
    The Local Authorities of the Town of Pawling, Respondents, v. The New York, New Haven and Hartford Railroad Company, Appellant.
    Second Department,
    May 12, 1911.
    Railroad — proceeding to compel employment of flagmen at grade crossings— Town Law construed — local authorities entitled to maintain proceeding.. '
    The words “local authorities,” as used in section 33 of the former Railroad Law, authorizing said authorities to apply to the court for an order compelling railroads to place gates or station a flagman at grade crossings after the failure of the railroad to do so upon request, mean persons having control and authority over the highways, such person being, under the Town Law (Consol. Laws, chap. 62, § 80), the superintendent of highways, elected, or appointed by the town board. The supervisor, town clerk and justices of the peace constituting a town board are not the “local authorities” entitled to act under the statute. Rich and Hirschberg, JJ., dissented, with opinion.
    Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from an order of the Supreme Court, made at the Westchester Special Term, bearing date the 6th day of May, 1910, and entered in the office of the clerk of the county of Westchester, confirming the report of a referee.
    
      Walter C. Anthony [Charles M. Sheafe, Jr., with him on the brief], for the appellant.
    
      C. Morschauser, for the respondents.
   Burr, J.:

The vital question in this case is as to the meaning of the Words “ local authorities ” in section 33 of the Railroad Law (Gen. Laws, chap. 39; Laws of 1890, chap. 565). Among other things this section provides as follows:. “At any point where a. railroad crosses a street, highway, turnpike, plank-road, or traveled way, at grade, or where a steam railroad crosses a horse railroad at grade, and the corporation owning or operating, such railroad refuses, upon request of the local authorities, to station a flagman or erect gates, to be opened and closed when' an engine or train passes, the Supreme Court or the County Court, may, upon the application of the local authorities and upon ten days’ notice to the corporation, order that a flagman be stationed at such point, or that gates shall be erected thereat, and that a person be stationed to open and close them when an engine or train passes, or may make such other order respecting the same as it deems proper.” This statute requires that the “ local authorities ” shall, in the first instance, present their request to the corporation, and, in the event of its refusal, to the court. This requirement is either arbitrary or rests upon reason. If the latter, it must be that the Legislature intended by the words “ local authorities” those persons having control and authority over the highways, who are responsible for the safety thereof, and who in the first instance were called upon to determine as to the necessity of such gates or flagman. This construction is sustained by authority.. Section 91 of the Railroad Law (as amd. by Laws of 1907, chap. 156), which relates to the consents necessary to the construction of a street surface railroad, is explicit that such consent shall be “of the local authorities having control of that portion of a street or highway upon which it is proposed, to build or operate such railroad.” In construing that section the court uses this significant language: “It is very evident, by reference to the connection in which the Legislature frequently uses the term ‘ local authorities,’ that what is meant is, those officers on whom' the administration óf the government of the particular political subdivision of the State, by virtue of their office, devolves, in relation to the subject matter of the legislative provision. I think we need not delay to enforce this seemingly self-evident proposition by abundant illustration from the laws. ” (Matter of Rochester Electric R. Co., 123 N. Y. 351.)

In Matter of Highway Commissioners, Town of Niagara (72 Hun, 575), the proceedings were , instituted by the highway commissioners. The point was raised that they were not the local authorities referred to in the statute. It was held. that they were, “for the reason that they are the authorities who are particularly charged with the care of the highways of the town,” and the proceeding was sustained.

In Matter of Highway Commissioners, Town of Islip (74 Hun, 44); Matter of Highway Commissioners, Town of Brook haven (Id. 46), and Matter of Highway Commissioners, Town of Islip (Id. 48), the proceedings were in each instance instituted by the highway commissioners, and the question was not raised in those cases that they were not the proper authorities.

In the case of Town of Lysander v. S., L. & B. R. Co. (31 Misc. Rep. 330) the question was with regard to the necessary consent to operate a street surface railroad across the bridge over the Seneca river, and the question in the case was whether, by. . the words “local authorities,” are intended the trustees of the village or the commissioners of highways of the town. It was held that the latter officers were the ones referred to, and referring to the Rochester Electric R. Co. case, above cited, the court said: “The Court of Appeals has said that the local authorities, to' whom the statute refers, as the source of consent to be given, are the officers of the city, town or village, whose duties and powers relate to the supervision, care and maintenance^of the streets and_ highways.” That case was affirmed upon the opinion of the Special Term (51 App. Div. 617).

Who were the local authorities having control of the highways when this proceeding was instituted? It does not appear from the record when the' notice of application to the court was served, but as the petition was not verified until May 26, 1909, the proceedings could not have been instituted before that. day. The Town Law, which went into effect February 17, 1909, provided that there should be a superintendent of highways. He was to be appointed or elected by the town board, according as the towns might determine. (Consol. Laws, chap. 62 [Laws of 1909, chap. 63], § 80.)

While the supervisor, town clerk and justices of the peace, or any two of such justices, constitute the town board of the town.(Id. § 131, as amd. by Laws of 1909, chap. 140), and may be deemed the general governing board of the town, there is nothing in the statute which gives them control over the superintendent of highways, or devolves any part of his duties upon such board. On the contrary, in the. administration of the highway system, the commissioner of highways is an independent public officer, exercising public powers and charged with public duties specially prescribed by law. (Flynn v. Hurd, 118 N. Y. 19, 27.)

On May 25, 1909, the day before this petition was verified, the Town Law was amended with' respect to the persons who should constitute the town officers. (§ 80, as amd. by Laws of 1909, chap. 491, § 1.) This ■ amendatory act (§ 3) also repealed the former provision of the Town Law (§ 109) with reference to the commissioners of. highways, and left their powers and duties defined by the Highway Law. That law, which went into effect February 17, 1909 (Consol. Laws, chap. 25; Laws of 1909, chap. 30), provided for the election or appointment' of a • town superintendent of highways ■(§§ 40, 41), and defined his duties specifically as to several things, and generally that he was to. “ perform such other duties and have such other powers as may be imposed or conferred by law, or the rules and regulations of the commission, including the powers and duties heretofore exercised or performed by highway commissioners.” (§ 47, subd. 14.)

As the duty in the first instance of determining as to the necessity for gates and a flagman and compelling the railroad to furnish the same- formerly devolved upon the highway commissioners and is now devolved upon the town super- • intendent of highways, he was the local authority who, in the first instance, must make application to the railroad corporation and, in the event of. its refusal, further application to .the court. • .'

These proceedings were instituted by the supervisor, town clerk and two of the justices of the peace of the town of Pawling. Unquestionably they are town officers, and in .a sense local authorities, but so are the assessors, collectors,' overseers of the' poor, and the constables. They were not the local authorities contemplated by the statute under consideration.

I think, therefore, that these proceedings were improperly instituted; that- the defect is a jurisdictional one, and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the proceedings 'dismissed, with costs of a special proceeding to the appellant.

Jenks, P' J., and Woodward, J., concurred; Bioh, J., read for affirmance, with Whom Herschberg, J., concurred.

Rich, J. (dissenting):

I dissent. The town hoard of the town of Pawling, composed of its supervisor, town clerk and justices of the peace, are “local authorities ” of such town within the meaning of those words as used in section 33 of the Railroad Law, which authorizes the Supreme Court to order a flagman or gates at a grade crossing. The appellant contends that under Matter of Highway Commissioners (72 Hun, 575), Matter of Highway Commissioners (74 id. 48) and Matter of Highway Commissioners (Id, 46), the commissioner of highways is the only local authority upon whose application the court can acquire jurisdiction of a proceeding of this character.. Section 80 of the Town Law provides for the election of 'a “superintendentof highways” in each town. Section 33 of the Railroad Law uses the term “local authorities.” While a superintendent of highways is a local authority of a town, I do not think that the Legislature intended to confer the power of proceeding under the provisions of section 33 upon that officer but upon the local authorities.

I vote for affirmance.

Hirschberg, J., concurred.

Order reversed, with ten dollars costs and disbursements, and proceedings dismissed, with costs of a special proceeding to the appellant.  