, for the exercise of the franchise actually conferred. It was not the thing granted, but the modus of enjoying the thing granted, and of the performance of the public duty assumed. The franchise and the purpose of the charter was :—

1st. To confer the immunity of a corporation and general corporate rights upon the individuals associating for the enterprise. 2d. To give the corporation the right to occupy the streets quoad the public franchise, and make that lawful which, but for the grant, would have been a nuisance, as an obstruction of a public street. 3d. To enable the corporation to acquire title to property, when the same could not be had with the consent of the owners and by purchase ; and, 4th. To permit the taking of tolls for the carriage of persons and property.

These were the rights granted, and the only rights derived solely and directly from the charter, and they were vested rights, subject to the rights remaining in the legislature to revoke or alter them. They were secured by section 18 of art. 1 of the constitution before referred to, as well as by section 17 of the same article, providing that such acts of the legislature as were in force at the time of the adoption of the constitution, should continue the law of the State, subject to such alterations as the legislature should make concerning the same. The power to avoid the charter, relieve the corporation from conditions stringent or impracticable, impose other burdens and more stringent duties and conditions, and, in furtherance of the public interests, and for the safety of persons using the facilities offered by the company or the streets of the city, to modify and change the character of the superstructure and its foundation and supports, is inherent in the' legislature aside from the power implied by section 17 of the constitution,' quoted supra; and it would require a positive and express revocation of the power to deprive that body of this essential ingredient of legislative power, of which the senate and assembly are the repositories.

Any change in the size, form, position or character of the columns and supports of the superstructure, or in the superstructure itself, and the way, whether “tubular,” or “rail” unenclosed, for the support and retention in their place of the carriages while in transit, and in the propulsive power, did not affect the existence or identity of the corporation, or the substance of the franchise originally granted, or take from the corporation. any rights vested under its charter. The interference with private property was by the occupation of the street for the material structure, upon and by means of which the franchise was to be enjoyed, and not by the use of a rail or tubular way of any particular construction, or the use of any particular motor. Any damages which might be sustained by the adoption of one form of structure, or one agency rather than another, in and upon- an elevated railway, would not interfere with or detract from the right conferred to take property for the general purposes of the corporation, whatever effect it might have upon the measure of damages. The difference between the two classes of railways, as they affect property and the damages to which property-owners are entitled, would seem to be inappreciable.

But of this we are not to judge. It is enough for all the purposes of my conclusion, that the corporation, pursuing this proceeding, is the identical corporation chartered in 1872; that it has been deprived of no rights vested in it by its charter; that the legislature had and has full power to modify and amend the charter ; and that the changes permitted and the "conditions either imposed or dispensed with by the act of 1875, supra, are but modal in their character, and leave the corporation intact, and the charter in full force, so far as it confers any rights or powers upon the corporate body; and that the right to take property and to occupy the streets exists under the charter, and was not conferred by the act of 1875. It would not be claimed chat the legislature could not direct changes in the structure with a view to the public safety and to accomplish the object; and this is all that has been done.

It necessarily follows, that the right to construct a street railroad by the petitioning corporation was granted before the amendment of the constitution, was not affected by it, and that it is not therefore conditioned upon the consent o£ the property-owners along the street, or the substituted authority of the supreme court, as would be the case if the company depended for its authorization to occupy the street upon the act of 1875. The latter act, and the action of the company in adopting and conforming to its provisions, did not affect the franchise of the corporation, or its title to lands, or the light to acquire property. The changes were modal, and the . whole effect was limited to the changes actually made, leaving every other right and incident of the chartered company undisturbed. It is not every alteration, even in matters of substance, that works a change in the corporation, or affects its franshises beyond the alterations actually made; and to hold otherwise would defeat the intention of the legislature and destroy vested rights. It would deprive the legislature of the control of existing and continuing corporations in the interest of the public. Anyihodifi■cation of the charter, whether by the direct action of the legislature amending it or indirectly by a permission to the corporation to modify and change its action, and relieving it from some obligations imposed by the act of its creation, would, by necessary implication, and within the established canons of statutory interpretation, leave every other part of the original charter in full force. The necessity of the observance by the corporation of every other duty, condition and responsibility would still be absolute and imperative, and every right and franchise not directly affected by the modification would remain intact.

Expressio unius est exclusio alterius; and a change or modification of the charter in one or more particulars would indicate the intent of the legislature not to interfere with it in any other respect. The •charter would stand as amended, and have effect in all matters not touched by the amendments, as if they had not been mad.e. The authorities are in accord with the view taken of the effect of any modification of the charter upon the chartered rights of the company (People v. Jones, 63 N. Y. 306; People v. D. & C. R. Co., 58 Id. 152; International Bank v. Bradley, 19 Id. 245; Staats v. Hudson R. R. R. Co., 4 Abb. Ct. App. Dec. 286; Central R. v. Georgia, 92 U. S. 665; Zabriskie v. Hackensack, &c. R. Co., 3 C. E. Green, 178; Buffalo, &c. R. Co. v. Dudley, 14 N. Y. 348).

I do not deem it necessary to consider, and therefore lay no stress upon the clause of the charter authorizing the corporation to “ construct, maintain and operate the said tubular ways and railways by atmospheric power, compressed air or other power,” as showing that it was restricted to a railway inclosed in a tube, and might not employ steam as a motor. Whatever may have been in the minds of the legislature in granting the charter, it has, and had, notwithstanding the amendment of the constitution, the power to amend and modify the charter in any respect, without destroying the franchises or the corporate rights granted. This is entirely consistent with the doctrine that corporations have no powers, and can exercise no franchises, except those expressly conferred, or such as may be incidental to those granted, and necessary to enable them to perform the functions for which they were created, and that such powers can only be exercised, and the franchises enjoyed in the manner and by the agencies prescribed by the acts under which they come into existence. This does not detract from the power of the legislature over these bodies of their own creation, and the objection taken here relates to the powers and functions of the legislature rather than of the corporation. The modifications and changes permitted by the legislature by the act of 1875, in the functional operations of the Gilbert Elevated Eailway Company, are not violative of any of the prohibitions and restrictions of the constitution as amended in 1875. These amendments recognize the validity and continued vitality of authorizations, before then given, to occupy the streets for railroad purposes without the consent of the abutting land-owners ; and the act of 1875 merely leaves the powers of the corporation in that respect where it found them, neither revoking nor expressly reaffirming them. Before the act, the power of the corporation to take lands and construct its railway in the street existed; and it was not affected by that act. The act conferred no powers, and was therefore not in derogation of the constitution forbidding the granting of any authority to occupy the streets for the purpose named, except by the consent of the land-owners, or by the authority of the supreme court.

It is further urged by the appellants, that the act of 1875 imposes upon all existing corporations availing themselves of its benefits, the necessity of obtaining the prescribed consent of property-owners, or in lieu thereof, the authoritative action of the supreme court.

The legislature were not required, by the amendments to the constitution adopted in 1874, to interfere in any respect with existing corporations, or with any rights already vested in them, or to impose any new or additional conditions upon the exercise by them of the powers already conferred.

The positive requirements of the constitutional amendment were, as we have seen, prospective and prohibitory, only in respect to legislative grants of power in the future; and there is no reason to infer that the legislature, in taking action in respect to existing corporations, intended to annex the newly devised conditions to powers already in being, in the absence of any legislative declaration or expression on the subject. The legislature have the undoubted power to annex the condition, or any others, to all grants of power before then made, and, had they been in full sympathy with the spirit of the amendment, and thought it wise, or for the public interests, so to amend the charter, and limit the power, they would have done so; with the constitution before them, the fact that they remained silent on the subject is persuasive evidence that they did not intend to impose any conditions upon the powers granted, not prescribed by the charter, or in terms by the grant itself. The act must, therefore, be read and interpreted as if the amendments to the constitution had never existed. The general purpose of the act is to authorize the construction and operation of railways in, along, over, or through such streets and highways as should be designated in the manner and by the agents prescribed by the act, and by corporations to be thereafter formed in pursuance of the act; and its main provisions, and all, with the exception of those incorporated as incidental to the main purpose, permitting existing corporations to avail themselves of the benefits of certain of the general provisions, have respect to such purpose; and, hence, section 4 necessarily required for the construction and operation of street railways, under and by virtue of the authority of the act, a compliance with the positive requirements of the constitution as amended, and the condition is imposed by section 4 in respect to railways to be constructed and operated under the provisions of that act, and without other authority.

But section 36 has to do with existing corporations, possessing powers conferred by former grants ; and, hence, a discrimination is made in favor of corporations already having authority to occupy the streets. The present respondent is within the first clause of the section, being an existing corporation with authority under its charter to construct a railway upon a route coinciding with that determined upon by the commissioners ; and having the authority, under prior valid legislation, to occupy the streets along the route covered by its charter without the consent of the property-owners, or the action of the supreme court, it was only required to comply with the conditions imposed by the commissioners which relate to the manner of construction and operation, rates of toll, &c., and not to the power to take property or to occupy the streets with its structures.

The succeeding clause of the section relates to the extension, by existing corporations, of their roads over or along streets not covered by their charter ; and, in respect to such, a compliance with the constitutional requirements is made necessary, as the authority is derived from the act, and not from prior legislation.

The whole section shows an intent _ by the legislature not to impose upon corporations occupying the-position, and having the rights of the respondent, the obligation to procure the consent of the land-owners to-the building of their road, as a condition to the exercise of their franchise. To ignore such intent, and infer an opposite intent, would do violence to the language.

The Gilbert Elevated Railway Company, can only by the terms of the act be called upon to comply with the conditions and requirements imposed by the commissioners, and with the conditions of its charter.

As the act of 1875 does not require the consent of the abutting land-owners, neither does it require the assent of the local authorities for the occupation of the-streets by the respondent.

Section 36 of the act is precise in its language,, and free from all ambiguity. It, in terms, imposes every condition, variant from those of the charters, which the legislature intended to impose upon existing corporations undertaking the construction and operation of authorized railways, under the direction of, and subject to such conditions as to-the details of construction and operation, as the commissioners might impose.

The only other objection to the procedure, that I shall notice, will be that taken to the validity of the act of 1875, for the reason that it is a delegation of legislative power, and a commitment of it to the commissioners, for whose appointment provision is made by the act. I have been unable, notwithstanding the ability and earnestness with which this objection was urged, to appreciate its force or to discover the vice alleged in the act itself, or in the duties which by the act are devolved upon the commissioners, especially as far as existing corporations are concerned.

The law itself became valid and effectual as the law of the land by its enactment by the legislature. Its execution was committed to the tribunals and officers named.

The administration of all the laws of the State is with the different departments of the government, and the administrative, judicial, and executive officers, to whom their execution is committed ; but the statutes, as the ordained laws of the State, are none the less valid and obligatory, because they will not execute themselves or because it may depend upon the discretion, judgment and action of individuals or of a community, or of a judicial tribunal, whether they hall be executed at all, or whether the occasion and circumstances for their enforcement exists, or if they are to be executed, by whom, in what place, under what circumstances, upon what conditions, and in what manner the will of the legislature shall be carried out.

The statute book is full of laws of this description, both general and special. The general highway laws are to be executed by the officers named, and roads and highways are to be opened and worked, and bridges built, when, and as the proper authorities shall direct but, when done, it is by authority of the general law, and not by virtue of any legislative action of the officers. They act ministerially. So, too, the laws authorizing municipal corporations, by consent of the inhabitants or the vote of the municipality, to aid private corporations in the construction of works quasi public, require the direct action of the body, before the law can be made effectual for any purpose. That is, its execution is made to depend upon the will and action of others, but this is not a delegation of legislative power. When action is taken under such a law, it is in execution of the declared will of the legislature, and in virtue of the law enacted by it (Bank of Rome v. Village of Rome, 18 N. Y. 38; Fearing v. Irwin, 55 N. Y. 486). This statute cannot be distinguished, in principle, so far as the objection under consideration is ■concerned, from those before the court in the cases ■cited, or from others, which, in other cases which might be quoted, have been sustained ; and it is not .necessary to elaborate an argument to show that this ¡statute is not open to the objection taken.

Upon the whole case, I see no objection to the right ■of the petitioner to the appointment of commissioners of appraisal, and I am of opinion that the order is in substantial compliance with the requirement of the ■constitution, and is sufficiently comprehensive to authorize an award of any damages to which the appellants are by law entitled.

The order should be affirmed.

Earl and Miller, JJ., concurred.

Folger, J.

The judgment in the case of the N. Y. Elevated R. R. Co., having adjudicated the constitutionality of the act of 1875, in all its parts, I yield to that judgment as the law of the land, and therefore concur in this.

Rapallo and Andrews, JJ., concurred on the authority of the same case.

Order affirmed. 
      
      See pp. 393, 395; and Horst v. Moses, 48 Ala. N. S. 129.
     
      
      See 1 Abb. New. Cas. 157; 67 N. Y. 575; 7 Hun, 39; 9 Id. 153.
     