
    People ex rel. Harvey, appellant, v. Edward V. Loew, respondent.
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    Constitutional law—Local and. special legislation—Laws 1867, chapter 489, AS AMENDED 1885 (554), IS UNCONSTITUTIONAL, BEING IN CONFLICT WITH SECTION 18, ARTICLE THREE OF THE CONSTITUTION.
    The acts of the legislature, chapter 489, laws 1867, as amended by chapter 554, laws 1885, giving Harvey the right to build an experimental elevated road, and, as a reward for his labors, granting to him the five percent of the earnings of the Greenwich Elevated road, which had been originally appropriated to the use of the city as compensation for the use of the street, are unconstitutional, and in conflict with section 18, article 3 of the constitution, which prohibits the passing of any local or private bill, “granting to any corporation, association or individual the right to lay down railroad tracks.”
    
      S. Hand, for appellant, the people, etc.
    
      D. J. Dean, for respondent, Edward V. Loew.
   Finch, J.

The legislation upon which the claim of the relator is founded, discloses very questionable and peculiar characteristics. He is authorized to build an experimental section of elevated railway, not less than one-quarter of a mile in length, upon some duly authorized street of the city, with a view of inventing or discovering improvements in the system, which, if adopted, will make the existing structures less offensive or convenient. The section is to be, not a model, but an actual operating railway, and yet is to be such wholly for experimental purposes—not transporting passengers, or open for public use, but subject to the continuous changes and trials born of new ideas, and made to test their effectiveness and value. The length of this experimental section beyond one-quarter of a mile is in the discretion of the relator. He may, if he chooses, extend it to the exterior bounds of the city. Its size, character and mode of construction are, in like manner, largely in his discretion, and he may thus obstruct an avenue of travel, or take away the property rights of abutters without any provision for their compensation. No time is limited for its continuance. So long as the relator is alive to invent and experiment he may test his ideas upon the structure built, or remodel or change it, unless the legislature shall put an end to the enterprise, or the relator determine that his improvement is complete. The law does not say to whom the improvements shall belong, nor even that they shall be introduced on any existing or future elevated railway; and the result of the whole enterprise, as planned by the statute, will only be that the city and the state will learn that some things in mechanical engineering can or camiot be successfully accomplished. Of course, the relator did not propose to thus educate himself and tíre city—himself by experiments, and the city by results—at his own expense, or without compensation; and the mode of accomplishing that is as unusual and peculiar as the enterprise to be paid for.

Under an act passed in 1867 (chapter 489), the West Side and Yonkers Patent Railway Company was authorized to build an elevated railway in Greenwich street, and did so construct it, and was required to pay five per cent of its net income into the treasury of the city of New York as compensation for the use of the streets. By a supplemental act passed the next year (chapter 865, laws 1868), this fund was required to be kept separate from other city funds, and to be applied by the commissioners appointed under the original act to the improvement of the occupied streets “by preserving or transplanting shade trees, or by other embellishments or improvements of awnings or sidewalk structures; ” and this payment was declared to be “the legal compensation in full for the use and occupancy of the streets by said railway,” and to constitute “an agreement in the nature of a contract between said city and constructing company.” But in 1885 this fund thus belonging to the city under what was called a contract, and devoted to the improvement of its streets, was diverted to Charles T. Harvey, engineer, for building his “illustrative section.” The whole sum then on deposit with the comptroller was about $268,000; and one-third of this was directed to be paid to Harvey “forthwith,” “for the purpose of defraying the expenses of experiments as to said motive power now in progress, and for making surveys and other preparations for building said section.” A “like amount” was to be paid “as the work upon said section progresses”—a stipulation quite significant—and then, when the section is complete, and certified by the governor, state engineer and mayor to have “demonstrated or developed material improvements in the methods of constructing or operating elevated railroads,” all sums “ remaining in or accruing to said fund ” are to be paid over to Harvey, who, after having thus completed his section and its improvements, is nevertheless to continue experimenting with a view to “attaining the highest possible perfection; ” the annual five per cent to continue to be paid to him to aid his struggle towards that perfection “until the legislature shall otherwise direct.” There is no provision in the act for an audit of the engineer’s accounts; nothing which determines what proportion shall be compensation, and what expense, and he would be strangely disinterested if the latter did not dwindle to increase the former. It is true that he gave a bond, but that was conditioned only that he would faithfully perform his duties, or, in other words, faithfully experiment.

That this arrangement was in fact an appropriation of the money of the city to the private benefit of the relator, at least so far as the portion now claimed to be payable is concerned, and that the appearance of a public purpose thrown about it is colorable merely, is contended by the city, and has much of probability to support it. The first one-third of the money is payable forthwith, cash down; another third as the work progresses. The engineer is left at liberty to absorb the first third absolutely; to put it in his purse, and keep it as his own. He may then begin experiments and pay for them, and take his own compensation out of the second third “as the work progresses,” for that is the provision of the law; and so there may be nothing which the city or the state has a legal right to demand of the engineer as the consideration of the first payment. The engineer can begin no construction until upon some ‘ duly authorized street. ” The city cannot give the authority in and of itself. Laws 1860, chap. 10; Laws 1884. The legislature has not done so, and may never, and the relator will not be in default, and may rest quietly with the $56,000 in his possession, content with the situation. It is true that the law speaks of experiments “now in progress.” But these were Harvey’s experiments. No one directed him to make them. Neither the city nor the state, so far as the record shows, owed him anything for that, or was under the slightest legal or equitable obligation to bear their expense, or compensate him therefor. And as to the “surveys” and preparations, he is left at liberty to treat them as part of the “work,” as they in fact are, and draw their expense from the second $56,000. The consideration for the first payment is not easily evolved from the terms of the law, and that a gift was intended in the nature of a reimbursement for losses sustained seems to be disclosed by the document handed up after the argument, and it may very well be that the first payment of $56,000 was purposely placed in the power of the relator, upon a merely colorable consideration, in order to give him a gratuity to that extent. But since the possible facts, if we knew them all, might change the aspect of the case in this respect, it is better to rest our conclusion upon a less debatable foundation.

The enactment violates section 18 of article 3 of the constitution, which prohibits the passing of a local or private bill “granting to any corporation, association, or individual the right to lay down railroad tracks. ” The relator,' or, if he be treated as a mere agent, the municipality itself, is authorized by a bill which is certainly “local,” if not “private,” to build an elevated railroad in some street of the city. It is not a sufficient answer to say that the track thus to be “laid down” is merely experimental and temporary, for the language of the fundamental law is purposely very broad, and draws no such distinction. But this track, although experimental, is not temporary. As we have seen, it is permanent and durable, having no limitation except the future will of the legislature. It will be a railroad not less than a quarter of a mile long, and may be made much longer, and serve, under the guise of an experiment, to fasten, in the end, a new road upon the city. That this is not an idle supposition is indicated by the appellant’s supplemental brief. After speaking of one possible interpretation of the law, he mentions another “which may validly carry with it the process of duly authorizing certain streets to be used for these railroad purposes, through the medium of a constructing corporation, as intended by the legislature and the memorialist.” The relator, perhaps, intended to organize a new corporation to help build his “illustrative section,” and then own and run it, although the statute is innocent of any such expressed purpose. Wherever the road runs, it must necessarily take either the fee of private owners, or the property of abutters; for in all respects it is to be an elevated road. The act of 1885 describes it as “a new illustrative section of said form of railway;” and, going back to the act of 1867 to discover that form, we find it to be an elevated track on each side of the streets, supported by iron columns not less than fourteen feet above the level of the pavement. No provision is made for compensation to abutting owners or owners of the fee.

For these reasons, without considering others which have been suggested, we are of the opinion that the act under which the relator claims is invalid. The judgment must be affirmed, with costs.

All concur.  