
    The People of the State of New York ex rel. The Frontier Electric Railway Company, Relator, v. The City of North Tonawanda et al., Defendants.
    (Supreme Court, Niagara Special Term,
    December, 1910.)
    Street railways — Street railway companies, their franchises and right to use of streets — Franchise arid right to use streets — Conditions imposed by municipality — Right to impose conditions.
    Under section 21 of the Railroad Law a city may refuse to assent to the construction of a railroad in its streets and may, therefore, impose any conditions it thinks proper as conditions precedent to the giving of its assent; and, if the city attaches conditions which the company deems unreasonable, the only remedy of the latter is to refuse to accept the assent.
    Application for peremptory writ of mandamus.
    James P. Lindsay (L. L. Babcock, of counsel), for relator.
    Norman D. Fish, for defendants.
   Pound, J.

Relator is a railroad corporation, organized to build and operate a railroad from the city of Fiagara Falls to the city of Buffalo. Its route extends through the city of Forth Tonawanda and across certain streets of such city.

Section 21 of the Railroad Law (Laws of 1910, chap. 481) provides that: “ Fo railroad corporation shall * * * construct its road in, upon or across any streets of any city without the assent of the corporation of such city.”

Relator presented an application to the common council of the city of Forth Tonawanda for the required assent to construct its road across various streets. On the 20th day of September, 1910, the common council granted its assent, subject to many terms, conditions, limitations and restrictions, the last condition being that the relator should within ninety days accept the same and that the assent should not take effect until so accepted.

It is claimed by the relator that many of the conditions imposed by the common council are "beyond the powers of the municipality, illegal and void; and that the court should, by ■ writ of peremptory mandamus, compel the common council to eliminate them from the resolution of assent adopted by it.

It would seem that the assent so given is nothing more than an offer —■ a step in negotiations between the city and the relator, which the relator is free to accept or reject — and that the court might, therefore, refuse on this application to interfere with such negotiations. The ninety days in which the relator must act on the offer of the city have not expired. This assent, while void unless accepted, is doubtless valid and binding, conditions and all, if accepted by the relator.

It would further seem that the court should not, in any event, compel the municipality to convert a qualified assent or offer of assent into a practically unqualified assent, even ' though it should hold that certain of the restrictions contained therein are beyond the powers of the municipality.

If the municipality is limited in giving the assent to the bare question of deciding where the crossings shall be located, and if the Legislature intends to vest in it no general powers of regulation of speed of trains, method of guarding crossings, rates of fare and the like which relate to the method of enjoying the franchise granted to the railroad under legislative authority,'and if the municipality, in giving its consent, goes wholly outside the scope of its authority in imposing limitations thereon, the court may compel the municipality to give its consent free from such unauthorized restrictions and limitations. People ex rel. Eastern Parkway Co. v. Kennedy, 97 App. Div. 103.

But it must be conceded that the municipality has some power of regulation here. Non constat if this offer is not accepted, or if limitations therein are held to be ultra vires, it will not impose other and lawful limitations upon its assent. .If this were an assent and not an offer, the problem might be more difficult of solution. But it is clear that a proffered assent to the terms proposed, if not accepted by the relator, is a refusal rather than an assent, and should not he converted into an assent hy the court.

The main question as to the powers of the municipality under the provisions of section 21 of the Railroad Law, above quoted, has not been directly passed upon hy the courts in any reported case cited on the briefs of counsel.

Various cases relating to street surface railroads have sustained the absolute right of the municipal áuthorities to grant or withhold their consent to the construction of .street railroads and to impose any conditions as the terms upon which their consent will he given. People ex rel. W. S. St. R. Co., v. Barnard, 110 N. Y. 548.

But section 173 of the Railroad Law expressly gives the local authorities plenary powers to impose conditions upon which their consent to the construction of a street surface railroad may be granted, other and different from those imposed hy the General Railroad Law. South Shore Traction Co. v. Town of Brookhaven, 116 App. Div. 749. And it is urged by the relator that such cases have no controlling ■authority here.

It has been held, however, in Allegany City v. Railroad, 159 Penn. St. 411, that, under an unqualified provision merely thatno street surface railway shall he constructed within the limits of any city * * * without the consent of the local authorities,” the local authorities have full power to impose conditions as conditions precedent to their assent, and that no amount of hardship or impossibility or illegality will avoid the bar of a condition precedent unperformed.

The act (§ 21, supra) imposes no restrictions on the city. If the city gives its unqualified assent, the Public ■ Service Commission may regulate facilities, rates of fare and conditions of service and many other matters; hut the Legislature vests in the municipality, in the first instance, power to refuse its assent, and that necessarily implies the power .to impose conditions. True, the relator derives its right to cross the streets from the State, but it takes this right subject to the condition of obtaining the assent of the municipality. Delaware, L. & W. R. R. Co. v. City of Buffalo, 65 Hun, 464.

The case of G. & W. Ry. Co. v. Galveston, 36 L. R. A. 1, indicates that a limit may be fixed to the range of conditions which may be imposed, but this case is distinguishable from most of the other cases upon the subject in that the conditions relate to a matter outside the territorial jurisdiction of the municipality. The weight of authority is that" the power over matters within the territorial jurisdiction of the municipality is plenary and, if unreasonable conditions are imposed within such limits, all the company can do is to refuse to accept.

Motion denied, with costs.  