
    The People, App’lts, v. The Broadway R. Co. of Brooklyn, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed March 10, 1891.)
    
    1. Raileoads—Foefeitbee fob failbbe to constbbct branches.
    Defendant, was organized under chap. 303, Laws 1858, and the general railroad act, and constructed its road within eighteen months upon the route specified, for about four miles and a half. By chap. 461, Laws 1860, it was authorized to construct three branches as specified, and also whenever certain streets should be opened, graded and paved to extend tracks through them. It was also to complete the branches by October 1, 1861, or “as soon thereafter as the said streets and avenues within said city shall have been opened, graded and paved, and upon any planked road or roads, whenever the consent of the plank road companies shall have been obtained.” In 1861 defendant had laid a mile and a half of tracks through certain streets and operated them until 1876, when it removed the tracks and never since maintained or operated any road therein. In 1887 it laid 3,000 feet of tracks on Central avenue, but never operated cars thereon. A number of the streets named had been opened, graded and paved during the interim. Meld, that it was the intention of the act of 1860 that the road was to be extended as the streets were opened and graded and the consent of the plank roads obta ned, and that defendant was bound to build roads on the paved streets before October 1, 1861, and upon the other streets when they were opened, graded and paved, and not having done so that it had forfeited its franchise.
    3. Same.
    Chap. 598, Laws 1875, and chap. 598, Laws 1879, giving an extension of time for any railroad company which had been unable to construct its road, do not apply to defendant, as it had commenced the construction of its road.
    
      Appeal from judgment of the supreme court, general term, third department, reversing judgment of forfeiture of franchises, granted by chap. 461, Laws 1860, and perpetually enjoining defendant from their exercise.
    This action was commenced in May, 1888, to have declared forfeited, for non-user, the franchises obtained by the defendant under chap. 461 of the Laws of 1860, in certain streets of the city of Brooklyn. The defendant interposed an answer to the complaint, and the action was brought to trial at a special term, where judgment was rendered forfeiting the franchises as prayed in the complaint. From that judgment the defendant appealed to the general term, where the judgment was reversed and an absolute judgment was given for the defendant dismissing the complaint, and then this appeal on behalf of the People was taken to this court. The material facts appear sufficiently in the opinion.
    
      Benj. F. Tracy and Jesse Johnson, for app’lts ; Geo. W. Wingate .and Thos. S. Moore, for resp’t.
    
      
       Reversing 39 N. Y. State Rep., 343.
    
   Earl, J.

The defendant was organized in pursuance of the act, chap. 303 of the Laws of 1858, under the general railroad act, and it was required to complete its road through the streets mentioned in the first section of the act within eighteen months from the passage of the act. It constructed its road within the the time mentioned upon the route specified, a distance of about four miles and a half. In April, 1860, the act, chap. 461 of the laws of that year, was passed, § 1 of which is’as follows:

‘ It shall be lawful for the Broadway Railroad Company of Brooklyn, organized by virtue of the act hereby amended, to lay down a single line of railroad track, commencing at their present track at South Sixth street, through Eighth street, to and across Broadway, to Ross street, and double line of railroad tracks through said Ross street and Bedford avenue to Fulton avenue; and whenever Mostrand or Rogers avenue shall have been legally opened, graded and paved, to extend the line of double tracks through Fulton and either Mostrand or Rogers avenue to the village of Flatbush. Also, to lay a single line of railroad track, commencing at their present track bn South Sixth street, through Eleventh street to South Fifth street; through South Fifth street to Montrose avenue; through said avenue to Morrell street; through Morrell to Johnson street; through Johnson street to intersect the track of said company on Broadway, and a double line of tracks from Morrell street, through Johnson, to its intersection with the Cypress Hills plank-road, and through and over said plank-road to Cypress avenue; and whenever Cypress avenue shall have been legally opened and graded, to extend a double or single track on said avenue to Cypress Hills Cemetery. Also, whenever White, Bogart or Thames streets, and Central or Knickerbocker avenue, shall have been legally opened and graded, the said company are authorized to lay a double or single line of railroad track through and over the same to the city line, from the intersection of either White or Bogart streets with the Hills plank-road, and the track hereinbefore authorized to be laid on said plank-road, with, the privilege to lay tracks for the necessary turnouts, which tracks, when laid, shall be maintained and operated by said company in conformity to the several provisions of the act hereby amended relative thereto.” And § 3 of the act is as follows:
“ Said railroad company shall complete the tracks upon the said several streets and avenues or roads named in the first section of this act on or before the first day of October, eighteen hundred and sixty-one, or as soon thereafter as the said streets and avenues within said city shall have been opened, graded and paved, and upon any planked road or roads whenever the consent of the plank-road companies shall have been obtained.”

The defendant accepted the act and the franchises and rights thereby given, and assumed the obligations thereby imposed. At the time of the passage of the act' of 1860 Eleventh street from South Sixth street to Sou,th Fifth street, South Fifth street from Eleventh street to Montrose avenue, Montrose avenue from South Fifth street to Morrell street, Morrell street from Montrose avenue to Johnson street, and Johnson street from Morrell street to’ Broadway, were city streets opened, graded and paved and traveled and in use as such. The aggregate length of such streets was about one mile and a half. In the fall of 1860, the defendant constructed a single line of railroad tracks through such streets, and began to operate the same with cars on the 1st day of March, 1861; and so it continued until in the year 1876, when it removed its tracks from those streets, and it has never since maintained or operated any road therein. In 1887, the defendant commenced the construction of its road on Central avenue, and expended in so doing upwards of $12,000, and laid upwards of 3,000 feet of tracks, when it was stopped by adverse litigation; but upon the tracks thus laid it has never operated any cars.

It thus appears that during the twelve years prior to the commencement of this action the defendant did not maintain or operate a railroad upon any of the routes mentioned in the act of 1860, and that during twenty-eight years prior to the commencement of this action it did not attempt to build or maintain, any railroad upon any of the routes mentioned in the act of 1860, except as above mentioned.

The claim on the part of the plaintiffs is that for the non-user of the franchises conferred upon the defendant by the act of 1860, and for its neglect to perform the obligations assumed by it under that act, it forfeited all its rights and franchises under the act j and so it was held at the special term.

The defendant claims that it was not bound to build its road upon any one of the routes mentioned in the act until the streets upon such route were opened, graded and paved so that the road could be constructed upon the whole routes and, therefore, that it had not forfeited any of its franchises; and so the general term held, and reversed the judgment of the special term.

The general and special terms differed as to the construction of the act of 1860, and as the real merits of the controversy between the parties depend upon the construction of that act, we will, in the main, confine our attention to that.

As the judgment of the general term does not state that the reversal was upon the facts, we must presume it to have been solely upon the law, and not upon the facts, or in the exercise of any discretion. Code, § 1338.

The act of 1860 was obtained by the defendant, or in its interest. It may be assumed that the language therein contained was the languge chosen by it to define the rights and franchises which it sought by the act. As the act conveyed to it franchises and special privileges, its language must be construed most favorably to the people and all reasonable doubts in construction must be solved against the defendant. Words and phrases which are ambiguous, or admit of different meanings, are to receive, in such cases, that construction which is most favorable to the public. Barrett v. The Stockton & Darlington R. R. Co., 2 M. & G., 134; Stourbridge Canal v. Wheeley, 2 B. & Ad., 792; Fertilizing Co. v. Hyde Park, 97 U.S., 659; Sprague v. Birds-all, 2 Cowen, 419; Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y., 444; People v. N. Y. & S. I. F. Co., 68 id., 71; Langdon v. The Mayor, etc., 93 id., 129.

The act must now be construed as the courts would have construed it if it had come in question soon after its passage. The defendant cannot claim a liberal or enlarged construction of the act to shield itself against a forfeiture alleged to have been voluntarily incurred. It would be quité a paradox to hold that it could enlarge its franchises or extend its rights by exposing them to condemnation for non-user. The language of the act must, under all circumstances, and in all proceedings and actions, receive the same construction and have the same scope and meaning. But while the act is to be strictly construed in such a case, the conduct under the act which is claimed to constitute the forfeiture of corporate rights and franchises is to have a charitable and liberal construction like any conduct tending to penal consequences. In considering such conduct courts will lean against forfeitures, and the doctrine that courts are reluctant to declare and enforce forfeitures can have no other application to such a case as this.

A few other facts must now be stated. Not only were the streets above mentioned, upon which the railroad was built in 1860, opened, paved and graded, but in that year Eighth street, from South Sixth street to and across Broadway to Ross street, and Ross street to Bedford avenue, and Bedford avenue to Fulton avenue were opened, graded and paved, and" the aggregate length of these streets was about two miles. Fulton avenue, from Bedford avenue to Nostrand avenue, was opened, graded and paved prior to 1855. Nostrand avenue, from Fulton avenue to the city line and the village of Flatbush, was opened on or prior to September, 1859, and graded and paved from Fulton street to Butler street prior to the year 1867, and from Butler street to the city line in 1869. Rogers avenue was opened in 1870, and graded and curbed from Dean street to the city line in 1875, and graded and paved from. Bergen street to-Dean street in 1886. The remainder of Rogers avenue is now a part of Bedford avenue, which was opened, graded and paved about the year 1870. Johnson street to its intersection with Cypress Hills plank road, and the plank road to Cypress avenue, were opened, making a good dirt road from Morrell street to the avenue, a portion of which was macadamized, and the whole of which is now known as Johnson avenue and used as a public street or highway, although it has never been opened, graded and paved under that name as one of the streets of the city. Cypress avenue, from its intersection with Johnson avenue to the city line, is a good country dirt road, but it has not been paved. Bogart street to Thames street was not paved until about the year 1887. Thames street, from Bogart street to opposite and adjacent to Knickerbocker avenue, and White street, from Johnson avenue (formerly Cypress Hills plank road), to a point adjacent to Central avenue, have not been opened, graded or paved. Central avenue extends from Flushing avenue to the city line, a. distance of about 9,900 feet. It was opened in the year 1871 a distance of about 9,100 feet and was graded and paved a distance of 6,000 feet on or prior to March 29, 1875, and a distance of 260 feet further in 1885, The remainder thereof was never graded or paved, and the portion thereof which is now graded or paved is about 3,600 feet in length. Knickerbocker avénue extends from Flushing avenue to the city line, a distance of about 9,200 feet. It was opened from Myrtle street to Greene avenue, a distance of about 2,000 feet, on or prior to Hovember 18, 1872. Between Flushing avenue and the city line it has been graded and paved for a distance of about 3,600 feet; on about seven or eight hundred feet of that portion of the avenue there is a dirt road which is used as a street and on which there are some houses; the remainder of such avenue is in fields entirely unimproved.

The defendant, having accepted the law of 1860, was bound to act under it. It could not accept the franchises given to it and then leave them in abeyance. They are supposed to have been given, not exclusively for the benefit of the defendant, but also in the interests of the public. It cannot be supposed that the legislature meant to give them without imposing obligations upon the defendant to build its roads until certain streets running out into the country should, in the distant future, be opened, graded and paved. Why was this act passed in 1860, if it was not intended or supposed that anything was to be done under it for twenty-five or fifty years ? Can it be supposed that the legislature meant to confer these franchises upon the defendant, leaving it optional with it whether it would build its roads in one or fifty years? Such legislation would be against public policy, and such, a legislative intent cannot be presumed.

It must be supposed that the defendant applied for the franchises and that the legislature granted them intending that they should be used, at least to some extent, and so far as practicable, in the near future. Why, then, did the defendant not at once construct the first route mentioned in the act, from South Sixth street to Fulton avenue? The streets on that route were opened, graded and paved, and no reason can be perceived why the road there should not have been built simply because Nostrand or Eogers avenues had not been opened, graded and paved. It was the plain intent that the road upon that route should be presently built, and that when Nostrand and Eogers avenues should have been legally opened the road thus built should be extended to the village of Flatbush. It cannot be properly said that a road is “ extended ” unless it is then and there existing to be extended. The- very language implies that the road was to be built and then, after the opening of the avenues mentioned, extended.

It was the manifest intention of the act that a road should be built upon the second route mentioned therein, to wit, through Eleventh street around to Broadway, and a double line of tracks from Morrell street to the Cypress Hills plank road, and through and over the plank road to Cypress avenue. That was a road also to be extended when Cypress avenue had been legally opened and graded. But its construction was not to be delayed until that event happened. The streets on a large portion of that route were actually opened, graded and paved, and the plank road was there an open highway upon which, by its consent, a railroad could be built. It is said in answer to this that it was not shown that the defendant had the consent of the plank road company. But it was its duty to use reasonable efforts and due diligence to obtain that consent, as it was its duty to use reasonable efforts and due diligence to build its road upon the routes mentioned. If it had shown that it could not procure the consent of the plank road company, that would have been a reasonable excuse for not building its road thereon; but no such proof was given or attempted, and therefore the fact that it was not shown that it had procured the consent of the plank road company is no answer to the claim that it was its duty to build its road upon that route. But for several years before the commencement of this action the plank road had disappeared and no tolls were there taken, and it was not necessary, therefore, for the defendant to procure its consent The legislative authority was all that was needed for the construction of its road upon that route. Therefore it was in default for not building its road upon that route.

Whenever White, Bogart or Thames streets, and Central or Knickerbocker avenue, should have been legally opened and graded, the company was authorized to lay a single or double line of railroad tracks through and over the same to the city line. But as these streets were not opened or graded it is quite clear that the defendant was not bound to build its road upon that route. But all these routes were part of an entire railway system. They were really branches of the Broadway road, the trunk line of the defendant. The third route above mentioned was evidently intended to be operated in connection with a portion of the second route mentioned, and the cars thereon were expected to reach Broadway and other parts of the city over that,route. If that route (the third) had been the only one upon which the defendant was authorized to build its road by act of 1860, the condition of things existing would have been an answer to any claim, that it had forfeited its franchise to build its road there. But when it has utterly failed upon other parts of the system connected with it, and has forfeited its rights and franchises upon them, then it must be deemed also to have forfeited its franchises and rights upon that route. It would be contrary to the manifest intention of the legislature that the defendant should fail and refuse to build and operate railroads upon all the other routes, and yet retain the right to build and operate a road upon that route. Its franchises upon that must fall with the franchises upon all the other routes.

So, if we look at § 1 of the act of 1860 alone, we find certain routes upon which roads could be presently built, and certain routes upon which roads were to be built when streets had been opened, graded and paved. Upon the former routes the defendant was bound by the terms of that section, standing alone, to build roads within a reasonable time. Upon the latter routes it was bound to build roads when the conditions existed which are referred to in the section.

But the defendant relies upon § 3 of the act and claims that that limits the times when it was bound to exercise its franchises and build and complete its roads, and the proper construction of that section is the main question in this case. The language of that section leaves no doubt that the legislature intended that the tracks upon some of the streets and avenues should be laid before the 1st day of October, 1861: and effect should, if possible, be given to that intention. We think it was the intention of the legislature, by the first clause of the section, to provide that roads upon the portions of -the routes which we have above mentioned, where the streets were opened and graded, and somé of them also paved, and more or less built upon, should be at once constructed and completed by the time mentioned, and the other clause providing for the construction of roads upon streets “ as soon as the said streets and avenues shall have been opened, graded and paved,” has reference to streets which were not then opened, graded and paved which are mentioned in the first section, to wit: Cypress, Nostrand, Rogers, Central and Knickerbocker avenues and the small streets connected with them. These two clauses of § 3 should be read distributively. The first clause should be applied to the streets above specified upon which roads could. be presently built, and the second clause should be applied to the other streets mentioned. The familiar rule of construction embodied in the Latin phrase “ reddendo singula singulis,” is peculiarly applicable to such a section as this. Endlich on Interpretation of Statutes, §§ 256, 416; Staats v. Hudson River R. R. Co., 4 Abb. Ct. of App. Dec., 287; Freethy v. Freethy, 42 Barb., 642; Coffin v. Hussey, 12 Pick., 289; Commonwealth v. Jordan, 18 id., 228; McIntyre v. Ingraham, 35 Miss., 25.

It cannot be supposed that the legislature intended to give the defendant, by the language used, an option to build its roads at any time it chose to, absolutely binding it to build them only when all the streets and avenues upon any one of the routes should be opened, graded and paved.

The argument on the part of the plaintiff to show that the claim of the defendant, that it was not bound to build upon any route until it was entirely “ opened, graded and paved” is untenable, finds some support in the provision in this section, that the defendant should build upon any plankroad whenever the consent of the plankroad company could be obtained. There was no other limit to the time of building its road upon that route, and it was bound, as we have before said, to use reasonable diligence to obtain such consent, without unnecessary delay.

It is said on behalf of the defendant that it would not have been profitable to build roads upon these various routes until each route was opened to the final termination thereof as provided in § 1. But even if it were absolutely certain that the defendant could have made no profit by building the roads to the extent which we have above indicated, yet that is no answer to the proposition that it is the duty of the defendant to build them. It applied for this act, and accepted the franchises, and thus took upon itself the obligation and burden to exercise the franchises for the public benefit. If these routes could not presently be made profitable for railroad purposes, it should not have applied for the act; or, the act having been passed, it should not have accepted the franchises. It was not bound to accept them. It may have been supposed and expected at the time that the building of these roads would stimulate the growth of the city in those parts, and thus that a road unprofitable at first would soon become, by the very facilities which it furnished, a profitable enterprise and investment.

It is said on behalf of the defendants that by the act, chapter 905 of the Laws- of 1867, it was absolutely prohibited from building its railroad upon Bedford avenue, and that such prohibition is an answer to its default in reference to that avenue. But at the time of the passage of that act it had been in default for upwards of five years, and that default was a cause of forfeiture. That route, however, is not now very important. If it is true, as said by the defendant, that the provisions of the last-named act prevent the building of the road, then a judgment forfeiting any franchise it had there can do it no harm. The scope of that act is not very certain, and does not extend to the whole route, and, therefore, it was quite proper that that route should be included in the condemnation visited upon the defendant by the judgment of the special term.

By the act, chapter 598 of the Laws of 1875, it was enacted that any railroad company which had been unable from any cause to construct its railroad within the period specified in its charter should have its time for construction extended for two years, arid that “failure by any railroad company to construct its railroad heretofore shall not cause a forfeiture of its corporate powers,” and by chapter 351 of the Laws of 1879, a further extension of two years was given in substantially the same language as was also given by the act, chap. 405 of the Laws of 1882; but in the second section of the latter act it was provided that the provisions of the act should not apply to any corporation or company that had already commenced the construction of its road. The latter act, therefore, clearly did not apply to this defendant, for it had long before constructed its main line, and had also commenced the construction of the lines specified in the act of 1860, which it subsequently abandoned.

But these acts do not apply to this defendant for another reason. It does not appear that it was unable, from any cause, to construct roads which we hold it was bound to construct under the act of 1860. These acts were not passed to aid corporations which wilfully and intentionally omitted to construct their roads, but to aid such corporations as were unable, from some cause, to construct them. Nor was the act of 1875 intended for a corporation which, at the time of its passage, was in default for not building its road within the time limited in its charter. It expressly applied to corporations which may have been unable, from any cause, to construct their roads within the times limited in their charter or articles of association; and the extension was for a further term of two years beyond the time thus limited, and not an extension of two years from the time of the passage of the act. The further extensions in the subsequent acts were simply for a further term of two years beyond the times theretofore limited. So that if these three acts could be held to apply to the defendant, .their combined effect, at most, would be to extend the time for the construction of its roads for six years from the 1st day of October, 1861.

But even if we were to hold that these extensions applied to this company so that it was not in default until two years after the passage of the act of 1882, then for several years thereafter, without any reason whatever, so far as appears in this record, it had omitted to exercise its franchises and was liable to the condemnation visited upon it by the judgment of the special term.

The power of the court to declare the franchises of the defendant forfeited for non-üser is undoubted. Code of Civ. Pro., § 1799; People v. Turnpike Co., 23 Wend., 204; People v. Troy House Co., 44 Barb., 625; People v. Railroad Co., 53 Barb., 98; Matter of Jackson Ins. Co., 4 Sandf. Ch., 559; People v. Dispensary Society, 7 Lans., 304; Ward v. Insurance Co., 7 Paige, 294; Conrad v. Trustees of Ithaca, 16 N. Y., 158; People v. Albany, etc., R. R. Co., 24 id., 261; Denike v. Lime, etc., Co., 80 id., 599; Moore v. Brooklyn City R. R. Co., 108 id., 104; 13 N. Y. State Rep., 97; State v. Hartford, etc., R. Co., 29 Conn., 539; People v. Louisville, etc., R. R. Co., 120 Ill., 49; Thomas v. Railroad Co., 101 U. S., 84; Chicago Life Ins. Co. v. Needles, 113 id., 580.

This defendant should not stand in the streets of Brooklyn claiming franchises which for many years it refused to use, and thus bar out other railroads which might be constructed for public convenience and accommodation. If these franchises are of no value it is not harmed by the judgment of the special term. If they are valuable and of growing worth, it should have discharged its duty to the public by using them.

We are, therefore, of opinion that the judgment of the general term should be reversed and that of the special term affirmed, with costs.

All concur, except O’Brien, J., taking no part.  