
    In the Matter of the Application of the Brooklyn, Queens County and Suburban Railroad Company, Appellant, for a Writ of Mandamus Ordering Martin W. Littleton, President of the Borough of Brooklyn, and John C. Brackenridge, Commissioner of Public Works of the Borough of Brooklyn, Respondents, to Grant to the Petitioner a Permit to Open the Pavement and Street on Saratoga Avenue in the Borough of Brooklyn, from Broadway to Sutter Avenue, for the Purpose of Constructing Thereon a Double-track Street Surface Railroad.
    
      Extension of a street surface railway — the consent of abutting property owners must be obtained within five years after that of the local authorities— what extensions of time granted by statute do not apply—section 5 of the Mailroad Law applies to street surface railways and is self-executing ; section 99 is not.
    
    Section 5 of the Railroad Law (Laws, of 1890, chap. 565, as amd. by Laws' of 1893, chap. 433), which provides, “ When corporate powers to cease. If any domestic railroad corporation shall not, within five years after its certificate of incorporation is- filed, begin the construction of its road and expend thereon • ten per centum of the amount of its capital, or shall not finish its road and put it in operation in ten years from the timé of filing such certificate, its corporate existence and powers shall cease,” applies to street railway companies, and is self-executing.
    Consequently, where a street railway company, which, in 1893, obtained the consent of the local authorities to the extension of its railway, does not obtain all of the requisite consents of the abutting property owners until 1903, its right to construct such extension is lost.
    The extensions of time, granted to railway companies for the construction of their proposed roads, by amendments to the Railroad Law enacted since 1898, when the franchise to construct the extension became abrogated by virtue of section 5 of the Railroad Law, did not operate to revive such franchise.
    Section 99 of the Railroad Law, .as amended by chapter 434 of the Laws Of 1893, which is contained in the article entitled “ Street Surface Railroads ” and which provides that in case any such corporation shall not commence the construction of its road or of any extension or branch thereof within one year after the consent of the local authorities and property owners, or the determination of the General Term, shall have been given, and shall not complete the same within three years after such consents, its rights, privileges and franchises in respect ■ to such railroad extension or branch, as the case may be, “ may be forfeited,” ■ is not self-executing and is not a substitute for section 5, so far as street railways are concerned. Both sections stand together, the one providing for the-abrogation of a franchise of a street railway company without judicial proceedings and the. other providing for the abrogation of such a franchise after judicial proceedings.
    
      Appeal by the petitioner, the Brooklyn, Queens County and Suburban 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 18th day of July, 1904, denying the petitioner’s application for a peremptory writ' of mandamus.
    
      Charles A. Collin [John L. Wells and William, F. Sheehan with him on the brief], for the appellant.
    
      James D. Bell [John J. Delany with him on the brief], for the respondents.
   Willard Bartlett, J.:

On July 24,1893, the Broadway Railroad Company of Brooklyn, since merged in the Brooklyn, Queens County and Suburban Railroad Company, obtained from the common council of the city of Brooklyn its consent to the construction, maintenance and operation of a double-track street surface railroad upon an extension in Saratoga avenue from Broadway to the city line. The requisite consents of one-lialf of the owners in number, and of the owners of one-half in value of the property on Saratoga avenue, which were necessary to complete the franchise for the construction of the extension on Saratoga avenue, were not all obtained until 1903. Having obtained such consents, the railroad company, on September 30, 1903, applied to the commissioner of public works in the borough of Brooklyn for a permit to commence the construction of its extension on Saratoga avenue. The application was denied. The.railroad company thereupon instituted this proceeding to compel the issue of the desired permit, but the court at Special Term has refused to command its issue. The only paper read in'opposition to the application was an affidavit from Mr. John O. Brackenridge, the commissioner of public works in the office of the president of the borough of Brooklyn. This affidavit states that Public School No. 187 is located on Saratoga avenue, where it is proposed to construct the trolley railroad under the permit .asked for, and states that the affiant and the president of the borough have received a large number of protests against the-building and operating of the railroad in front of said school, which protests emanated from the board of education and from private persons who were interested in the safety of the children attending said. school. The learned judge at Special Term intimated that the presence of a schoolhouse in this locality would not warrant the city authorities-in refusing the necessary permit to open the street, inasmuch as they should have considered the fact that the claim to the franchise existed before determining to. build the school there. In this view he was clearly correct; so that the only question that it is necessary to consider upon this appeal is a question of law, to wit, whether the .delay of the railroad company in obtaining the consent of the property owners to the construction of its extension on Saratoga avenue has operated to prevent it from now being entitled to build and operate such extension. '

It is to be observed that a period of more than ten years elapsed between the time when the Broadway Railroad Company of Brooklyn, since merged in the Brooklyn, Queens County and Suburban Railroad Company, obtained the consent of the municipal authorities to the construction of this proposed extension in Saratoga avenue, and the time when it obtained the last of the consents necessary to make up the number and amount required by law. Has the franchise to construct this extension, otherwise in all respects valid, been destroyed by this lapse of time ? The learned judge who heard this case at Special Term answered this question in the affirmative, holding that the ■ proposed extension was a new road and that the railroad company was bound to begin its construction within five years from the time when it obtained the consent of the municipal authorities. This view must have been based upon the.- conclusion that section 5 of the Railroad Law (Laws of 1890, chap. 565, as amd.. by Laws of 1893, chap, 433) was applicable to the appellant. , That section provides that if any domestic railroad corporation shall not begin the construction of its railroad within five years, after its certificate of incorporation is filed, or shall not finish its road within ten years therefrom, “ its corporate existence and powers shall cease.” A statutory provision of essentially the same character has been held by the Court of Appeals to be self-executing. (Matter of Brooklyn, Winfield & Newtown R. Co., 72 N. Y. 245; S. C., 75 id. 335; Brooklyn Steam Transit Co. v. City of Brooklyn, 78 id. 524.) Referring to the decision of this court in Brooklyn & Rockaway Beach R. R. Co. v. Long Island R. R. Co. (72 App. Div. 496; appeal dismissed, 178 N. Y. 693), the Special Term judge was evidently of the opinion that section 5 of the Railroad Law operated joro tanto to destroy an extension franchise not acted upon within the prescribed period, although leaving the corporation alive in respect to those portions of its road which had been constructed within the statutory period.

I think that he is right in this view, if section 5 applies at all at the present time to the case of a street surface railroad. It seemed at first somewhat doubtful whether that section now had any such application. Section 99 of the Railroad Law (as amd. by Laws of 1893, chap. 434), which is found in article 4 thereof, which article is entitled Street Surface Railroads,” provides that in case any such corporation shall not commence the construction of its road or of any extension or branch thereof within one year after the consent of the local authorities and property owners, or the determination of the General Term shall have been given or renewed, and shall not complete the same within three years after such consents, its rights, privileges and franchises in respect to such railroad extension or branch, as the case may be, may be forfeited.” This provision is not self-executing. (Coney Island, Fort Hamilton & Brooklyn R. R. Co. v. Kennedy, 15 App. Div. 588, opinion per Cullen, J.) Occurring as it does in an article devoted solely to the subject of street surface railroads, the question suggested itself whether.this section 99 of the Railroad Law might not be regarded as a substitute for section 5, so far as this class of railways is concerned.

Upon that question the court ordered the reargument upon which the appeal has now been finally submitted. .That reargument has resolved, our doubts adversely to the contention of the appellant.

The statute under consideration in Matter of Brooklyn, Winfield & Newtown R. Co. (72 N. Y. 245) was chapter 775 of the Laws of 1867, being an act to amend the General Railroad Law of 1850. It consisted of but a single section, reading as follows: If any corporation formed under an act entitled An act to authorize the formation of railroad corporations, and to regulate the same,’ passed April second, eighteen hundred and fifty, shall not, within five years after its articles of association are filed and recorded in the office of the Secretary of State, begin the construction of its road, and. expend thereon ten per cent on the amount of its capital; or shall not finish its road and put it in operation in ten years from the time'of filing its articles of association, as aforesaid, its corporate existence and powers shall -cease.”

The 1st clause of section 5 of the Railroad Law, as in force at the time when the consent of the municipal authorities was obtained by the appellant, and as now in force, provides as follows: “ When corporate powers to cease. If any domestic railroad corporation shall not, within five years after its certificate of incorporation is filed, begin the construction of its road and expend thereon ten per centum of the amount of its capital, or shall not finish its road and put it in operation in ten years from the time of filing such certificate, its corporate existence and powers shall cease.”

It will be seen that there is no essential difference between this clause of section 5 and .chapter 775 of the Laws of 1867. As the latter statute was held by the Court of Appeals to be Self-executing in the case cited, so the 1st clause of section 5 must also be regarded as a provision which executes itself. In the Matter of Brooklyn, Winfield & Newtown R. Co. case the act of 1867, above quoted, was applied, not to a steam railroad company, but to a street surface railroad company, partly in the city of Brooklyn and extending to Winfield and the village of Newtown. This appears by chapter 718 of the Laws of 1869, which authorized the corporation then known as the Brooklyn and Winfield Railway Company, and afterwards known as the Brooklyn, Winfield and Newtown Railway Company, to construct, operate and maintain a railroad with single or double tracks and necessary switches and turnouts, “ propelled by horse power ” over the route named in its articles of association. The 1st clause of section 5 of the existing Railroad Law is evidently based upon and is essentially the same in effect as chapter 775 of the Laws of 1867; and it is difficult to perceive any sufficient reason why, if the act of 1867 was applicable to the case of a street surface railroad and operative of its own force and without any judicial action to destroy the corporate franchise of subh a railroad, the 1st clause of section 5 should not be construed to be capable of the same application and effect. Unless that clause does apply to street surface railroads, there would seem to be no self-executing provision of law under which their corporate existence can be terminated. At all events, no such provision has been brought to our attention. As has been pointed out, section 99 of the Railroad Law is not self-executing, but requires the institution of legal proceedings to give it effect. This difference between that section and the 1st clause of section 5 removes all difficulty in the way of permitting the provisions of both to stand together. One enactment prescribes the conditions under which the authorities of the State may go into court and ask that a franchise may be judicially declared to be forfeited; the other enactment declares under what circumstances such corporate franchise becomes if so facto forfeited without any judicial proceedings whatsoever.

Our conclusion is that, by virtue of the operation of the 1st clause of section 5 of the Railroad Law, the appellant lost its franchise to construct the Saratoga avenue extension at the expiration of five years from May 28, 1893. As to the various statutes relied upon by the appellant, as operative to enlarge the time within which it might construct this Saratoga avenue extension, it is sufficient to say that, upon a fair and reasonable construction, none of them, seems to us to have had that effect. Chapter 700 of the Laws of 1895, by its title, expressly excluded street surface railroads from its scope and operation ; and we do not think that the Legislature intended to abrogate the effect of that title by the subsequent amendments of the same act. The extensions of time granted by amendments to the Railroad Law, enacted since 1898, can hardly have been designed to revive franchises already dead by reason of the operation of a self-executing general statute.

The order of the Special Term should be affirmed.

Hikschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
      Sic.
     
      
      See Laws of 1893, chap. 433; Laws of 1901, chap. 508.&emdash;[Rep.
     