
    City of New York v. Twenty-Third St. Ry. Co.
    
      (Supreme Court, General Term, First Department.
    
    May 18, 1888.)
    1. Railroad Companies—Taxation—Percentage of Profits—Liability of Lessee.
    Laws N. Y. 1873, o. 199, allowed the Bleecker Street & Pulton Perry Railroad Company to extend its route through certain streets in the city of New York, and required it to pay to the city a certain license fee for every car operated on the extensions, with the privilege of leasing all or any portion of the road. Id. c. 647, substituted for the license fee the payment of 1 per cent, of the gross receipts of the company. Held, that the obligation to pay this percentage was not personal to the Bleecker Street Company, but followed its lessee; and this though the lessee nowhere in the lease expressly assumed any obligation to pay the percentage.
    
      2. Same—Taxation—License Tax on Extensions.
    Laws N. Y. 18(50, o. 514, granted to 12 persons and their assigns the right to construct and operate the road in question upon paying to the city of New York a certain annual license fee. The Bleecker Street Railroad Company was organized December 12, 1864, under the general railroad act, and on the same day the 12 persons assigned their rights and franchises to that company. Held, that the acts of 1873 imposing upon the company a license fee for every car operated on the extensions therein authorized, and substituting the payment of 1 per cent, on the gross earnings, were valid. Although the grant to the 12 persons was not subject to amendment or repeals, yet as to the extensions the corporation subsequently formed could not claim as their assignee. Moreover, the thing assessed is not the visible property assigned, nor that property .in combination with the privilege of operating the original route; but it is a condition of the existence of and exercise of certain privileges by the new corporations. °
    Appeal from circuit court, Hew York county; Charles H. Van Brunt, Presiding Justice.
    This is an appeal from an interlocutory judgment requiring the defendant to account for 1 per cent, of the gross earnings received by it in the operation of its ears over the Bleecker Street & Fulton Ferry Railroad, of which the defendant is a lessee. Chapter 514 of the Laws of 1860 granted the right to construct and operate the road in question to 12 men therein named and their assigns, upon paying to the city of Hew York the same license fee annually for each car run thereon as was paid by other railroads in that city. The Bleecker Street & Fulton Ferry Railway Company was organized as a corporation on the 12th day of December, 1864, under the general railroad act. On the last-named day the 12 persons mentioned in the act of 1860 assigned their rights and franchises under that act to the Bleecker Street & Fulton Ferry Railroad Company. Chapter 199 of the Laws of 1873 allowed that corporation to extend its route through specified streets, and required it to pay to the city a license fee of $50 for each and every car used by the company on said extensions, with the privilege of leasing all or any portion of the road, or to consolidate with any other roads. Chapter 647 of the Laws of 1873, passed about a month subsequently to the last-named act, substituted for the license fee of $50 a car the payment of 1 per cent, of the gross receipts of the company, to begin October 1, 1875, unless the extension authorized (supra) was sooner completed. The Bleecker Street & Fulton Ferry Railroad Company was, under chapter 389 of the Laws of 1875, leased to the defendant on the 10th day of January, 1876.
    Argued before Bartlett and Macomber, JJ.
    
      Leslie W. Russell, for appellant. Morgan J. O'Brien and Thomas Allison, for respondent.
   Macomber, J.,

(after stating the facts.) This action is brought to compel the defendant to account for the receipts by it accruing from the operation of the Bleecker Street & Fulton Ferry Railroad route. It is not brought to recover any license fees for cars run by the defendant over the original Bleeclcer-Street route described in the act of 1860. It stands conceded, because so alleged in the complaint, and not denied by the answer, that on the 29th day of September, 1876, the defendant, by virtue of a written agreement, entered upon and took full, sole, and exclusive possession of the demised premises described in the complaint, and has ever since retained the same, and has solely and exclusively exercised and enjoyed the franchises, privileges, licenses, and immunities of these and other demised premises conferred upon the said Bleecker Street & Fulton Ferry Railroad Company by the laws mentioned in the foregoing preliminary statement, and has solely and exclusively received to its own use all the receipts arising from the exercise and enjoyment of said privileges and franchises for operating the horse railroad through such streets. The position of the learned counsel for the defendant is, upon this argument, that whatever the status of the Bleecker Street & Fulton Ferry Railroad Company may be, no obligation is imposed upon this ■defendant to pay the percentages; and, secondly, that no such obligation was lawfully imposed upon the Bleecker Street & Fulton Ferry Bail way Company. It is contended that the amendment mentioned above as contained in chapter 647 of the Laws of 1873, imposing the payment of percentages of gross receipts, is personal to the Bleecker Street & Fulton Ferry Railway Company, and does not purport to bind the lessee of that company. That act declares that in lieu of the payment to the city of New York of the license fee of $50 for each and every car used by the company, there shall be paid by it annually, on the 1st day of October, 1 per cent, of the gross receipts of that company. It is manifest that thé sole object of the several acts was primarily to clothe the Bleecker Street & Fulton Ferry Company with this valuable franchise; and, secondly, as compensation therefor, the company should pay into the treasury of the city of New York a proper compensation therefor. As the act did not in terms contemplate the operation, of the horse cars in those streets by .any other company than this one, so there was no requirement resting upon the legislature to be more specific, and to declare in words that such payments should be made by any person or corporation to whom the Bleecker Street & Fulton Ferry Company might lease its railway. This was a sufficient and effective mode of enacting that this percentage of the gross receipts arising from the operation of this railway should be turned into the ■city treasury, and it was not necessary0to be more perspicuous in the use of language. It appears that the rent to be paid by the defendant for the use of this railway for its 99 years’ lease goes not into the treasury of the Bleecker Street & Fulton Ferry Company, but is paid directly to the stockholders of that company; so that, if the obligation to paya percentage is personal to that company, and does not follow the company or person who operates the road, ■and has the benefit of the franchise, then a most clever device has been hit upon for depriving the city of New York of the compensation which the legislature said it should receive in part payment of the valuable franchise so granted. It is further contended that the defendant nowhere in the lease as.sumes any obligation to pay the percentage. The answer to that is, briefly, that being a creature of the legislature organized for public purposes, it required no further agreement on its part than the agreement which is necessarily implied bylaw, that, in so operating a public franchise for private gain, the party shall conform to all existing laws. It is further urged that the Bleecker-Street Company was not liable to pay the percentages provided for by chapter 647 of the Laws of 1873. The argument is that the grant to .Stephen R. Roe and his 11 associates under the act of 1860 was not to a corporation, but to individuals, and hence there is not reserved to the legislature any power to alter, amend, or repeal the same. This may be conceded. But •Stephen R. Roe and his associates did not bestow upon the Bleecker Street & Fulton Ferry Railroad Company the right to operate any other part of the route than that portion which is specified in chapter 614 of the Laws of 1860. .It is true, as is found by the learned trial judge, that the route of that railroad, to construct, maintain, and. operate which said company was formed, .as set forth in its articles of association, is the same as that over which Stephen R. Roe and other persons named in said act were authorized and empowered to •operate. But by chapter 199 of the Laws 1873 that company was authorized and empowered to extend its rail way, and to use the former road in connection with the roads of other railroad companies in said city, upon such terms as might be agreed upon between the companies. Moreover, as it seems to us, it is an erroneous proposition that the Bleecker Street & Fulton Ferry Company owes its franchise in any respect to the assignment made to it by Stephen R. Roe and others. The thing which is thus assessed a percentage for the benefit of the city of New York is not the railroad and other visible property assigned by Stephen R. Roe and his copartners to the Bleecker Slreet .& Fulton Ferry Railroad Company; nor is it that property in combination with the privilege of operating horse cars on that route. The legislature by the general act of 1850 permitted the corporation to be created for a particular purpose, and by subsequent legislation placed it under certain obligations and conditions to pay a small part of its gains to the plaintiff. It said to the corporations, by its public acts, in substance: You may exist and operate horse cars on the route secured to Roe and others, by obtaining their consent, on condition that you turn into the treasury of the city 1 per cent, of your gross earnings. It is no answer to this proposition to say that the individuals who formerly operated the road could not thus be made to pay any sum otherwise than had been agreed to in the original charter to them. Had Stephen R. Roe and his associates been able to, and had they in fact created that corporation, and had so clothed it by deed with all the property and privileges conferred upon them by the act of 1860, there would be some reason for the attitude taken by counsel for the defendant. But that company is not indebted to those persons for its existence and its high 'privilege of conducting a lucrative business as a common carrier, with all those advantages and immunities to its shareholders which incorporated capital tends to produce. It is indebted solely to the people of the state, acting through their legislature, for such privileges; and it is bound by the reasonable condition that a portion of its emoluments should be turned into the public treasury. It follows that the judgment appealed from should be affirmed.

Van Brunt, P. J., does not sit. Bartlett, J., concurs.  