
    The New York & Long Island Railroad Co., Plaintiff, v. John H. O’Brien, Defendant.
    (Supreme Court, New York Special Term,
    March, 1906.)
    Railroads and railroad companies — Interest in lands and right of way — Right to use streets and highways — Validity of consents — Law validating previous consents: Interference with grant.
    Constitutional law — Provisions relating to corporations — Provisions relating to street railways.
    Laws of 1860, chapter 10, made it unlawful to lay, construct or operate any railroad in, upon or under any or either of the streets or avenues of the city of New York except under future legislative authority, but Laws of 1880, chapter 582 (Tunnel Act) operated to remove those restrictions in case certain consents were obtained. The plaintiff, incorporated in 1887 under the General Railroad Law of 1850 (chap. 140) for the purpose of constructing an underground railroad in the city of New York and Long Island City, relying upon the Tunnel Act, obtained the consents required thereby; but, before it had obtained them all the Tunnel Act was repealed and, though analogous provisions, framed to avoid a constitutional defect in the Tunnel Act, had been incorporated into the Railroad Law of 1890, those provisions were limited to corporations thereafter to be incorporated. By Laws of 1892, chapter 702, this limitation was removed and the provisions were made retroactive. In 1891 the authorities of Long Island City consented to the construction of plaintiff’s road on a route different from that mentioned in the articles of association and the State of New York granted a patent for the construction of the road across the East river. The plaintiff began work in 1891 and then suspended work for nearly thirteen years, but resumed it in 1905 and procured from the property owners permission to erect structures and sink shafts in the East river and in property which it had purchased in Long Island City, and in its property abutting on Forty-second street in New York city, relying upon various statutes extending, until January 1, 1907, the time within which to complete its road. Upon motion to continue pendente lite a preliminary injunction in an action to stay the revocation of permits heretofore issued by the municipality, it was contended that the construction carried on by the plaintiff was unauthorized by reason of the invalidity of its franchises and its failure to comply with the conditions upon which they were granted.
    
      Held, the Tunnel Act, in so far as it authorized a railroad company incorporated under chapter 140 of the Laws of 1850 to build its railroad and a tunnel under the streets of the city with the consent of the local authorities and owners of abutting property, was valid and constitutional.
    The objection that plaintiff’s articles of association failed expressly to mention and rely upon the Tunnel Act is unimportant, for if reference thereto were necessary it was sufficiently made by mentioning the Railroad Act of 1850 “ and the acts' amendatory thereto and supplementary thereof.”
    The consents of the local authorities obtained by plaintiff, having been confirmed by the amendment of 1892 to section 16 of the Railroad Law, the contention that plaintiff’s franchise was invalid because the requirements of the statute (L. 1886, chap. 642), providing that such franchises be sold at public auction had not been satisfied, was untenable, that act having been repealed by the Railroad Law (L. 1890, chap. 565).
    Objections to the validity of the consents obtained by plaintiff from the local authorities of the two cities upon the ground (1) that plaintiff had not complied with the necessary formalities to locate the routes described in said consents; and (2), that no consent could be given to a route different from that specified in the articles of association, considered, and held to be 'without weight, and that the court would not determine upon meagre affidavits that said consents were so inconsistent with plaintiff’s articles of association as to be invalid.
    Where, prior to constructing its tunnels in any “street, road or public place” the plaintiff procured, as required by the statute then in force, “ the consent of the property owners of one-half in value of the property bounded on the line of such street, road or public place,” a contention that it should have obtained the consent of the property owners along every street in its route before beginning to construct in a,ny street, seems without weight.
    The validity of plaintiff’s franchise, in which a large amount of capital is invested and great public interests are concerned, cannot properly be determined upon affidavits, and where to resolve the question against the corporation would permit such interference with its work of construction as would prevent its completion within the time set therefor, upon which its franchise is conditional", and cause irremediable damage and the defendant eouid not be prejudiced by a postponement the court may refuse thus to determine the question but instead may properly make a restraining order permitting the continuance of the work under the alleged franchise until the question may be tried in court according to the rules of evidence.
    Motion to continue an injunction pendente lite. The opinion states the case.
    
      Strong & Cadwalader, for plaintiff.
    John J. Delany (Corporation Counsel), for defendant.
   Blanchard, J.

This is a motion to continue pendente lite a preliminary injunction restraining the defendant from interfering with the plaintiff or its contractors in. the construction of the plaintiff’s tunnel. The plaintiff was incorporated July 30, 1887, under chapter 140, Laws of 1850 (Railroad Act). The route and terminals of the railroad were stated in the certificate of incorporation as follows: “ Commencing in Long Island City, Queens county, N. Y., at a point on or near the line of Borden avenue, and distant about one mile from the East Eiver; thence partly under ground and partly in cut to the East Eiver; thence under the East Eiver by means of a tunnel and under streets and lands in the city of New York, county of New York, to a connection with the New York Central and Hudson Eiver Eailroad at the comer or at a point near the Ninth avenue and Thirtieth street; with a branch on the north to a connection with the New York Central and Hudson Eiver Eailroad at or near the Grand Central Depot, in the city of New York; with a branch southerly to connect with what is now known as the Hudson Eiver Tunnel in the vicinity of Washington Square, in said city of New York.” By chapter 10, Laws of 1860, it was made unlawful “ to lay, construct, or operate any railroad in, .upon or under any or either of the streets or avenues of the city of New York, * * * except under the authority and subject to the regulations and restrictions which the Legislature may hereafter grant and provide.” The plaintiff, relying upon chapter 582, Laws of 1880 (the so-called Tunnel Act), applied to the authorities of New York city and Long Island City for permission to construct this road. On December 23, 1890, the board of aldermen of New York city passed an ordinance, which was approved by the mayor, whereby the city assented “to the construction of a double track railroad by the New York & Long Island Eailroad Company in, by and through a tunnel beneath the surface of Forty-second street, from its easterly end to a point therein between Tenth and Eleventh avenues, in said city.” On October 27, 1891, the board of aldermen of Long Island City passed an ordinance which was approved by the mayor, whereby the city assented to the construction of the plaintiff’s road along the route described as follows: “ Beginning at a point under the ground, at or near the westerly end of Fifth street and in the middle line thereof at low water mark on die east side of the East Elver in said city; thence running easterly, beneath streets and private property to a point at or near the intersection of Fourth street and West avenue; thence along Fourth street to or near Van Alst avenue, with a station hereafter to be located between the easterly shore of the East Eiver and Van Alst avenue; thence northeasterly by a curved line to Meadow street.” The ordinance further provided: The said railroad shall be constructed along route one (which embraced that portion of the route above quoted) from the point or place of beginning in, by and through a tunnel or tunnels to a point in said Meadow street between Pearson and Davis streets, or thereabouts.” On January 5, 1891, a patent was granted by the State of Hew York, acting through the commissioners of the land office, granting to plaintiff a right of way within which to construct a tunnel for its road beneath the East river, from the easterly end of Forty-second street, in Hew York city, to the westerly end of Fifth street, in Long Island City. Between June, 1892, and July 30, 1892, the plaintiff began constructing its road, and expended thereon more than ten per cent, of its capital stock. Its building operations were then suspended for nearly thirteen years. In 1905 the plaintiff, with the knowledge of the corporation counsel, procured from the proper authorities permission to erect structures and sink shafts and tunnels in the East river and in property which it had purchased in Fourth street, Long Island City. The plaintiff also sunk a shaft in its property abutting on Forty-second street, Hew York city. In thus resuming operations the plaintiff relied upon chapter 775, Laws of 1867, and chapter 700, Laws of 1895, as amended by chapter 647, Laws of 1899; chapter 617, Laws of 1901; chapter 487, Laws of 1902, and chapter 597, Laws of 1903, as extending till January 1, 1907, the time within which to complete its road. In August, 1905, the plaintiff procured from the fire commissioner licenses to use and keep explosives at the four shafts where it was prosecuting its work; and in October and November, 1905, it obtained permits from the building department to erect temporary structures. The plaintiff has vigorously prosecuted its work since that time. The inspector of combustibles of the fire department on January 22, 1906, and the superintendent of the building department on January 24, 1906, attempted to revoke the respective permits issued by their departments. The plaintiff at once began the present action to stay the revocation of these permits, and a preliminary injunction was granted therein. The defendant contends that the construction now carried on by the plaintiff is unauthorized by reason of the invalidity of its franchises and its failure to comply with the conditions imposed upon its franchises. By reason of chapter 10, Laws of 1860, the plaintiff, upon its incorporation in 1887, obtained no power to construct a railroad in any street or avenue of New York city. People ex rel. N. Y. City & Westchester R. Co. v. Commissioners, 81 App. Div. 237, 241, affd., 176 N. Y. 577; People ex rel. N. Y., N. H. & H. R. R. Co. v. Commissioners, 81 App. Div. 242, 244, affd., 175 N. Y. 516; Matter of N. Y. District R. Co., 107 N. Y. 42, 54; Matter of Washington St., A. & P. R. Co., 115 id. 442. By its articles of association, however, the plaintiff had legal capacity to acquire power and authority to construct such a railroad, and by virtue of its compliance with certain statutory requirements it is contended that it acquired such power and authority. The Tunnel Act provided: “Whenever, according to the route and plans adopted by any railroad company, heretofore or hereafter formed, under any special act of the Legislature of this State or under chapter one hundred and forty of the Laws of eighteen hundred and fifty, for the building of its railroad, it shall be necessary or proper to build said road, or any part of the same, underground, or to tunnel or bridge any river or waters, it shall be lawful for said company to enter upon and acquire title to and use such lands under water and uplands. * * . * Provided, further, that whenever such road, or any part of the same, is intended to be built within the limits of any city or incorporated village of this State, and to run by means of a tunnel underneath any of the streets, roads or public places thereof, the said company, before building the same underneath any of said streets, roads or public places, shall obtain the consent of the owners of one-half in value of the property bounded on the line, and the consent of the board of trustees of the village, by resolution adopted at the regular meeting and entered on the records of said board, and of the proper authorities having control of said streets, roads or public places, * * * and all railroad companies constructing their road or roads under the provisions of this act shall be subject to all the provisions of the General Eailroad I-aw of 1850.” As to the railroads authorized by it the Tunnel Act apparently operated to remove the restrictions contained in chapter 10, Laws of 1860. Such would seem, upon reading the statutes together, to have been the effect, and such has been the burden of judicial opinion regarding the Tunnel Act. Matter of District R. Co. 107 N. Y. 42, 54; People ex rel. N. Y., N. H. & H. R. R. Co. v. Commissioners, 81 App.Div. 242, 244. An intimation to the same effect appears in section 1943 of chapter 410, Laws of 1882 (Consolidation Act), which substantially re-enacted the prohibition contained in chapter 10, Laws of 1860, subject to the regulations .and restrictions which the Legislature may have granted since the thirtieth day of January, eighteen hundred and sixty, or may hereafter grant or provide.” The defendant contends that since the Tunnel Act forbids construction of an open cut railroad in or through any street or public place” it cannot be invoked by the plaintiff, which, by its articles of association, and the form of consent which it obtained from the local authorities of Long Island City, is authorized to run partly in open cut. In the absence of evidence of open cut construction in or through any street or public place,” this objection seems to be without weight. Similarly, the objection that the articles of association of the plaintiff failed expressly to mention and rely upon the Tunnel Act is unimportant. If reference were necessary, it was sufficiently made by mentioning the Railroad Act of 1850 and the acts amendatory thereto and supplementary thereof.” In Matter of District Railway, supra, the New York District Railway Company having failed to secure the consent of either the local authorities or the owners of abutting property, followed the provisions of the Tunnel Act and procured the appointment of commissioners by the General Term, and sought to treat their report as a substitute for the consents both of the local authorities and the property-owners. It was held that the provisions substituting for the consent of the local authorities the report of commissioners appointed by the General Term were in contravention of section 18, article 3 of the State Constitution, and, therefore, were unconstitutional. The General Term, however, in the ease above mentioned, stated (at p. 627) that notwithstanding this constitutional defect the company “ may obtain the consent of the local authorities and of the requisite number of property-owners. These provisions are valid and separable from what follows.” The Court of Appeals also said (at p. 55) : Very possibly, the act may stand as an authority for the construction of an underground street railway upon the condition of the assent of the city authorities and the half of abutting values, and rejecting all the provisions for the appointment of commissioners, whose orders shall be a substitute. Further than that we do not deem it our duty to go.” See Underground R. R. Co. v. City of N. Y., 193 U. S. 416, 426. The rule as to the separability of valid and invalid parts of a statute is stated in Cooley on Constitutional Limitations, seventh edition, page 246, as follows: “ Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” See also Lewis’ Suth. Stat. Const. (2d ed.) 576. The rule thus stated is settled in the law of this State. Matter of Fuller, 62 App. Div. 428; Matter of Village of Middletown, 82 N. Y. 196; People ex rel. Devery v. Coler, 173 id. 103. Applying to the Tunnel Act the principle of statutory construction thus established, it appears that the act was valid and constitutional in so far as it authorized a railroad company incorporated under the Bailroad Act of 1850’ to build its railroad in a tunnel under the streets of a city with the consent of the local authorities and of the owners of one-half in value of the abutting property. The defendant contends that the requirements of chapter 642, Laws 1886 (the so-called Cantor Act), which required that franchises to use the streets be sold at public auction to the highest bidder, were obligatory upon the plaintiff and have not been satisfied. During the operation of the Cantor Act the plaintiff, without complying with its provisions, obtained, without bidding or purchasing at public auction, consent from the local authorities to use the streets of Hew York city. Before the plaintiff obtained from the local authorities consent to use the streets of Long Island City the Cantor Act was repealed by chapter 565, Laws 1890 (Bailroad Law), the analogous provisions of which applied only to street surface railroads. §§ 90-109. Before this latter consent was obtained, however, the Tunnel Act, upon which it depended, had been repealed by the Bailroad Law. Provisions analogous to the Tunnel Act, framed to avoid the constitutional defect in the Tunnel Act, had been enacted in the Bailroad Law of 1890, but they were applicable only to corporations “hereafter incorporated.” § 16. At this juncture the consents which the plaintiff had obtained from the local authorities of New York city and Long Island City were perhaps defective. By chapter 702, Laws of 1892, however, which went into effect May 19, 1892, section 16 of the Bailroad Law of 1890 was amended by striking out the words “ hereafter incorporated” and inserting the words “including corporations organized under chapter one hundred and forty of the Laws of eighteen hundred and fifty.” Bor the purpose, apparently, of making the provisions of the statute retroactive, the phrasing was altered to read as follows: Such road or any part of it may be built within the limits of any city or incorporated village of this State, and run by means of a tunnel underneath any of the streets, roads or public places thereof, provided such corporation shall, before constructing the same underneath any such street, road or public place, have obtained the consent of the owners of one-half in value of the property bounded on the line of such street, road or public place, and the consent of the board of trustees of the village, by a resolution adopted at a regular meeting and entered on the records of the board, or of the proper authorities of the city having control of such streets, roads or public places.” This purpose could be effectually accomplished by an amendatory act of this character. Town of Duanesburgh v. Jenkins, 57 N. Y. 177; State v. City of Newark, 27 N. J. Law, 185, 197. Since the plaintiff had already obtained, within the meaning of section 16, as amended, the consents of the local authorities of New York city and Long Island City, these consents were, by chapter 702, Laws of 1892, apparently confirmed unto the plaintiff. The defendant attacks the validity of the consents obtained from the local authorities of New York city and Long Island City upon the ground, first, that the plaintiff had not complied with the necessary formalities to locate the routes described in the consents, and, second, that no consent could be given to a route different from that specified in the articles of association. In raising the first objection the defendant assumes that a certificate of change of route, showing a route different from that mentioned in the articles of association, was necessary in order to accept the consent granted by the local authorities of Long Island City. On January 11, 1892, after obtaining this consent, the plaintiff filed in conformity therewith a certificate of adoption of route, according to section 22 of the Railroad Act of 1850 and section 6 of the Railroad Act of 1890. Since no map of the route in Long Island City was previously filed, this was not a certificate of change of route within the meaning of section 23 of the Railroad Act of 1850 and section 13 of the Railroad Act of 1890, and the provisions of those sections seem inapplicable to that certificate. As to the second objection, it should be noted that the Railroad Law of 1850 did not require the articles of association to state the route (§ 1), and that the articles of association described the route and terminals in merely approximate language. The court is unwilling, therefore, upon the meagre affidavits before it, to determine that the consents are so inconsistent with the articles of association as to be invalid. The defendant objects that the consents of property-owners have not been procured by the plaintiff in accordance with the statutory requirement. The plaintiff began work in June, 1892. The statute then in force, which required the consent of property-owners, was chapter 702, Laws of 1892, the material parts of which are above quoted. Upon the affidavits submitted it appears that prior to constructing its tunnels in any “ street, road or public place ” the plaintiff procured “ the consent of the property-owners of one-half in value of the property bounded on the line of such street, road or public place.” The contention that the plaintiff should have obtained the consent of the property-owners along every street in its route, before beginning to construct in any street, seems without weight. To this point the court has confined itself to the consideration upon the merits of the question of the plaintiff’s franchise. Independent of the foregoing considerations, however, the validity of the plaintiff’s franchise, in which a large amount of capital is invested and great public interests are concerned, cannot properly be determined upon affidavits. To resolve this question now against the plaintiff would permit such interference with the plaintiff’s work as would prevent its completion within the time set therefor, upon which its franchise is conditional. The plaintiff will he irremediably damaged if the doubt were now resolved against it. The defendant, on the other hand, cannot be prejudiced by the postponement. Por this reason the court may well refuse to determine the question upon the present motion, and, instead, may properly make a restraining order permitting the continuance of the work under the alleged franchise until the question may be tried in court according to the rules of evidence. Upon this ground, as well as upon the merits, the plaintiff’s motion for a continuation pendente lite of the preliminary injunction is granted.

Motion granted.  