
    John Norris, Respondent, v. Frederick W. Wurster, Mayor of the City of Brooklyn, Respondent; Martin F. Conly and Others, Constituting the Board of Aldermen of the City of Brooklyn, and East River and Atlantic Ocean Railroad Company, Appellants, Impleaded with Others.
    
      Bailroad franchise in the Greater Sew York — it cannot exceed a term of twenty-five years with.renewals.
    
    From the date of the passage of the charter of ¡the Greater Hew York (Chap. 878 of the Laws of 1897) the granting of a franchise to operate a street railroad within the territory of the new city for a longer term than twenty-five years, with certain privileges of renewal, is forbidden.
    The fact that in attempting to grant .such a franchise the common council is exercising a legislative function does not preclude the courts from investigating the legality of the act.
    If it clearly appears that such action is illegal the fact that an order of injunction pendente lite will prevent the members of the common council from passing a resolution granting such franchise over the mayor’s veto before the expiration of their term of office, is not a reason for refusing to grant the order.
    Appeal'by the defendants, Martin F. Conly and others, constituting the board of aldermen of the city of Brooklyn, and the East River and Atlantic Ocean Railroad Company, from an order of the Supreme Court, made at the Kings County. Special Term and entered in the office of the clerk of the county of Kings on the 16th day of December, 1897, continuing an injunction which restrained the defendant Wurster, as mayor of the city of Brooklyn, and the individual defendants, as aldermen of the city of Brooklyn, from granting consent to the East River and Atlantic Ocean Railroad Company and the Nassau Electric Railroad Company to operate their roads upon streets of the city of Brooklyn for a longer period than twenty-five years.
    
      James C. Church, for the appellant railroad [Luke D. Stapleton, with him on the brief, for the appellant aldermen].
    
      Joseph A. Burr, for the respondent mayor.
    
      James W. Gerard, Jr. [John M. Bowers with him on the brief], for the respondent Norris..
   Goodrich, P. J.:

This is a taxpayer’s action instituted to restrain the defendant Wurster, as mayor of the city of .Brooklyn, from approving, and twenty-eight other defendants, constituting the board of aldermen of the said city, from passing over the mayor’s veto, if he should exercise that power, two certain resolutions already passed by such board, granting to the other defendants, the East River and Atlantic Ocean Railroad Company and the Nassau Electric Railroad Company, the consent of the common council to the construction, use and operation of a railroad in certain streets of the city for a period exceeding twenty-five years.

The complaint alleges that on February 3, 1896, an application was made to the board of aldermen by the East River road praying that the common council would grant consent to said company to the building and operation of a double-track street surface road upon an unusually large number of streets, and for fourteen different routes, many miles in extent, and that another application of the Nassau road -was presented on the same day, of a somewhat more modest character and relating to one route only. Both applications were referred to the standing committee on railroads, which was appointed at the organization of the board in January, 1896, and consisted of .Aldermen Francisco, Ilaubert, Wassmuth, Thompson, Myers, Hennessy and Guilfoyle. This committee had hearings on the subject on February 27, March 13 and 30,'and on April 10, 1896, and at no subsequent time. But at the time of the. customary organizátion of the board in January, 1897, the membership of this committee was changed. Francisco and Haubert ceased to be members, and their places were.filled by Aldermen Taylor and Dunne, so that the personality of the committee was materially altered. For some unexplained reason the matter slumbered in the-committee room during the remainder, of the year 1896, and until November 29, 189-7, when the new committee, without any public notice of its intention, made a report in favor of granting the application. There is nothing in the record to show that any public hearing was held before this new railroad committee, or any deliberation had thereon by the committee, public or otherwise, except such as may be derived from the fact that the new committee recommended the giving of the consent.

It becomes necessary to refer to the changes which had taken place meanwhile in the condition of the city as affected by new legislation. The act consolidating the territory of the so-called Greater New York (Laws, of 1896, chap. 488) became a law on May 11, 1896; the charter of the new municipality (Laws of 1897, chap. 378) was passed by the Legislature in May, 1897, and later the act providing for the election of the officers of the new city, under which the new officers were elected in November. The official term of the aldermen was near its end, and they had but a single month within which to exercise their functions, when suddenly, and on November 29, 1897, nearly twenty-two months after the original application, and after the passage of the new charter, after the election of the officers for the new municipality, and in the dying hours of the board of aldermen, the sleeping project was aroused from its slumbers.' On that day the new committee made a report to the board, recommending the granting of a consent to the defendant, .the East River and Atlantic Ocean Railroad Company, and submitting resolutions giving such consent, and the board, on the same day, passed a resolution granting such consent by a vote of seventeen' to five.

It is needless to say that the public and any taxpayer might well be startled by the gigantic proportions of the franchise thus suddenly consented to, and, so far as the record discloses, without immediate previous notice to the public, or any other notice except that,, as the resolutions state, early in the year 1896 a notice was published 'in' two Brooklyn newspapers of the time when a hearing would take place before the committee. It is clear that no public action was taken by the committee from April, 1896, till November, 1897.

• The answer of the mayor alleges his intention to veto the resolution, and it was stated on the argument that lie had done so. The corporation counsel of the city appearing for the mayor; in his brief and in his oral argument, expressed his conviction that the injunction, should be continued pendente lite.

The consent was, on its face, in perpetuity and not for twenty-five years. The only benefit- derived by the city and its citizens was that the consent required the company to sell six tickets for .twenty-five cents and pay the city three per cent of the gross receipts. The complaint alleges that the value of the franchise is $1,000,000, and while some of the answers deny that this is a true estimate it is conservative to say that the conditions of payment attached to the consent to such a valuable franchise were not exorbitant. It is unnecessary to say that the consent of the board to a franchise of such generous proportions required the most careful deliberation and consideration by a body to' which the public had confided the protection of its interests, and should have been open to public attention, and that the court is called upon to review this action with scrutiny and a careful regard for the public interests.

Some of the questions involved in this appeal have already been passed upon by the learned Appellate Division of the first department in the case of Gusthal v. Strong (post, p. 315); and even if we did not agree with its conclusions we should hesitate very long before differing therefrom. But we see no reason for any difference. We agree with its conclusion that it was the intention of the new charter that after its passage “ the granting of any franchises, except such as are mentioned in that section (§ 73), within the territory of the greater city of New York, is forbidden.” Section 73 forbids the granting of any franchise to any person or corporation for a longer period than twenty-five years, with certain provisions for renewal, to which it is unnecessary to refer. The consent before us is unlimited in its term, and consequently for a period in excess Of twenty-five years; and, adopting the conclusion of the court in the Gusthal case, we hold that such a consent is unauthorized and illegal.. A similar result has been reached by Judge Lacombe of the United States Circuit Court, in the case of Seccomb v. Wurster & Others, based ujion similar allegations, in a very learned and elaborate opinion, in which he holds that an injunction should issue' to restrain the grant of a franchise for more than twenty-five years.

If it were necessary further to refer to the new charter we might say that it is hardly to be expected that an instrument of such great extent and importance would be perfect and beyond criticism. The days of miracles and inspiration seem to have passed from the pages of history, and we may look only for reasonable accuracy in the expression of legislative intent in legislative acts. We think the intent of the charter referred to is sufficiently apparent from the scheme of the entire instrument.

But the learned counsel for the defendants, other than the defendant Wurster, insists that in granting the consent the board was performing a legislative act; and is in that respect a branch of the government co-ordinate with the court, and that, consequently, this court has no power to arrest the execution of these acts. His argument - proceeds on the theory that the authority of the board is derived directly from the Constitution, without intervention of legislative enactment, and in support of his contention he cites the case of Adamson v. Nassau Electric R. R. Co. (89 Hun, 261) where the General Term of the second department, on appeal from a final judgment, held that in granting consent to the construction of a street railroad the mayor and common council were exercising a legislative power devolved upon them by the Constitution ; but-the court in that case expressly recognized the right of the courts to investigate the power of the board and to decide whether the granting of the consent was a legal act. The provisions. of the Constitution (Art. 3, § 18) in effect constitute a limitation upon the power of the Legislature to pass any law giving to any municipal body the right to authorize the construction or operation of a street railroad, except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent of the local authorities controlling the streets be first obtained, or a substituted consent obtained from the Appellate Division of the Supreme Court. It does not follow that because there are words in the Constitution creating such a limitation, the Legislature can confer upon the local authorities power to consent to such a grant when the granting is otherwise illegal, or that it may not repeal such power by subsequent legislation, and, as we have said, we have adopted the view that the consent of the board was illegal, being given after the passage of the Consolidation Act of 1896, and for a term exceeding twenty-five years. In the Adamson case the court expressly stated that there was no allegation in the complaint that the aldermen who granted the franchises were corrupt, or that the consents were the product of corruption.

Ziegler v. Chapin et al. (126 N. Y. 342) was an appeal to the Court of Aj>peals from an order of the General Term of the second department; affirming an order of the Special Term granting an injunction pendente lite. The court held that the taxpayer’s action, authorized by section 1925 of the Code of Civil Procedure, was intended to restrain illegal acts on the part of public officials, and that, as the contract was illegal, a temporary injunction was properly granted.

One of the allegations of the complaint is that the board of aldermen is not invested with and does not possess the right or power to grant to any person the right to occupy the streets for a period exceeding twenty-five years, and that seventeen members of the board have agreed with one another and with the defendant corporations to vote to pass the resolution over the mayor’s Veto, if he should exercise that power. The complaint contains allegations which amount substantially, to a charge that the defendant aider-men, inspired by corrupt motives, intend to exercise a power which they do not possess. It is undoubted that the court might, after such action of the board and on trial of the issues herein, decide that the board had no authority to give' such consent, but that does not forbid the exercise by the court of the power to restrain, pendente Hie, an absolutely illegal act, provided there is evidence to show that irreparable injury will result to the plaintiff by the attempted exercise by the board of a power which it does not possess. It is evident that some of the defendants or their counsel believe that some benefit will result from the reversal of the order granting the preliminary injunction, and it is our duty to ascertain whether some corresponding injury may not result to the plaintiff and the public. It is evident that if the resolution is not passed over the mayor’s veto, there will be lessened litigation, while, 'if it is passed, citizens and taxpayers will be compelled to resort to extraordinary-litigation to undo a wrong, and that the defendant corporations believe that they will have some coign of vantage from which to repel the attacks of their adversaries.

It is further contended that no injunction pendente lite should have been granted, inasmuch as the effect of such order is to prevent the board from passing the resolution over the mayor’s veto before the expiration of their term of office^, and that this would be an inequitable exercise of judicial power by preventing by indirection what ought to be only directly adjudged, and that no harm can result to the public by permitting the board to exercise a power which we hold it does not possess, as the question of the legality of its exercise can he determined only and finally by a trial of the issues in this action. We cannot assent to such a contention. If the action is clearly illegal, and' if we could not possibly arrive at any other conclusion, even upon the theory advanced by the defendants, we can hardly be expected, by reversing the order of the Special Term, to be practically a party to what we have declared to be illegal .and an invasion of the public rights. If the act enjoined is an illegal act, and we hold it to be such, we should not hesitate to restz’ain it in order that the intention of the Legislature in regard to the z’ights and powers of the zzew municipality may be conserved.

The answer of the, defendant Wurster sets up certain defenses and contains a demand for affirmative relief to restrain the members of the board of aldezmen from passing the z-esolutions over his "veto, and these allegations, not denied by the other defendants, constitute matter which justifies a preliminary injunction. The answer denies that any resolution was passed granting any franchise to the Massau Railroad -Company, and alleges that no public hearings were had before the standing committee on railroads of 1897, as required by section 92 of the Railroad Law (Chap. 565 of the Laws of 1890, as amended by chap. 676 of the Laws of 1892); that the application' is for permission to lay tracks on prospective streets which are not yet laid out, and over and upon the tracks' of other railroads oh certain streets, and that the routes contained in the resolution differ from those in the articles of association of the East River road. It is not "necessary to express any opinion upon the points raised by this answer; and it is sufficient to say that the answer interposed by the mayor, the official head of the city government, sets up facts which may stamp the resolution as illegal. In the case of Seccomb v. Wurster, already' cited and involving the .same resolution, Judge Lacombe holds that tíre Taxpayez*s’ Act authorizes a suit of this chaz’aetez;.

The Taxpayers’ Act (3 R. S. [9th ed.] 2530, § 1) authorizes the bringing of an action by a taxpayer against the officers of a municipal corporation to prevent any illegal official act on the part of such officers, and under the allegations of the coznplaint, as well as of the answer of the defendant Wurstez-, the question of illegality is ■ sharply and distinctly raised.

It is well settled that, where an act of the Legislature is for the benefit of the public and intended to prevent fraud, it should be liberally construed; We cannot close our eyes to the fact that grave suspicions are at once, invariably and always, aroused by any act of public officials which is shrouded in mystery until the sudden disclosure of an astonishing result and the consent of officials is given to the grant of a valuable monopoly in the public streets, especially when it is the exercise of the fast-fading power of a dying body, and the result is to extend over and be used during subsequent years, when new methods and new safeguards have been provided for the preservation of public rights of great value. A refusal of the defendants to exercise a doubtful power under these circumstances would have given rise to no suspicion of motive or intention, and we cannot withhold our. belief that the converse of that proposition is equally apparent.

We are of the opinion that the action of the board, in passing the resolution for a consent to the construction and operation of a railroad for an unlimited period, was illegal, and as. such we entertain no doubt of the power and duty of the court to enjoin further action in that direction, pendente Ute.

The order appealed from is affirmed, with costs.

Bradley and Hatch, JJ., concurred; Cullen and Bartlett, JJ., concurred in the result.

Order granting injunction affirmed, with ten.dollars costs and disbursements.  