
    The Village of Mechanicville, Plaintiff, v, The Stillwater and Mechanicville Street Railway Company, Defendant.
    (Supreme Court, St. Lawrence Special Term,
    July, 1901.)
    Village street railway corporation — Its duty to pave in aind outside of its permanent way — L. 1892, ch. 676, § 98; 1901, ch. 494, § 1.
    A franchise or contract, given in 1882 and renewed in 1894, by a village to a street railway corporation, now operated by electricity, contained the requirement that the space between the rails and for twenty inches outside of them, on both sides of the track, should be paved by the railway corporation with “ small stone ” and “ that the same should at all times be kept in good condition.” In. 1899 the village required of the railway corporation a six inch excavation filled in with sand or gravel and covered with vitrified paving brick. The railway corporation refused to pave and the village, at its own expense, did the work it had required.
    Held, that the village could recover the expense of the railway corporation, as the village had a right to exact what it deemed a pavement suitable in 1899, and was not limited to requiring a pavement composed of “ small stone.”
    That the contracts or franchises granted by the village trustees, persons having limited powers, were not a defense, as the trustees could not give up the streets to private corporations nor surrender the right of the public to have the streets in proper condition for use
    
      That the act (L. 1892, ch. 676, § 98), requiring a street surface railway corporation to keep its street way in repair as and when directed by the local authorities, did not impair the obligation of contracts, and that the act (L. 1901, ch. 49'4, §1), ratifying pre-existing contracts between street railway corporations and villages, constituted no defense.
    Action to recover the cost of repaving the streets in said village of Mechanicville, contiguous to defendant’s tracks, made necessary by the maintenance and operation of defendant’s railway.
    D. A. Lockwood, for plaintiff.
    Thomas O’Connor, for defendant.
   Russell, J.

The plaintiff seeks to recover the cost of repaving the streets in the village of Mechanicville, contiguous to the defendant’s tracks, made necessary by the maintenance and operation of the defendants railway. The defendant objects on the ground of non-liability, because the notice to repair was informal, and did not specify the kind of bricks or blocks desired, and required the work to he done under the supervision of the village engineer. The defendant also claims that a contract was made and a franchise given, specifying the kind of paving to consist of small stone between n the rails and twenty inches outside, which could not be altered by the Legislature or by the requirement of the situation, and that chapter 494 of the Laws of 1901 (§ 1) ratifies pre-existing contracts with street railway companies in cities of the third class, towns or villages.

Two franchises were given to the defendant and contracts made 0 • t by it with the village in pursuance of the resolution of the trustees. The first was November 20, 1882, which provided as follows :

" Fifth. The space between the rails and the space of at least twenty inches wide outside the said rails on both sides of the track shall he paved with small stone and the same shall at all times he kept in good condition.”

November 26, 1894, a similar franchise was given, embracing a like clause to the one quoted. On the 29th of August, 1899, a notice was served by the village requiring a six-inch excavation filled in with sand or gravel and covered with vitrified paving brick. The Railway Company declined to conform to the notice and did not attempt to do the paving even in its own way, so that the village was compelled to do the work at its own expense. No previous controversy seems to have arisen between the parties, but it may be fairly assumed, if the village authorities had any right to require suitable pavement, they had the power to take into consideration all of the factors necessary to the exigencies then existing for the service of the public, the needs of a growing community for the proper passage along the public streets, and the care required to allow vehicles a smooth way and proper ability to avoid cars propelled by electric power in these days, when street railway cars are no longer moved by the lingering horse.

It is also well to remember that no village trustees, who have limited powers, can withdraw from the public the use of the streets to give them up to private corporations. Such powers are held in trust for the public benefit and cannot be abrogated or delegated to private parties. Milhau v. Sharp, 27 N. Y. 611; approved, Story v. New York Elevated R. R. Co., 90 id. 158, 161.

It is also well to bear in mind what was the situation and what the rights of the parties had there been no provision in regard to pavement or keeping the streets in good condition. Here was a railway company asking, for its own private emolument, the right to pass along the streets dedicated to the use of the public. It was seeking a privilege which could be of no service to the village except as it conveyed passengers for compensation. Its use of that street would necessarily be limited to the least possible disturbance of the public uses. If it tore up any portion, the obligation of restoration lay upon it. If any part got out of repair within the fair limits of its own uses, and because of its interference with the ordinary public service, the proper repairs should be made by the privileged and exceptional user.

The parties, therefore, gave or received a franchise or contract, the name of which is immaterial, under the recognized situation and obligation as then apparent. They confirm such obligation by the provision that the space the railroad used should be then paved with small stone, but also added that the same should at all times be kept paved and in good condition.” This construction is recognized by the Legislature in its revision of the Railroad Law (Laws of 1892, chap. 676, § 98). It is there declared to be a duty to the public on the part of the railway company to keep the street way in permanent repair between the tracks and two feet outside under the supervision of the proper local authorities, whenever required by them to do so, and in such manner as they prescribe. Provision is also made for the method of enforcement. This act is proper and forceful. Conway v. City of Rochester, 157 N. Y. 33; People ex rel. Russell v. City of Utica, 45 App. Div. 356.

The ease of Gilmore v. City of Utica, 121 N. Y. 561, cited by the defendant’s counsel, does not conflict with these assumptions. The Court of Appeals there recognized the power of the common council to act under the right conferred upon them by the Legislature, but held that, if the common council chose to not exercise their discretion, taxpayers who were assessed for improvement could not complain in order to relieve themselves.

FTor does the case of the City of Binghamton v. Binghamton, etc., R. Co., 61 Hun, 479, if of authority, furnish a precedent to overthrow the power of the common council or village trustees to provide suitable pavement. In that case, the evidence showed the street to have had no paving at all at the time the contract was made, and the General Term of the Fourth Department decided that the transition from a dirt road to concrete pavement was too much in the nature of a burden to be justified.

The condition of the franchise here provided for pavement and adopted for the then present small stone as suitable to the situation. It would be a dangerous conclusion to .reach to hold, as asked by the defendant’s counsel, that this provision gave the railway company the right to pave the. streets with small stone for all future generations, whatever the emergency which excited other requirements, in the exercise of the judicial discretion confided to the trustees acting in the interest of the public. Such a principle would also determine that, even if the village trustees waived the obligation of the railway company, that company could prevent by law the interruption of its business through the digging up of the street and putting in another pavement suitable to the conditions necessary, even though done at the expense of the village.

But the remainder of the condition agreed to provided that the space referred to should at all times be kept paved in such manner as made a good condition. It may very easily be presumed, from the lapse of seventeen years, such a condition of pavement required other than small stone, and that neither of the parties expected or intended that the particular kind of material then to be used, with horse cars running and, perhaps, a small amount of business transacted in the village, was preserved by choice then made and operative forever.

Would the street railway company maintain a different position if it found the use of small stone derogatory to its capacity to conveniently receive passengers and propel its cars by electric power'?

The right of our Legislature, preserved by the Constitution, to regulate the reasonable use of corporate privileges, does not violate the provision of the Federal Constitution forbidding the impairment of the obligation of contracts. Every corporation takes its right even to exist subject to. this power of the Legislature, and certainly do those who ask for and receive from the Legislature the privilege of limited responsibility, and the right to take property against the will of the owner, within the shield of corporate action. And certainly the act of 1901 in reaffirming contracts does not add to the advantages of the corporation by giving to it more than does the contract itself, and the implied understanding upon which it was based originally conferred.

Judgment is directed for the plaintiff for $1,209, and interest from December 1, 1899, besides costs.

Judgment for plaintiff, with costs.  