
    The People of the State of New York ex rel. New York Electric Lines Company, Appellant, v. William B. Ellison, Commissioner of Water Supply, Gas and Electricity of the City of New York, and Others, Respondents.
    First Department,
    November 5, 1906.
    Municipal corporation—subways for electric wires in the city of New . York — electric lines company not entitled to build independent subways. ■ 1
    The New York Electric Lines Company, although entitled under chapter 483 of the Laws of .1881 to lay electric conductors underground in the streets of cities, . on obtaining permission to use such streets from the common council of the .city, and although such permission was granted to said company by the board of aldermen of the city of New York in 1883, said company was .bound nevertheless, not having proceeded - to act under that permission; to have its plans approved by the commissioners of electrical subways of said city or the officials who succeeded to the powers of "said board, as required by chapter 534 of the Laws of 1884, and by chapter 499 of the Laws of 1885, within sixty days after the passage of said act of 1885. " - x
    Said.act.of 1885 requiring the approval of plans was a legitimate act of -the. Legislature, under the police power, arid did not impair any contract rights of said company when it bad not acted upon said permission or procured the approval of its plans within sixty days after the passage of said act.
    Moreover, as the board of electrical subway commissioners had, pursuant to its powers, contracted with the Consolidated Telegraph and Electrical Subway Company for the construction of a subway to be used by all companies authorized to lay wires underground in said city, which contract was ratified by chapter 716 of the Laws of 1887, the said New York Electric Lines Company is not entitled to a mandamus to compel the said authorities to allow it to construct an independent subway under said prior permission in the absence of an allegation that it cannot obtain space in the subway built by the said subway company.
    The prior consent of the said city that the New York Electric Lines Company construct a subway, not having been acted upon by said company, was not a Contract with or franchise granted by the city, and the rights of said company' were not impaired by the subsequent statute or action of the municipal board thereunder authorizing the construction of a subway to be open to all users.
    Appeal by the relator, the New York Electric Lines Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of July, 1906, resettling a prior order denying the relator’s motion for.a peremptory writ of mandamus.
    
      Alton B. Parker, for the appellant.
    ■Theodore Connoly, for the respondents.
   Ingraham, J.:

The relator was incorporated under the General Telegraph Act (Laws of 1848, chap. 265, as amd. by Laws of 1853, chap. 471, and subsequent amendments). Upon its incorporation the relator had power to construct lines of telegraph along and upon any of the public roads and highways, and across any of the waters within the limits of the State, by the erection of the necessary fixtures. By section 2 of chapter 471 of the Laws of 1853 the relator was authorized to erect and construct, from time to time, the necessary fixtures for such lines of telegraph upon, over or under any of the public roads, streets and highways. By chapter 483 of the Laws of 1881 (amdg. Laws of 1879, chap. 397, § 1) the relator was authorized “ from time to time, to construct and lay lines of electrical conductors under ground in any city, village or town within the limits of this State * * * provided that such company shall, before laying any such line in any city, village or town of this State, first •obtain from the common council of cities * * * permission to use tlie streets within such city, village or town for the purposes herein set forth.” On April 10, 1883, the board of aldermen of the city of New York passed a resolution “that permission be and hereby is granted to the New York Electric Lines Company to lay wires or other conductors of electricity in and through the streets, avenues and highways of New York City, and to make connections of such wires or conductors underground by means of the necessary vaults, test-boxes and distributing conduits.” Under this authority the relator on July. 27,1886, applied to the commissioner of public works for a permit to make excavations in certain streets in the city of New York for the purpose of laying the wires or other conductors of electricity in and through the streets,-avenues and highways of the city of New York. This- permission having been refused, an application was made on September 7,1886, to the Court of Common Pleas of the. city of New York for a mandamus requiring the commissioner of public works to grant to the petitioner , a permit to make excavations in certain streets in the city of New York for the purpose of laying the wires or conductors of electricity. This application was denied (People ex rel. New York Electric Lines Co. v. Squire, 14 Daly, 154, 166), and the decision of the court was affirmed by the Court of Appeals (107 N. Y. 593). The permission was refused upon the ground that the relator had not obtained the approval of the board of commissioners of electrical subways of the city of New York to its plans and construction based upon section 1 of chapter 534 of the Laws of 1884 and chapter 499 of the Laws of 1885. Section 3 of chapter 499 of the Laws of Í885 provides that when an'y company operating or intending to operate electrical conductors in any such city shall desire or be required to place its conductors or any of -them Underground * * * it shall be -obligatory upon such company to file with said board of commissioners a map or maps made to scale showing the streets or avenues or other highways which are desired to be used for suck purpose, and giving the general location, dimensions and course of the underground conduits- desired to be constructed. Before any such •conduits shall be constructed itshall be necessary to obtain the approval by said board of said plan of construction so proposed by such company.”

In that proceeding the relator claimed that this law was a violation of the Constitution of the United States as a law impairing the obligation of contracts, but the Court of Appeals refused to sustain that claim on the ground that it did not purport to deny to the relator any privilege theretofore granted, “ but they did require that they should be exercised with due regard to the claims of others, and in such a way that they should cease to constitute a public nuisance, and should be enjoyed in such a manner as to inconvenience and endanger the general public as little as possible; ” that “ such power is preeminently a police power, and it is within the legitimate authority of a Legislature to delegate its exercise to municipal corporations.” In closing the discussion the court said : The claim made by the relator in this case would authorize it to tear up the streets of the city at such times, in such places and under such circumstances as it might itself determine, regardless of the public convenience and welfare, and the rights of other claimants to the occupation thereof, and place it beyond the reach of all power by the Legislature to regulate the mode and manner of the enjoyment of its rights. We do not think such a claim can be sustained. It is neither within the terms of its contract, and if it were, it is still subject, in the. respects mentioned, to the police power of the State.”

I have searched this record in vain to find that the relator stands in any different position in relation to its rights to a permit to use the public streets than it did in 1886, when its application for a mandamus was made and denied. From the affidavits upon which this application was made it appears that there was submitted to the board of commissioners of electrical subways certain plans of the relator. These plans were not approved- On June 30, 1886, the commissioners adopted a resolution in favor of a subway which should in the main conform to certain general requirements, and it would appear that proposals for the 'construction of subways under the direction of the board were received from the relator and others and referred to the engineer and counsel for the commission. ■ Subsequently on July 13, 1886, the engineer and counsel reported to the bear'd, and on July 16, 1886, the board accepted the proposal of the Consolidated Telegraph.and Electrical Subway Company to build a subway in the streets of the city of New York necessary for the placing of electrical wires under the streets of the city of New York. The president of the relator protested against this contract being given to any company but the relator, and thereafter no application was made to the board of commissioners of electrical subways or to the board- of electrical control' by the relator for the approval of its plans, or for permission to construct a subway. Immediately after this action of the board, however, the relator commenced the proceeding which has been referred to, a denial of which application was affirmed by the Court of Appeals (107 N. Y. 593). Nothing further was doné by the relator until December 8, 1905, when a formal application for a permit to open the streets was made to the commissioner of water supply, gas and electricity, which Was refused, whereupon this proceeding was commenced for a peremptory writ of mandamus directed to the commissioner of water supply, gas and electricity of the city of New York, requiring him to- grant the application of the relator for permission to construct subways or conduits under the surface of certain streets of the city of New York and for a permit to open-said streets for the purpose of such construction, and also directed to the president Of the borough of Manhattan and the president of the borough of The Bronx, requiring them and each of them to approve- the- said permit to open the streets in their respective boroughs. A failure of this relator to have the plans approved by the board of- commissioners of electrical subways or the officials who have succeeded to the power vested- in such board, as required by chapter 534 of the' Laws of 1884 and chapter 499 of the Laws of 1885, justified the court below in denying this application under the decisio'n-’of the Court of Appeals in, 107 New York, 593.

I think, however, that the relator must fail in its application for another reason. -

Subsequent to the passage of chapter 483 -of the Laws of 1881, and on the l-4th day of October, 1882, the relator was incorporated under the General Telegraph Act (Laws of 1848, chap. 265, as amd. supra), and on April 10, 1883, under that act obtained permission from the common council to "use the streets, avenues and highways of the city of New York. On June 13,1885, subsequent to its incorporation and the permission granted by -the common council, but before the relator had acted under the permission obtained from the common council, chapter 499 of the Laws of 1885 was passed. By that act the board of commissioners of electrical subways was authorized to be created. Section 3 of that act provided: “ When any company, operating or intending to operate electrical conductors in any such city, shall desire or be required to place its conductors or any of them under-ground in any of the streets, avenues or other highway of any such city, and for that purpose to remove the same from the surface thereof, and shall have heen duly authorized to do so, it shall be obligatory upon such company to file with said board of commissioners a map or maps made to scale, showing the streets or avenues or other highways which are desired to be used for such purpose, and giving the general location, dimensions and course of the underground conduits desired to be constructed. Before any such conduits shall be constructed, it shall be necessary to obtain the approval by said board of said plan of construction so proposed by such company; and said board has and shall have power to require that the work of removal and of constructing every such system of underground conductors shall be done according to such plan so approved; ” and section 4 provides that in case no suitable plan is proposed or in use, within sixty days after the passage of the act, it shall be the duty of such board to cause to be devised and made ready for use such a general plan as will meet the requirements of the act of 1884 and of this act, and the board shall have full authority to compel all companies operating electric wires to use such subway so prepared in accordance with the provisions of this act.

This act of 1885 was held constitutional by the Court of Appeals in 107 New York, 593. The board of electrical subway commissioners organized on July 20, 1885, and on August 13, 1885, passed a resolution reciting that the sixty days required by the act of 1885, by which any company operating or intending to operate electrical conductors in any such city were required to file with the board of commissioners a map or plan showing the streets or avenues or other highways desired to be used for such purposes and the general location of the underground conduits, had expired, and resolved “ that every corporation, association or person using or desiring to use any electrical conductors in the City of New York, do forthwith file with this board such map or maps and other suitable descriptions as will- fully inform tliis B'oard concerning the location, courses, termini, spaces, -and all other details and requirements, coilcerning the electrical conductors operated or desired to he.operated b‘y such corporation, association or person in the City of New York, to the end that this board may be enabled to make due provision for .said conductors in the general plan and subway to be devised as . aforesaid, and which it has full authority to require to be used for all the electrical conductors aforesaid.”

On August 13, 1885, the president of the relator and others submitted plans and. documents, which were laid'over for future action by the hoard. The plans which were submitted by the relator and Other companies for the construction of these subways were considered by the hoard, and on June 30, 1886, the commissioners adopted a resolution which favored a subway .which conformed to certain general requirements, and the engineer of the commission was called upon to report on. such data as lie had collected regarding' such requirements, and all proposals for the construction of subways under the direction of' the commissioners were referred to the counsel for the commissioners for his assistance in preparing such report, and on July 13, 1886, the engineer and counsel reported on. the plans and specifications. By this report' the whole subject of subways was considered. The plans of the relator were rejected and the plans of a corporation known as the'Consolidated Telegraph • and Electrical Subway Company were accepted, and an agreement .was made between the commissioners of electrical subways of the city of New York and the Consolidated Company, which was executed. By that contract the corporation agreed to build, equip, maintain and operate the subways contemplated as provided for in the contract. Such subways were to he built by.the corporation in accordance with the plans, and specifications furnished by the board, which subways were at all1 times to be kept in good repair at the cost' of the corporation ; that the spaces in said subways shall be leased by the party .of the second part to any authorized company, person or firm operating or intending to operate electrical1 conductors in any street, avenue o'r highway in the' city of New York-that may apply for the-same. * * . * If at any time the-space-in such subways shall not he sufficient for all companies so applying for the same, such space shall be provided as shall be so needed by the party of the second part at its own cost, subject to the approval of the parties of the first part and their successors, as in the original construction. * * * The party of the second part may fix a fair scale of rents to be= charged, according to the kind of conductors and the amount of space required, which rents shall be at the same rate to all occupants. * * * In case any dispute shall arise between the party of the second part and any company occupying or desiring or required to occupy said subways, the same shall be referred to the parties of the first part and their successors for settlement, whose decisions shall be final.”

On April 7, 1887, there was another contract between the commissioners of electrical subways and the Consolidated Company which to some extent modified the contract 'of July 27, 1886, and contained additional provisions to insure the construction of the subways which would accommodate all those using or intending to use the streets of New York for electrical conductors. By this contract it was provided that the parties of the first part (commissioners) agreed to use all lawful means within their power to compel all authorized companies or persons using electrical conductors to comply with the provisions of law and to place their conductors in. said subways, and to pay a fair rental for the space occupied therein.

These two contracts were expressly ratified by section 6 of chapter 716 of the Laws of 1887. Under these contracts thus ratified and other contracts by the board or its successors, subways have been constructed and maintained in the city of New York until the present time. All corporations desiring to use the streets of the city of New York for electrical conductors have occupied these subways, and there is no allegation that this relator cannot obtain space in these subways for the use of any electrical conductors that it may desire to use. ,

I think that under these provisions of law and contracts made under legislative authority, and ratified by the Legislature, the right of this relator to construct a subway lapsed, it having failed to procure the approval of its plans for the construction of such subway within sixty days after the passage of the act of 1885. The provision of the act which requires all corporations which should construct subways in the streets for the purpose of conducting' electrical conductors to tile certain maps, etc., was á police regulation, and a failure of the relator to procure the approval of its plans within the time provided for by the Legislature, and the adoption by the board of a system under the contracts approved by the Legislature, by which subways were constructed for the use of those who desired to use the streets for electrical purposes, was inconsistent with the existence of the right of any corporation or individual to use the streets to construct a subway. ' There is no allegation that all persons desiring to use subways in the' city of New York are not supplied by the existing system. There are careful provisions in the contract between the commissioners of electrical subways and the Consolidated Company for supplying all those who desire to use the. streets for electrical con ductors with space in the subways. The use of the streets in New York for water and gas pipes, sewers, underground railroads, electrical conductors and surface railroads has grown so in late years that it has become impossible to allow every individual or corporation desiring to use such streets to make such construction in them as they wished ; but all use of streets granted to corporations and individuals is necessarily subject to the police power of the State, by which such use can be regulated as the public interests require, and all such grants are necessarily subject to the- limited area of the streets and the requirements of the public for other uses than that 'for any particular purpose for which a grant has been made; and I think that when, under legislative authority, the local officials have caused subways to be constructed in the streets for the use of all those who desire to use the streets for electrical conductors, such provisión superseded the right of any existing corporation to construct other subways in the public streets for a similar use for which existing subways had been constructed and maintained. That a right granted more than twenty years ago to construct subways in the public streets, where no attempt has been made to act under it, and where, in the meantime, the public authorities have provided ample means for the use of those desiring such a use as was authorized by this grant, may well be considered as having lapsed and cannot now be revived, in violation of the rights acquired by others and to the public disadvantage.

Nor do I think there was any contract between the relator and the city of New York which was impaired by this action of the Legislature and the board acting under its authority. To constitute a contract between the city of New York and the relator I think something more must exist than the mere granting to the relator permission to use its streets. No franchise was granted by the city of New York. The 'franchise, if any, was granted by the State. Undoubtedly, when the consent of the city was given, if that consent had been acted upon and the subways constructed, a property right would have been acquired which the city could not take without compensation ; but where, under these statutes, a mere right is given, subject to the consent of the city, the consent of the city itself grants no franchise or creates no contract until it is acted on by the grantee. This consent is spoken of by the learned counsel for the relator as a grant from the city. The statute (Laws of 1881, chap. 483, amdg. Laws of 1879, chap. 397,' § 1) provides that “ any company or companies organized and incorporated under the laws of this State * * * are hereby authorized, from time to time, to construct and lay lines of electrical conductors under ground in any city,” etc., “ provided that such company shall, before laying any such line in any city, village or town of this State, first obtain from the common council * * * permission to use the streets within such city, village or town for the purposes herein set forth.” On April 10,1883, the board of aldermen of the city of New York passed an ordinance which provided “ that permission be and hereby is granted to the New York Electric Lines Company to lay wires or other conductors of electricity in and through the streets, avenues and highways of New York City, and to make connections of such wires or conductors underground by means of the necessary vaults, test-boxes and distributing conduits.” The relator gets its right to use the streets from the State. But that right does not accrue until the municipal corporation gives permission. When that permission is once given then the right is complete. But it cannot be that a municipal corporation, having given its permission, is bound hand and foot so that the permission can never be revoked, although the corporation neglects to act under it and construct its lines for such a period as would divest a person of real property by adverse possession. All of the elements of a contract are wanting. The relator assumed no obligation whatever in relation to the construction of the subway. All it ever agreed to do was that when it built the subway it would comply with the conditions imposed. Until the permission granted was accepted' by some act of the corporation under it I think there was no contract. If the relator had agreed to construct these subways within a specified time a different question would have been presented, buttin all the cases where these grants of franchises have-been held irrevocable it was because there was an obligation to construct the thing granted or the grantee had acted under the grant and had constructed it. In those cases a consideration would be apparent. The relator had not acted under the permission granted ■by the common council. Ho subway has been built, and as I view it, no right was acquired that was not subject to legislative control.- ' The order should be affirmed, with fifty dollars costs and disbursements. ' ■

O’Brien, P. J., Clarke, Houghton and Scott, JJ., concurred.

Order affirmed, with fifty dollars costs and disbursements.- 
      
      See U. S. Const, art. 1, § 10, subd. 1.—Rep.
     