
    In re Application of Thirty-fourth Street Railway Co., etc., appellant.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Railroad in street—Appointment of commissioners to decide as to NECESSITY OF, NOT DISCRETIONARY—CONST. N. Y., ART. 8, § 18.
    Article 3, section 18, constitution New York, which st-ites that the court, upon application, may appoint commissioners to decide as to whether a street railroad shall be built, where the property owners will not consent, does not confer upon the court a discretion to appoint or not as it shall deem just or discreet. It must appoint when a case is presented contemplated by the constitution. When either by the constitution, or by statute, jurisdiction is conferred upon a court, the court cannot entertain or decline jurisdiction in its discretion. It is bound to exercise it when the case arises, and its exercise is invoked by a party interested and having the right to make the application.
    2. Same—Commissioners to decide as to whether road is to be constructed.
    The court has not the discretion to grant or deny the application upon their determination as to the utility or necessity of the proposed road. The question as to whether the proposed road ought to be constructed shall, in the first instance, be decided by commissioners.
    3. Same—Constitutional law—Laws 1884, chap. 252, § 14—Consent of RAILROADS ALREADY OCCUPYING STREET.
    Chapter 252, section 14, of the Laws of 1884, is not unconstitutional on the ground that it constitutes a delegation of legislative power in requiring the consent of roads already occupying the street, before a street railroad can be built upon such street, and the fact that such existing road had refused to consent to the construction and operation of the road of petitioners is not a ground for rejecting the application for the appointment of commissioners.
    Appeal from, general term supreme court, first department, denying motion for the application of commissioners to determine whether the road should be constructed.
    
      Joseph L. Auerbach, for appellant.
    
      Horace Russell, for respondent.
    
      
       Reversing 37 Hun, 442..
    
   Andrews, J.

The order of the general term, from which this appeal is taken, denied the application of the Thirty-fourth Street Railroad company, a corporation organized under the street surface railway act, passed May 6, 1884, for the appointment of commissioners tu determine whether the proposed road of the petitioner ought to be constructed. The petition upon which the application was made, avers the incorporation of the petitioner under the act of 1884; that its route extends from the ferry on Hudson river, at Forty-fourth street, in the city of New York, to Tenth avenue, and thence to Thirty-fourth street, and through Thirty-fourth street from the Hudson river to the North river; that it had obtained the consent of the mayor, aldermen and commonalty of the city of New York to the construction and operation of its road, but had been unable, after diligent effort, to obtain the requisite consent of the owners of property bounded on that portion of the streets upon which the proposed road was to be constructed ; that due notice of the application had been given,, pursuant to the fifth section of the act, and concludes with a prayer for the appointment of commissioners under its provisions. The granting of the application was resisted by the owners of 'abuttingproperty on Thirty-fourth street, on two grounds: First, that the route of the proposed road of the petitioner is coincident, in part, with the routes of existing surface street railroads in actual operation, constructed prior to the passage of the act of 1884, whose consent to the construction of the petitioner’s road had not been obtained, but had been refused; and, second, that the proposed road would greatly damage property abutting on the streets through which it was to be constructed and that neither public necessity nor convenience required the construction of a street railroad on the route of the petitioner.

On the hearing of the application the petitioner proved the substantial averments of the petition; and on the part of the contestants it was shown that the part of the petitioner’s route on Forty-fourth street and Tenth avenue, comprising about three-fifths of its whole line, was coincident with the route of other street railroad corporations-who had constructed and were operating roads thereon under their several franchises, and that these corporations' had refused to consent to the construction of the road of: the petitioner. The contestants also gave evidence tending to show that the proposed road would seriously impair the value of private property on Thirty-fourth street, and that no public interest required its construction.

The majority of the judges of the general term concurred in opinion that the authority vested in the court by the act of 1884, to appoint commissioners to determine whether a proposed surface street railroad ought to be constructed and operated, in case the requisite consents of property owners could not be obtained, was discretionery, and not imperative, and that, as it had been made to appear that the consent of the other railroad companies operating coincident-routes could not be obtained, and as, under the act, the obtaining of such consent was a condition precedent to the-right of the petitioner to proceed with the construction of its road, the application should be denied, in accordance with the maxim, lex neminem cogit ad vana. One of the two judges who concurred in the decision was of opinion that the application should be denied upon the further ground that it appeared by the affidavits on the part of the contestants that the property abutting on Thirty-fourth street, on the fine of the proposed road, would be greatly depreciated in value by its construction and operation.

We cannot review an order resting in the discretion of the court below, and the point to be determined is whether, upon the case presented, the petitioner was, as matter of law, entitled to an order appointing commissioners pursuant to the application. The determination of tins question involves a consideration, to some extent, of the legislative scheme embraced in the act of 1884. The legislature, in dealing with the subject of street railways, was under certain restrictions imposed by article three, section eighteen of the constitution. It is sufficiently exact for our present purpose to state that, under the constitutional provision,, authority to construct and operate street railroads must be conferred by general laws, and then only on condition of obtaining the consent of the local authorities, and also of the owners of one-half in value of the property bounded on that portion of the street or highway upon which the proposed road is to be constructed, or, in case the consent of property owners cannot be obtained, the section declares that “the general term of the supreme court in the district in which it [the railroad] is proposed to be constructed, may, upon application, appoint three commissioners, who ¡shall determine whether such railroad ought to be constructed or operated; and their determination confirmed by the court, may be taken in lieu of the consent of the property owners.” The act of. 1884 is a general law for the construction of surface street railways, and embodies the constitutional conditions of consent by the local authorities and of the property owners, with the proviso, also authorized by the constitution, for a determination by commissioners to stand in lieu of the consent of-property owners, in case such consent cannot be obtained. In addition to the constitutional conditions the act annexes a third condition not enjoined therein, viz.: that no surface street railroad company shall construct, extend, or operate its road or tracks in that portion of any street, avenue, road or highway in which a street railroad is or shall be lawfully constructed, except with the consent of the company owning and maintaining the same, with a qualification not material to the present inquiry. Section 14. The fourth and fifth sections of the act are framed to give effect to the last clause of article three, section eighteen of the constitution, relating to the appointment of commissioners. The fourth section authorizes the company, in case the consent of property owners required by the act cannot be obtained, to apply to the general term of the supreme court for the appointment of three commissioners to determine, after a hearing of all parties interested, whether such railroad ought to be constructed and operated. The fifth section directs that notice of the application rtiall be given and served upon the non-consenting property owners, and that the general term, to which the application shall be made, upon due proof of the service of the notice. “ shall appoint” three disinterested persons to act as cob missioners. The sixth section declares that the commissioner shall determine, after a public hearim f all the p- rties in interest, whether the proposed railroad ought to be (f nstructed and operated, and shall make a report thereon, with the evidence, to the general term, and that the deteim.-nation of the commissioners that the road ought to be constructed and operated, confirmed by the said court, 1 ‘ shall be taken in lieu of the consent of the property owners.”

The right of the Thirty-fourth Street Eailroad Company, under the act of 1884, to construct and operate roads, was subject, therefore, to three precedent conditions: the consent of the local authorities; the consent of property owners, or, in lieu thereof, the determination of commissioners in its favor; and the consent of the companies having coincident routes. It is clear that all these conditions must be performed before any right to proceed with the construction of the road, or any pari thereof, can be exercised. This proposition, however, assumes that the condition requiring the consent of railroad companies having coincident routes was lawful. This point was considered by the general term, and the power of the legislature to annex this condition was affirmed, and we concur in the conclusion of the court below upon this branch of the case.

The opposite view is urged upon two grounds: First, that the constitution has prescribed the conditions upon which street railroads may be constructed, and by implication excludes the imposition by the legislature of conditions other than those prescribed therein; and, second, that a condition requiring the consent of existing railroad companies to the construction or operation of another road is a grant of legislative power to the company whose consent is required, and is therefore void. The first contention proceeds upon a misconception of the object of the constitutional provision, and of the rules governing the interpretation of constitutional restraints upon legislative power. The plain purpose of the constitution in requiring the consent of the local authorities and of property owners to the construction of a street railroad was the protection of public and private interests against hostile and injurious legislation, and to prevent the appropriation of highways to railroad uses by legislative grant, without consulting the interests of the locality. The consent of the local authorities and of property owners was therefore made necessary; but, to meet the contingency of an unreasonable opposition on the part of property owners, a tribunal was authorized to be created to determine whether the public interests required the construction of the proposed road, whose determination in its favor, when confirmed by the court, was to stand as a substitute for such consent. But the constitution, neither by express language nor by implication, abridges the legislative power over the subject outside of the matters particularly enumerated. It needs no citation of authorities to sustain the postulate that, except as restrained by the constitution, the legislative power is untrammeled and supreme, and that a constitutional provision which withdraws from the cognizance of the legislature a particular subject, or which qualifies or regulates the exercise of legislative power in respect to a particular incident of that subject, leaves all other matters and incidents under its control. Nothing is substracted from the sum of legislative power, except that which is expressly or by necessary implication withdrawn. The legislature is prohibited from granting a franchise to construct a street railroad, except upon certain specified conditions. But it is not prohibited from annexing further conditions not inconsistent therewith; and whether other conditions are necessary or proper is a matter resting in the wisdom and discretion of the legislature.

The claim that the provision in the act of 1884 requiring a company organized thereunder, whose route is coincident with that of another road, to obtain the consent of the latter to the construction of the new road, before it can proceed to construct or operate the same, constitutes a delegation of legislative power, is not, we think, well founded. The act of 1884 was complete and operative from the moment of its passage. The franchise acquired by a company organized under its provisions is perfect, according to the nature of the franchise intended to be given, from the moment the corporation comes into existence. The legislative grant was conditional, and not absolute. The consent of another company, in a case where such consent is required, confers no franchise upon the company by whom it is obtained. The consent simply meets one of the conditions prescribed by the statute upon which the right of the company to construct and operate its road depends. If consent is refused, the law is not defeated, but remains perfect and complete as before. The company, upon consent being refused, is not deprived of its franchise. A failure to obtain such consent simply puts in abeyance its right to proceed with the construction of the proposed road until the obstruction is removed; and this precise situation was within the contemplation of the legislature when the act was passed. The legislature imposed the condition, in its discretion, for the protection of existing companies. It may hereafter, in its discretion, remove the restriction and abrogate the condition. But its right to impose it is unquestionable. Whether the legislature, in creating this condition, proceeded upon public reasons, or had in view the protection of private interests only, does not affect the question of legislative power. The legislature by the act of 1884, in substance determined that it was inexpedient to permit a competing street railroad to be constructed on the line of another road, unless the existing road should consent. This was a contingency subject to which the petitioner acquired its franchise. The existing company, whether it consents or refuses to consent, neither creates the franchise, nor defeats it; and whether it consents or not there enters into its decision no element of legislative power.

In the legislation considered in Barto v. Himrod (8 N. Y., 483), the vice consisted in the legislature remitting to the decision of the people, at a popular election, the question' whether a certain enactment should have the force of law. The legislature in that case abdicated its functions as the law-making power, and in substance proposed a law for enactment or rejection by the people. The law now in question contains no such element, and there are numerous precedents of analogous legislation to be found in our statute. See In re New York Elevated R. Co., 70 N. Y., 343; In re Gilbert Elevated R. Co., id., 374; Bank of Borne v. Village of Rome, 18 id., 38; City of Philadelphia v. Street R. Co., 4 Brewst., 14; State v. Monmouth Plank Road Co., 26 N. J. Law, 99.

The grounds upon which the decision at general term mainly proceeded in denying the application, viz., that the appointment of commissioners would be futile by reason of the non-consent of the other roads occupying coincident lines, and that the construction of the petitioner’s road would occasion great injury to private property, remain to be considered. We think it cannot be justly claimed that, under the constitution, the court, on the application for the appointment of commissioners, is vested with any discretion to grant or deny the motion upon a consideration of the question of the utility or necessity of the proposed road. The act of 1884 is to be construed in the light of the scheme of the constitution, with reference to which the act was passed. The constitution declares the general principle that street railroads shall not be constructed without the consent of property owners interested. But it recognizes that there may be a conflict between public and private interests, and that the public convenience may require the construction of a street railroad in a case where the consent of the property owners cannot be obtained. To meet this contingency it creates a tribunal to determine this question, consisting of commissioners to be appointed by the court. The language of the constitution, that the court, upon application, may appoint commissioners, does not confer upon the court a discretion to appoint or not as it shall deem just or discreet. It confers authority to appoint when a case is presented contemplated by the constitution. When either by the constitution, or by statute, jurisdiction is conferred upon a court, the court cannot entertain or decline jurisdiction in its discretion. It is bound to exercise it when the case arises, and its exercise is invoked by a party interested and having the right to make the application. See Macdougall v. Paterson, 11 C. B., 772; The Queen v. Tithe Com’rs, 14 Q. B., 459. The constitutional scheme contemplates that the determination whether a proposed railroad ought to be constructed, hi case the consent of property owners cannot be obtained, shall in the first instance be decided by commissioners. We concur, on this point, with the view of the learned judge who dissented in this case, that the constitution confers upon the court primarily a mere naked power of appointment, and that it gives no power to the court to hear, try, or determine, in the first instance, the question that is to be sent to the commissioners. The power of the court to pass upon the merits of the application arises only-after the commissioners have made their report and returned. the evidence taken by them; and this power, though not expressly given, is implied from the provision that the determination of the commissioners, “confirmed by the court,” may be taken in lieu of the consent of the property owners. While, on the one hand, the decision by the court, in the first instance, that the proposed • road ought to be constructed, would not satisfy the constitutional provision, and justify the construction of the road, on the other, a. contrary determination cannot deprive the applicant of the right to have the question determined in the first instance-by the tribunal designated in the constitution.

We find nothing in the act of 1884 in conflict with the-plain sense of the constitution. It is supposed that the provision in fifth section, requiring 'notice to be given of the-application to non-consenting property owners, implies a. right on their part to be heard on the question of the propriety or necessity of the proposed road, and to have the-question decided at that stage of the proceedings. It is not. necessary to attribute this purpose to the legislature in requiring notice to property owners. The requirement of notice enables property owners to appear on the hearing,, and oppose the application on the ground that the petitioner is not in a situation to make it, and also to be heard in respect to the selection of commissioners. It cannot be-assumed that the legislature intended, by the provision for notice, to confer upon the court a power inconsistent with the scheme of the constitution.

• The ground that the appointment of commissioners would be futile by reason of the fact that other companies had refused their consent to the construction and operation of the road of the petitioner is not, we think, a sufficient; answer to the application. Inability to obtain the consent-of the property owners is, under the statute, the only prerequisite to the application for the appointment of commissioners. The consent of other railroad companies having coincident routes is another but independent condition, for which the statute provides no alternative or substitute. Nor does it prescribe the order in which the several consents shall be obtained. It may be granted that if it had been made to appear that an insurmountable difficulty stood in the way of the construction and operation of the road of the petitioner, and not a mere present obstacle to the exercise of the franchise, the court would not have been bound to grant the application. But the fact that the other companies had, prior to the application, refused' the consent, does not show that the appointment of commissioners would be a vain and useless proceeding. The decision of the competing roads was in its nature revocable. The question on their part was one of prudence and policy, and it is quite conceivable that circumstances might subsequently arise which would lead to a reversal of the prior decision, and to the giving of a consent which had been previously withheld. The determination of commissioners that the proposed road ought to constructed, if sanctioned by the court, might, itself operate as a reason for changing the prior decision. The petitioning company could not safely enter into engagements with other companies for the acquisition of the right, to construct its road on the street occupied by their tracks, so long as it remained uncertain whether it could obtain a favorable determination of commissioners as a substitute for the consent of property owners.

We are of opinion that the court erred in refusing to appoint commissioners, and that the order appealed from should therefore be reversed, and the case remitted to the general term for further proceedings.

All concur.  