
    Eugene Clifford Potter, Appellant, v. Charles H. T. Collis, as Commissioner of Public Works of the City of New York, and The Mayor, Aldermen and Commonalty of the City of New York, Appellants ; The Eighth Avenue Railroad Company and The Metropolitan Street Railway Company, Respondents.
    
      Taxpayer's action—.when .it lies—restraining t’he issue of a permit to a railroad company to change its motive power to electricity—power of the Legislaiw'e over the streets of a city — effect upon, rights reserved by the city —when the title of an act sufficiently expresses its subject.
    
    In orderto'justify an action by a taxpayer, brought under the provisions Of section 1 of .chapter 531 of the Laws of 1881, -as amended by chapter 301 of the Laws of 1892,-or under section 1925. of the Code of Civil Procedure, against, a public officer or an officer of a municipal corporation, it must appear that the act complained of, or which the taxpayer seeks to restrain, is an illegal official act, or the action must he one to prevent waste or injury to, or to make good, . property, funds, or estate of the municipal corporation.
    The power of the Legislature, unless restricted by the Constitution, is absolute .Over the property held by a municipal-corporation for public-Use, and it may granito a.railroad company the use of its streets.
    Chapter 478 of the Laws of 1874, requiring the Eighth Avenue Railroad Company to extend its road over certain streets and avenues, and to carry passengers at the -same- rate of fare as before, and further providing that, when' the extension was completed, “said company shall use, maintain and operate its' ■ railroad during the term for which said company was incorporated, upon and along the several streets and avenues in the city of. New York, upon and over which its railroad is now in use and operation, and upon and over such extension," is a valid exercise of legislative power, and whatever rights the city of New York had to acquire the railroad during the period of time mentioned in this act for its continuance would be inconsistent with the act and be suspended during that time.
    The title of this act, “An act to require the Eighth Avenue Railroad Company to extend its railroad route in the city of New York, and to regulate the use and operation of the railroad of said company,” sufficiently expresses its subject within the requirements of section 16 of article 8 of the Constitution of the State of New York.
    
      Qumre, whether a right reserved to the city to acquire the railroad would entitle a taxpayer to maintain an action for" an injunction restraining the city authorities from permitting a change of motive power, on the ground that it would impose additional burdens upon the city when it elected to exercise such right.
    The fact that an applicant to a city commissioner of public works for a permit to excavate streets and avenues in order to change the motive power of a railroad, also needs a permit from the board of electrical control, .does not make illegal the act of the city commissioner of public works in granting the permit.
    The Legislature, in granting to the State Board of Railroad Commissioners power to authorize a change of motive power by a railroad, intended that the power to be used should be applied in a way which could not contravene the established policy of the State as to overhead electrical wires.
    Appeal by the plaintiff, Eugene Clifford Potter, and by the defendants, Charles H. T. Collis, as Commissioner of Public Works of the city of Hew York and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of May, 189T, denying the plaintiff’s motion for an injunction pendente lite, and vacating an injunction contained in the order to show cause.
    
      Wheeler H. Peckham, Robert Earl and William L. Turner, for the appellants.
    
      James C. Garter, Elihu Root, William F. Sheehan, Bronson Winthrop and John M. Scribner, for the respondents.
   Ingraham, J.:

The plaintiff, as a taxpayer, brings this action to restrain the commissioner of public works from issuing a permit or giving permission to the defendants, the Metropolitan Street Railway Company and the Eighth Avenue Bailroad Company, or either of them, to make excavations in any of’ the streets of avenues, of the city for the purpose of changing the railroad operated; by " the said defendant corporations from a horse railroad to an electric road to be operated by Underground currents of electricity, and to declare any permit null and. void which has been issued by the commissioner of public works. The plaintiff, as a -taxpayer, insists upon his right to maintain this action under the provisions of chapter. 531 of the Laws "of. 1881, ás finally.amended by.chapter 301 óf the Laws, of 1892, andséction 1925 of the Code of Civil Procedure.

■ SectionT of chapter 531 of the Laws .of-1881, as finally amended by chapter 301 of the Laws, of 1892, provides "that “all officers, agents, commissioners and other persons acting, or who have acted for and on behalf of any. county, town, village or municipal corporation in this State, and each and every one- of them, may" be prosecuted and an action or actions may be maintained against them, to prevént any illegal official act on the part of .any such officers, agents,” etc., by any person or corporation whose - assessments shall amount to $1,000 and "who shall be liable to pay taxes on such assessments in the county, toym, village or municipal corporation, to" prevent the Waste or injury of whose property the action is brought..

‘ Séction 1925- of the Code provides that an -action-.to obtain a judgment preventing waste of or injury to the ’ estate, funds oi* other" property of a- county, .town,.city or incorporated village of the State, may be maintained either by a" citizen resident therein or by a corporation, -who is assessed for and is liable to pay, or within one year, before the commencement of thé action has paid, a tax therein.

• To justify "an action against a public officer, or an officer of a municipal .corporation, under the. provisions of either of these laws,., the'act complained of and which the action seeks to restrain must-be "an illegal official act, or the action must be to prevent waste or injury to, or .to make good, any property, funds or estate of the municipal corporation. We have, first to determine, therefore, whether, upon the allegations of the complaint and: the affidavits submitted to the court below, the commissioner of public Works, in issuing the .permit described in the complaint, did, or threatened’ to do, any- illegal official act, and whether that act was a waste injury to any propérty, funds or estate of the city of Bew York. If these defendant railroad companies were entitled by law to this permit, so that if the commissioner of public works' had refused to grant it, he would have been required to act by mandamus, it must be quite apparent that his act in granting the permit would not be an illegal official act, and would not be a waste of or injury to the property of the city which would justify the court in restraining him from issuing or giving effect to the permit.

The Eighth Avenue Railroad Company is incorporated under the General Railroad Act of this State, and for "upwards of forty years has been operating a railroad upon Eighth avenue and other streets and avenues in the city of New York. It has recently leased its road, under a lease, the validity of which is not attacked, to the defendant, the Metropolitan Street Railway Company. Subsequent thereto the Metropolitan Street Railway Company and the Eighth Avenue Railroad Company united in an application to the Board of Railroad Commissioners of the State of New York for the approval by the board of a change of motive power from horse to underground current of electricity upon the railroad of the Eighth Avenue Railroad Company, which is operated by the Metropolitan Street Railway' Company, and after a full hearing before that board the application was granted and the said board approved of a change of motive power from horses to an underground current of electricity upon such railroad operated by the Metropolitan Street Railway Company. It also appears that the consent of more than one-half of the property owners bounded on the streets and avenues through which the railroad, with respect to which the change of motive power is proposed, runs, has been obtained, and upon this action of the Railroad Commissioners and these consents the defendant railroad companies applied to the commissioner of public works for a permit to open the streets for the purpose of making the change in construction made necessary by the change in motive power. This ■ permit was granted by the commissioner of public works, and it was to declare such permit invalid and to restrain the commissioner oí public works from granting or recognizing the same that this, action was brought.

In the discussion of this question we must keep clearly in mind the power of the Legislature over the property of municipal corporations held by them for public use.' The principle may be stated, in its-broadest sense, as settled by the repeated' adjudications of the courts of this State, that the legislative power, unless restricted by special constitutional provision, is absolute as to the control over such property so held by municipal corporations., The Legislature may direct a municipal corporation to apply the property held by it to any public use which the Legislature, in its discretion, considers will be for the benefit of the public. So far as the public interests in the streets of the city of New York are effected, the power of tlió'Legislature over them is absolute,- subject to express restrictions contained in" the Constitution. . Thus Judge Dillon, in his.work on Municipal Corporations (Vol. 2, § 657, p. 780), says: “ As respects the public or municipalities, there is * * * ". no limit upon the power' of the Legislature as to the uses to which streets may be devoted.” And this principle-has been applied many times by the. courts of this State. In the case of People v. Kerr (27 N. Y. 192) it was expressly held that, so far as the existing, public rights in the streets in the- city of New York are concerned, such as.the right of passage over them as. common highways, the Legislature has supreme control over themthat so long , as the use to which the highway or any other public property or right is to be applied is a public use, it is a matter of discretion in the Legislature to-pérmit its .application or transfer,, and the people must question their action elsewhere than in the courts. And in the case of Darlington. The Mayor, ete., of New York (31 N. Y. 187) it was distinctly held that the Legislature had the power .to divert any of the -property held- by the city to any public use that concerned the city or its inhabitants. Judge. Dillon, in speaking of the general legislative power of municipal corporations, says : “ The Legislature, as-the trustee'for * * * the general public, has full control over the public property and the public rights" of municipal corporations. Accordingly, it may. authorize a railroad Company to occupy .the streets in a city, without its consent and without payment.” (1 Dillon on Mun. Corp. § 71, p.121.) And in the Matter of N. Y. Elevated R. R. Co. (70 N. Y. 327) it was.expressly held that the constitutional provisions of the State of New York do not prohibit a private or local bill amending" the charter" of a private corporation by regulating powers, rights, privileges and franchises which it previously possessed; that a bill may be passed to regulate and control the right to lay down tracks previously existing, or to give new privileges or franchises, provided they be not exclusive, and that a bill may also be passed waiving a forfeiture of corporate rights, or giving a private railroad corporation the right to use new motive power, provided the right be not exclusive.

The Legislature has thus the absolute power to require the municipal corporation of the city of New York to apply the property held by it for such public use as the Legislature shall direct. It had the power to grant to a railroad company the use of the streets for a railroad. (People v. Kerr, supra ; Kellinger v. Forty-second Street, etc., R. R. Co., 50 N. Y. 206.) It had also the right to apply any other property or property right held by the city of New York to such a public use, without compensation to the city.

By chapter 140 of the Laws of 1854 there was conferred upon the Eighth Avenue Railroad Company a franchise to operate this road in the city of New York, which was the first authority to operate this road that had been attempted to be granted. The city of New York held the fee of a portion of the streets upon which this railroad company was to exercise its franchise under the act of 1854 above mentioned, in trust for the public, to be used as public streets; and thus the right or title of the city to these public streets, as well as whatever rights, if any, it had acquired under the contract made in pursuance of this resolution of 1851 and act of 1854, was subject to the control of the Legislature.

In the year 1874 the Legislature passed an act, being chapter 478 of the laws of that year, the 1st section of which provided : “Eor the better accommodation of the public the Eighth Avenue Railroad Company is hereby required, as soon as practicable, to extend its existing railroad tracks from their present terminus in the Eighth avenue, in-the city of New York,” through and along certain streets and avenues mentioned. The section further provided: “ When the said company shall have completed the extension of its railroad as required by this act, it shall run its cars thereon as often as the public convenience may require, and for the transportation of each passenger upon its railroad route when so extended, it shall be lawful for said company to charge and receive the same fares now charged by it for the conveyance of passengers, and no more.” By this section this company was required to extend its tracks and to transport passengers upon the extended route for the same fare that it had-received for transportation over its existing road-; and We must assume that, this was done in the interest of the public. The 2d section ■ of the statute then provided: “ When the extension required' by this act shall be completed and put in operation, said Company shall usé,, maintain and operate its railroad during the term for which said company was incorporated upon and along the several streets and avenues in the city of New York upon and over which its railroad -is. now in use and operation and upon arid over such extension.” . ' "

In pursuance of this statute the company built the extension required, and since that time has operated its road upon its tracks as ’' they existed prior to the passage of the act, as well as upon the tracks built as required by this act.

We are .referred to no constitutional provision then existing which affected the power of the Legislature, to pass this act requiring the railroad'company to build this extension and to operate its road as therein provided after the extension had been built. , As we have seen, the power of the Legislature to authorize the use of the streets, was exclusive and absolute. It had power, to permit and require this corporation to build- its road and. extend -its tracks as. in the act provided. It. had power to confer a franchise upon the company for the: operation of the road thus directed to be built. It had power to confer a franchise for the operation of. the' railroad upon the old’tracks, and to subordinate any right or interest held by. -the city of New York in its streets to the operation of this public use ; and whatever rights’, if any, the city had under the original resolutions and contract of 185-1, being subject to the control of the Legislature, which were inconsistent with the grant of the act of 1874, were at least suspended during the period for which this company was in express terms authorized and directed to ■ use,, maintain, and operate its road. ■ This view is entirely consistent with that expressed by the Court of Appeals in the case of Mayor, etc., v. The Eighth Avenue R. R. Co. (118 N. Y. 398). That action was brought to recover a. license fee for cars used by the defendant in the operation of its road. ' It was held that the act of 1874 had no application to the ■'obligation' of the defendant to pay such license fee to the city of New York. The right to operate the road during the period for which the company was organized was not at all inconsistent with the obligation of the defendant to pay the license fee to the city. Here, however, the right granted to the railroad company to operate -the road for a fixed period is entirely inconsistent with the right of 'the city to acquire possession of the road during that period, and thus oust the railroad company from its franchises and prevent its exercising the right expressly granted to it by the act in question. ■ That during all that period it will be liable to the city of New York for the license is settled by the case above cited, but the principle there settled has no application to the right of the city to terminate this right or franchise granted in express terms by the Legislature. There is nothing in this case of The Mayor v. The Eighth Avenue R. R. Co. which can be construed to hold that the franchise' which, by the express provisions of the act of 1874, was conferred upon this defendant is invalid, or can be abi’idged or destroyed by the act of the city of Hew York, or any authority other than the sovereignty that granted it.

Assuming, therefore, for the purposes of this case, that the right of the city to acquire this railroad would justify a taxpayer in restraining the city authorities from permitting a change of motive power on the ground that it would impose additional burdens upon the city when it elected to exercise the' right alleged to have been reserved by the resolutions of 1851, and the contract executed in pursuance thereof, it is clear that the provisions of the act of 1874, at least, suspended the right of the city to exercise any such privilege or option during the period that the company was directly required to" use, maintain and operate its railroad. And the railroad company having obtained the consent of a majority of the owners of property upon the road for a change of its motive power, and having obtained the authority of the Railroad Commissioners, as provided by section 100 of the Railroad Law (Laws of 1890, chap. 565), it was entitled to a permit from the commissioner of public works to open the streets for the purpose of malting the change in the construction- of its road or roadbed, rendered necessary by the change in its motive pov- er. The act of the commissioner in issuing the permit was, therefore, not an illegal act which the court would enjoin.

There are other objections to the validity and effect of this act of 1874, quite strenuously insisted on by the plaintiff. They have all been examined, but we do ’ not think, that any of them affect the validity of the act or prevent the effect which we have, indicated from being given to it.

It is also insisted in the briefs submitted by the learned counsel for the plaintiff' that this act- is unconstitutional as violating the Constitution of the United States and the- Constitution of the -State "of New York; We have before stated our views as, to the- power of the- Legislature over 'property held, by municipal corporations in trust for the public, or for the inhabitants of the city, and it' seems to us clear that the constitutionality of such control is not open for discussion in this State! It. is also insisted . that this act is iii violation of section 16 of article 3 of the Constitution of this State. We think, however, that the act is not invalid for' this reason. The title of the act is: “An. act to require the Eighth Avenue Railroad Company to extend its railroad route in the city of Hew York and to regulate the use and operation of. the railroad of said company,”. There is but one. subject referred to in the act; that is, the construction and. maintenance of a railroad in the city of Hew York, to- be. constructed and operated by the Eighth Avenue Railroad Company. That • subject is plainly expressed in the title!' The particular piece of road that the company is to construct is specified, and the company is required to.construct it; and then the use and maintenance of the road .which the Eighth Avenue Railroad Company is to operate is fixed, and the time during which it js so to operate and maintain the road is also fixed. Most of the special acts authorizing the construction and-maintenance of railroads would be void if this objection were held to be. well taken. In the special acts passed for the incorporation of railroad .companies,, under which many, of the railroads’in. this. State are at present operated, the act. incorporates, the company, fixes- the route) provides the term for' which- the franchise- shall' last, and regulates the■ construction, maintenance, and operation of the road. It has never .been suggested that such an act. included more . than one subject, and certainly this act provides for nothing more than the construction, of a portion of. the road which would make the railroad of .the defendant- a completed railroad, and for the exercise, of. the franchise to operate the road for the period during which such franchise is granted.

It is claimed by the plaintiff that a permit from the board of electrical control is necessary before the defendant can construct its-track. It is quite clear that, if this were so, it would not make the-permit of the commissioner of public works an illegal act. If the railroad company is entitled to such a permit from the commissioner of public works, the mere fact that a permit from other public authorities is also required would not make the act of the commissioner of public works granting a permit that he was required by law to grant illegal, and justify the court in granting an injunction to restrain his action.

There were, however, argued with this case the cases of Marie . Eisler against the same defendants, and Peter Roberts against, the same' defendants, which are actions brought by property owners abutting upon the streets through which this road runs; and in those cases an injunction is asked restraining the railroad companies from changing the motive power to -electricity without the permit of the board of electrical control, "on the ground that such construction would be without authority of law, and, therefore, a public nuisance. And it is urged that, if authorization of the Railroad Commissioners, independent of the board of electrical control, is sufficient for the change of motive power in the case at bar, the city may be inundated with overhead trolley wires and the object sought to be obtained by the establishment of the board of electrical control frustrated. We do not see that any such result can follow. The prohibition of overhead wires is just as binding upon the Railroad Commissioners, as upon any citizen. General prohibitory legislation in aid of a well-established legislative policy is-not repealed by subsequent legislation unless inconsistent therewith. The powers .conferred upon the Railroad Commissioners can all be exercised without infringing upon the prohibition of overhead wires. Well-known systems of electrical power exist which require no overhead wires, and it is to be presumed that when the . Legislature authorized a change to electrical power by a railroad it meant power applied in a way which would not contravene its established policy as to overhead wires.

The railroad company having" complied" with the provisions of section 100 of the Railroad Law, having obtained the consent of a majority of the owners of property upon the streets, and the change having been approved by the State Board of Railroad Com-:. missioners, and not conflicting with any recognized law of the State,' it became authorized-, by virtue of the express provisions . of , this section, to make any change in the construction of its road .or roadbed, or other property, rendered necessary by the change of its motive power. If a permit from either the commissioner of public works or the board of electrical control was necessary to enable it to . open the streets along its route for the prosecution of a work legally authorized,- those public authorities were bound to..issue such permit or permits, and this right to a permit would be enforced by mandamus.. This was expressly held by the Court of' Appeals in Matter of Petition of Third Ave. E. P. Co. (121 N. Y. 539). It was there held that,, under the provisions of chapter 531 of the Laws of 1889, which contain substantially the same provisions as section 100 of the Railroad Law, before cited, the Third Avenue Railroad Company was authorized to change its motive .power from horse to cable.-; and a mandamus was granted compelling the' commissioner of public works to issue a permit to thé railroad company to open the streets along the route of its road to introduce the cable system.

The same rule- applied in that case would- be applicable here; and an application were made to the board of electrical control for a permit and refused, the board could be compelled by mandamus to issue a permit, if such permit were necessary to ¿liable .the railroad companies to exercise the authority given to them by thé section of the Railroad Law before cited. Under such circumstances a court of equity would not be authorized to issue an injunction restraining the defendants from proceeding, ¿specially as it appears' that no wórk has yet been done, and it does not appear that the defendants; propose to enter upon the streets without such permit. .

"Without: passing upon -the other -questions presented or expressing any opinion, upon them, for the reasons before stated, we think the-order appealed from was clearly right, and it - should be-affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Rumsey, Patterson and Parker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  