
    In the Matter of the Petition of The Third Avenue R. R. Co.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 9, 1890.)
    
    1. Railroads—Constiutional Law—Laws 1889, chap. 531.
    Section 13 of chap. 531, Laws 1889, which provides that any street surface railroad company may operate any portion of its road by cable or electricity, or any power other than steam, instead of by animal or horse power, on consent of the owners of one-half the property on that part of the route, is in conflict with art. 8, § 18, of the constitution, which requires also the consent of the local authorities to the construction or operation of a street railroad.
    3, Same.
    An existing street railroad cannot, under said act, dispense with the consent of the city authorities to the use by it of cable power in the operation of its road.
    Appeal from order of special term, denying application for a writ of mandamus to compel the commissioner of public works to issqe a permit to relator to open the streets along its route for the purpose of laying cables therein for the operation of its road.
    
      George Hoadley, John E. Parsons and E. Lauterbach, for app’lt; D. J. Dean, for resp’t.
   Van Brunt, P. J.

The petitioner is engaged in operating a street surface railroad in the city of New York, using animal power for the purpose of drawing its cars. By resolution of the common council, adopted in 1852, granting the privilege of operating a street railroad by any power other than steam power, confirmed by act of the legislature in 1854, the petitioner acquired the franchise which it has hitherto enjoyed. The conditions of that franchise conferred upon the petitioner the power to disturb the public streets as much as was necessary in order to lay its rails and tracks, leaving the surface of the street unbroken. The only disturbance of the street which was allowed by the charter was the temporary excavation required for embedding the ties and stringers which supported the tracks and rails, and, when they were put in place the surface of the street to be left unbroken, passageway even, and superstructure solid. The petitioner, being desirous of constructing a cable road instead of a railway operated by horse-power, in the year 1887 applied for a mandamus directing the commissioner of public works to grant to the petitioner a permit to make the necessary excavations in the street for the purpose of laying cables between the ¡Dresent rails as motive power for its cars.

This application having been denied, 48 Hun, 477; 16 N. Y. State Rep., 86, and such denial affirmed by the court of appeals, 112 N. Y., 396; 21 N. Y. State Rep., 8, upon the ground that the petitioner had acquired neither by the charter nor the resolution nor the act the right to open, excavate, or use below the existing surface of the streets, save for the temporary purpose of laying its track and for necessary repairs thereto, in 1889,'by chap. 531 of the Laws of that year, it was provided that any street surface railway company might in any case operate any portion of its railroad by cable or electricity, or by any power other than steam locomotive power, instead of by animal or horse power, which should be approved by the state board of railroad commissioners, and consented to by the owners of one-half in value of the property bounding on that portion of the road as to which a change of motive power was proposed. And it was further provided that it should be lawful for any such railroad company to make any changes in the construction of its road or road-bed at any time rendered, necessary by a change in its motive power. The railroad commissioners and a majority of the property owners having approved of such change, the petitioners now renew their application to compel the commissioner of public works to grant them the necessary permit to build their cable road.

• It is claimed upon the part of the commissioner of public works that chapter 531 of the Laws of 1889 is in conflict with § 18 of article 3 of the constitution of the state- of Hew York. Section 18 provides that the legislature shall not pass a private or local bill in any of. the following cases, and, after enumerating several classes of cases, it proceeds: “ Granting to any corporation or association or individual the right to lay down railroad tracks.” It provides that the legislature shall pass general laws providing for the cases named in the section, and for all other cases which in its judgment might be provided for by general laws, “ but no law shall authorize, the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounding on, and the consent also of the local authorities having control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained.”

The question presented in the case is whether this claim of the commissioner of public works is well founded. It is to be observed that by the provisions of the constitution the prohibition of the granting of franchises to private corporations for the purpose of building street railways, which power had been greatly abused prior to the adoption of this amendment to the constitution, was intended to protect two interests which were necessarily affected by such grants, namely, that of the abutting owners upon the street in which the road was to be operated ; and, secondly, the city itself, whose duty it was to see that the street was kept in condition for the use and passage of the general public. It thereby provided that the legislative power to make such grants should depend upon the consent of the property owners and the consent of the city authorities. In the case at bar the consent of the property owners has been obtained to the construction of this cable road, but the consent of the city authorities has not been secured; and the question presented is whether, under the act of 1889 referred to, the consent of the city authorities can be dispensed with.

In view of the decision of the court of appeals upon the previous application of the petitioner for a mandamus, we think that but one answer can be given to this question. It is claimed upon the part of the petitioner that it did not seek to construct or operate a new road, but simply to change the motive power in the operation of a road which they have already the right to maintain and operate. It was held, however, in the previous case that the proposed construction or change of the present street railroad to a cable road was the building of an absolutely new road, subjecting the streets of the city to new burdens, which, under its original franchise, the petitioner had no right to impose. It was further held that the previous application made in order to carry forward its scheme, as disclosed by the papers in that case, was for a permit to make immediate excavations in, and at frequent intervals of space across, the public streets of thé city throughout its entire route, and that no license or word of permission to do so could be found in its charter; that the road was completed; and, as the learned justice said who delivered the opinion in that case: “ The relator had then no right to again disturb the surface of the streets, except for necessary repairs and replacing of its ties and rails as occasion might require, for the proper maintenance of its road. That power it had ; no more. It now, however, asserts a legal right to make excavations, not for any of the purposes of its track or roadway, or the foundation of either, but for the purpose of laying a cable in each track between the present rails as motive power for its cars by the agency of steam from stationary engines. A mere statement of the proposition should be a sufficient answer to the claim.

To open a city street for the construction of a surface railroad track or its reparation, and to open that street for the introduction of a power to operate the road, would seem to be separate and distinct things. In the first, the excavation ends with the construction. The material of the street is replaced, or, in lieu of it, eóme other substance which restores the surface to its original unbroken condition and usefulness, and leaves all below the surface to such uses as the municipality may require. In the other case, as the record discloses, the cable requires a conduit of mason-work, the necessary excavation for which, on .a straight stretch of road without curves, is six feet wide, and from four to five feet deep. Where there is a double track, there must be two of these trenches, and at intervals of thirty-five feet along the whole distance, they must go still deeper for drainage; and where there are curves the width of the excavation must be, at least, from twelve to fifteen feet. At a corner the pit will be thirty feet in width, and at the engine houses, whence the cable extends to the conduit in the street, it will be necessary to excavate the entire street from 'the engine-room out to and beyond the track furthest from it. None of these things are required for the construction of a street surface railroad; none of them pertain even to its operation. They relate to some act or thing to be done below the surface.”

It was therefore held that the petitioner had exhausted its power under its charter; that there could be found within its charter nothing which authorized it to impose the additional burdens upon the street which was sought to be done by a change from the ordinary street surface railroad to a cable road; and that, therefore,‘the commissioner of public works was justified in refusing a permit to the petitioner to construct this new railway, and subject the streets to the additional burden sought to be imposed upon them.

This being the condition of the law, it seems to be difficult to understand how it can be claimed that the granting of the authority for the building of this new road is not in contravention of the article of the constitution which has been quoted, which says that no law shall authorize the construction or operation of a street railroad except upon the conditions therein stated. Bearing in mind, as already stated, that one of the objects requiring the consent of the city authorities was to prevent the public streets from being burdened by these franchises to the detriment of the . public use, how can it be claimed that a road already in existence having the right to do one thing, the legislature have the power to grant it the right to do anything and everything else along its original route. It is the granting of authority to construct and operate a new road which the petitioner has not the slightest authority either to construct or operate under its present charter. We are unable to see, in view of the exposition of the law which was given upon the previous appeal, to ¿which attention has beqn called, that there can be any question but what the constitution prohibits the imposing of additional servitudes upon the streets without the consent of the local authorities, and that there cannot be any question but that this authority to construct and operate this cable road is the conferring of the right to impose such additional burdens upon the streets in contravention of the provisions of the constitution. The right to operate a street surface railroad is one thing; the right to operate a cable road is another; and, as the court of appeals™ have decided that the powers of the petitioner to construct a street railroad have been ■exhausted, it is difficult to see how another and different right, a new and independent right, can be conferred, in view of the prohibition of the constitution. There is no provision authorizing the conferring of additional powers upon an old corporation which the legislature may not confer upon a new. The prohibition is general: “ But no law shall authorize the construction or operation of a street railroad.” The attempt to authorize the construction of a cable road in the place of a street railroad which is already in existence, created under a charter which gave the petitioner no right to build a cable road, was clearly the conferring of an additional power, an additional franchise, in violation of the prohibition of the constitution. It is urged upon the part of the petitioner that, it having the right to construct a street railroad, no additional authority is conferred ; that the cable road is a street railroad; and that it will simply operate a street surface road the same as before. But the difficulty is that the petitioner has no right under its present, charter either to construct or operate a cable road. The construction and operation of a cable road places additional burdens upon the public streets; and the constitution has said that such burdens shall not be imposed except with the consent of the city authorities; and it does not seem that there can be any difference between the conferring of such authority upon an old corporation and the conferring of such authority upon a new. We think, therefore, that the act of 1889 attempts to authorize the construction and operation of a street railroad under circumstances expressly prohibited by the constitution.

The order appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur.

[Note.—This case was reversed by the court of appeals June 17,1890.—Ed.]  