
    In the Matter of the Petition of the Metropolitan Transit Company of the City of New York, etc.
    
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    1. New York (city of)—Metropolitan Transit Company—Laws 1872, Chap. 833—Laws 1850, Chap. 140—Laws 1881, Chap. 636—Applica-tion FOR APPOINTMENT OF COMMISSIONERS—INABILITY OF THE COMPANY to build—Evidence—Error in exclusion of.
    The Metropolitan Transit Company was created by chapter 833 of the-Laws of 1872, to construct a railroad in the city of New York, on the line described in the act, passing in some instanc.es through private property to be acquired, and also beneath and over certain specified streets; and three branches, whose exact location were afterwards to be fixed, were authorized to connect with the main line. The corporation was. endowed with all the powers and privileges of the railroad act of 1850, so. far as applicable. Compensation was to be given the city for use of the streets, the amount to be determined in the same manner as damages to private property. The company in December, 1885, petitioned the ' supreme court, stating its intentions “in good faith to construct, operate and maintain a railroad on the lines mentioned in the act,” and its desire to ascertain the amount to be paid the city for use of the streets, and asking for the appointment of commissioners of appraisal. The hearing was adjourned from time to time, and in April, 1887, the petitioners were.' allowed' to introduce a supplemental petition bringing before the court the amending act of 1881, giving the company new powers and extending the time to commence the road’s construction. Under that act new routes had been located and adopted, including Broadway. The city denied, among other things, the company’s intention to construct a road as mentioned in its charter, and alleging that it had not the necessary means to 'successfully perform the work; that the company had no right to build a' railroad on Broadway or the Boulevards, and that the act of 1881, gave no power to locate new routes for the company’s roads, and if it did, the act was unconstitutional. Held, .that the judge erred in excluding, evidence offered by the city upon: the hearing on the petition to show the inability of the company to build the road, good faith on its part, so far at least, as intention to build and complete its road was concerned, being made essential by the act of 1850. .
    2. Same—No jurisdiction to adopt new routes.
    The main line of the company’s road being defined by the statute of 1872, which expressly forbids the use of any streets than those specified, there was no jurisdiction to adopt new routes, and the company, if they took any part of the franchise as to the main line, were bound to take it as given.
    3. Same—Charter must be taken as offred by the legislature.
    The statute having in view a main line and branches, the main line not being sustainable as within the authority of the acts of 1872, the branches." must also fail, because the charter, if accepted, must be taken as offered by the legislature.
    4. Same—Consent of owners—Constitutional prohibition.
    The act of 1881 did not give the company rights other than those named in the act of 1872; if such was the intention it could not stand against the constitutional prohibition of laws for constructing street railroads, except upon consent of owners of property and the local authority, or the order of the court.
    Appeal from an order of the general term, first department, reversing an order of the special term and denying the application of the Metropolitan Transit Company for the appointment of commissioners of appraisal.
    
      Eselc Cowen, George W. Wingate and J. Alfred Davenport, for app’lts; Thomas P. WicTces and EUhu Boot, for resp’t.
    
      
       Affirming 15 N. Y. State Rep., 977.
    
   Danforth, J.

By chapter 833 of the Laws of 18Í2, the legislature created a body corporate under the tithe of “The Metropolitan Transit Company.” Its capital stock was fixed at $5,000,000, with liberty to the stockholders to in-, crease it, but accompanied by a provision that “work on the road authorized by the act, should not be commenced until ten per cent of the capital stock shall have been paid in in cash.” The corporation so creatéd was endowedwi ill all the powers and privileges, .and made subject to all the provisions of the act of 1850 (chap. 140), so far as the samé were consistent with the provisions of the act first mentioned (1872, chap. 833), and authorized to construct a railroad on the line described in the act, and beneath and over certain specified streets in the city of New York.

The act indicates the streets and routes, forming a main line and branches, and the use and occupancy of the streets are limited by its provisions (secs. 3, 4). The route or line described was to begin at Broadway opposite Bowling Green, and terminate, after passing through the enumerated streets, at the Harlem river, and three branches, the first from a point south of Forty-second street, oír and th connect with the line described in the act above referred to; “easterly and northerly to the Grand Central depot at Forty second street and Fourth avenue.”

The act also provided that “the exact location of the lines of the three branches heretofore authorized shall bé such as is deemed most practicable and best calculated to promote the public interests by a board to be composed of the state engineer and surveyor, the chief engineer of the Croton aqueduct and an engineer to be appointed by the corporation hereby created. The necessary surveys and maps for determining the lines of said branches shall be made under the direction of the said board of engineers at the expense of the corporation hereby created.” The line prescribed in some instances passed through private property,, and the act declared that the road should be constructed upon property “to be purchased or acquired,” and that the corporation might purchase and occupy a space not more than fifty feet in width upon the lines indicated, and might also, make the necessary connections, stations, etc., and acquire land necessary for those purposes, and if unable to do so by purchase through inability to agree with the owners, it might obtain title “in the manner and by the proceedings! prescribed for acquiring the title to real estate for railroad purposes, in and by the general railroad law of this state (Laws of 1850, supra) and the acts amendatory thereof, all the provisions of which, relating to acquiring the title to. real estate, are hereby extended so as to apply to any property, rights, franchises or interests required in the construction of said- railroads, except that in the petition to the supreme court, in said proceedings, it shall only be necessary to describe the real estate, property, rights, franchises or interests which said corporation seeks to acquire; to aver that the same are required for the construction or operation of the railroads authorized by this act, describing .particularly the' proposed route of said roads, and to allege that said corporation has not been able to acquire title to said property, rights, franchises or interests, and the reason of such inability. * * * It shall not be necessary that the pétition to the court shall make any allegation of or reference to any corporations, capital stock, surveys, maps, or the filing of any certificate of location.”

It also provides that “where the route or routes of the railroads herein ruthorized to be constructed and operated shall be along any street, avenue or public place, the said corporation shall compensate the corporation of the city of New York for such use or occupancy of said streets, avenues" or public'places; the amount of'such compensation to be determined in the sanie manner as damages to private .property.” ' "

The corporation so formed was given (§ 12) six months from the time of “the first election of directors within, which to commence the construction of the said railways, B,nd "one year thereafter within which to complete at least one" of said railways to the Harlem river, and one branch road' to the Grand Central depot at Forty-second street and Fourth avenue.”

On the 28th of December, 1875, the company so formed, presented a petition to the supreme court, stating,among other things “ that-it is-the intention of said'company, in good'faith, .to construct-, operate and maintain a railroad on the lfiiés mentioned in' Said act, and the necessary sidings,, switches, depots and workshops, and to convey passengers, freight and property in cars propelled by steam power, as mentioned in said act; ” that it desires to ascertain the amount which, under its charter must be paid to the city in relation to the construction of its road in such portions of the streets as are required for the described routes, referring to the act of 1872, and stating that they have been unable to agree with the city authorities as to the-required amount, and'they ask for the appointment of commissioners of ap - praisal to ascertain the same. The hearing on this petition was adjourned from time to time at the petitioner’s request, to March 5, 1886, and then upon condition that no further postponement should be asked for, it was by consent of the corporation counsel and at request of petitioners, adjourned, to March 8, 1886. On the 23d of April, 1887, the petitioners were by the order of special term, permitted to have the hearing go on upon a supplemental petition which brought before the court an act of the legislature, passed in 1881 (chap. 636), amending the act (supra) of 1872, and also stated the location of the new routes by the board of engineers, differing from those first determined upon. The act of 1881,’ authorized the filing of maps, extended the time within which to complete surveys, and declared that the ‘ ‘ time required in section twelve of said act, for the commencement, of the construction of said roads, shall he deemed not to have commenced until the making and filing of said maps, which shall be done within twelve months after the passage of the act.”

The supplemental petition reiterated the prayer for the appointment of commissioners of appraisal, and the city answered, putting in issue many of the allegations of the petitioners, and denying among other things that it is the intention of the company to construct and operate a road as mentioned in the act of 1872, alleging that “ the petitioner does not control sufficient pecuniary means to successfully perform the work proposed; that neither the petitioner’s capital or credit is sufficient to enable it to commence, carry, on, or complete the construction of its proposed railroads/ or to properly compensate the public and private interests which will inevitably suffer in the building and operation of its proposed railroads,” and alleged that the company did not begin the construction of the road as required by section 12, of the act of 1872, or spend ten per cent of its capital thereon, or finish its road, or put it in operation within the times limited by chapter 775 of the Laws of 1867, or of section 47 of the general railroad act, passed April 2, 1850, a§ amended by chapter 775, of the Laws of 1867; that its right to exercise its corporate powers under the said acts has wholly ceased by reason of non user and delay; that in no event is there any right in the said Metropolitan Transit, Company, under said acts, or otherwise, to acquire 'any right of way, or any lands in said city, or to build any such railroad as it proposes along the following named streets, to wit: Broadway in the city of New York,ana the streets known as the boulevards in the city of New York; that the act of 1881 (chapter 636), is void as violating section 16 of article 3 of the constitution of the state; that neither in the title of the said act of 1881, nor in the body of the said act, was any power or authority given to locate any new route or routes for the lines of the petitioner’s proposed railroad. That acting in pursuance of authority alleged to have been conferred by the said act, the board of engineers mentioned in the said act located and adopted new routes:

. Upon the hearing of the petition it appeared that the first election of directors was held on the 3d of July, 1874, and the secretary of state issued a certificate of the organization of the company. Among other things the city upon the objections raised by their answer, offered evidence to show the inability of the company to build the road, and other circumstances to controvert their expressed intention to do so. The judge held that the application was sufficient evidence of that intent, and excluded the evidence.

We agree with the general term in the conclusion that in so ruling the learned judge at special term erred. Good faith on the part of the company, so far at least as intention to - build and complete its road is concerned, is made essential by the act of 1850 (chap. 140, § 14), and there is no reason to suppose that the legislature, in giving life to this company, with power qualified in some degree at least by the provisions of that act, so far as they relate to the acquisition of land, or rights against the will of the owner, intended to dispense with this important condition. It was á fact stated, and being stated, was subject to denial and might be disproved. If it had not been stated, and it had appeared in evidence that such intention did not exist,. that the company did not intend to construct and finish the described road, the party affected by its proceedings would have “ shown cause against granting the prayer of the petition,” and any further action would have been idle. Section 15, act of 1850, supra.

.Moreover, the petitioners gave evidence to sustain the alleged intention, and that offered by the city was competent in answer to it. This difficulty might be got along with upon another application or rehearing. There are others of a fatal and conclusive character. One of these is found- at the starting point of the proceedings in question.

■ The privilege given to the Metropolitan Transit Company was defined and limited by the act (Laws of 1872), and it was bound to exercise the privilege, if at all, according to 'the terms in which it was. conferred. It could not take part and reject the rest. As a condition upon which the court could be asked to intervene in its favor, the company must show, under the solemnity of an oath, that it is its “intention in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association.” Laws of. 1850, supra.

The statute describes the streets through which the line may pass, authorizes branches connecting with it, but, as above stated, leaves' their exact location to be fixed by a board of engineers.

It appears from the petition that the board' acted in-March, 1875, locating the lines of the three branches, and the first petition above referred to was presented to the court and appraisers asked for in relation to the streets affected by those lines. It also embraced the main line as described in the act. Subsequently, July 11, 1882, the board, but consisting of different persons, made new locations of the same routes, in many respects materially different from the routes described in the statute, and materially different from those described in the first location, both of the main line and branches, by the board organized under the act of 1872.

The supplemental petition embraces these last locations. First. So far as the main line, or “the line,” as it is called in the statute, is concerned, neither board had jurisdiction to name the streets through which it should pass. It is defined by statute and the statute itself declares that the corporation shall “have no right to acquire the use or occupancy of any of the streets or public places of the city of New York under the provisions of said acts, or by any agreement or grant of the city authorities, except such use or occupancy as is granted or provided for in this act, and except such temporary rights and privileges during the period of constructing said railways authorized in this act,, as the proper authorities may grant to said corporation to facilitate such construction.”

No discretionary power is vested in the board as to this line, and the company, if they took any part of the franchise as to the main line, were bound to take it as given. They could not operate over one street and avoid another, nor could they substitute a street not named. As to that line, so described, the court had no jurisdiction. The learned counsel for the appellant contends, however, that if the location of the main line cannot be sustained as within the authority of the act of 1872, the branches need not also fail. The rule I have referred to forbids this conclusion. A charter must be accepted or rejected in toto. If accepted, it must be taken as offered by the legislature. The one under which the claim is made contains no permission and confers no power to accept in part and reject in part. People v. Albany and Vermont R. R., 24 N. Y., 261.

It follows that the branch line locations are ineffectual. The statute has in view a main line and’ branches, the whole accommodating the public over a large territory. A branch or two of these disconnected from the trunk might be of value to the owner, but such a gift was not described in the statute, and there is no reason to suppose it was intended. The appellants rely largely upon the act of 188 L (chap. 636) as curing many of the difficulties suggested by the other side. If that act was intended to give the company rights in streets other than those named in the act of 1872, it could not stand against the constitution, which prohibits any law authorizing the construction of a street railroad except upon the consent of owners of property and the local authorities or the order of the court. Const. Amdt., 1874. This excludes a part of as well as a complete railroad. But we find no such intention expressed in the statute, nor words from which an implication to that effect can be drawn.

Other questions have been presented by counsel for the appellant as against the objections of the respondent and argued with great ability and force. We do not think it necessary to discuss them, for in our opinion they would require no different conclusion from that which must follow the views above expressed.

; We think the order of the court below was right and should be affirmed.

All concur, except G-ray, J., not sitting.  