
    William Jay Schieffelin, Respondent, v. George B. McClellan, as Mayor of the City of New York, and Others, Appellants.
    First Department,
    December 22, 1909.
    municipal corporations—granting franchise to street railroad—procedure ixf city of New York governed by charter.
    The procedure of the local authorities of the city of New York in granting a franchise for the use of the public streets by a street railroad corporation is governed by section 74 of the city charter rather than by section 92 of the Railroad Law, as the charter provision is later in date and covers the whole subject-matter.
    Where a special statute covers the whole subject-matter of a prior general statute, and, although not repugnant to the latter, embraces new and more specific provisions, it ¿will be held to be a substitute for the general act and repeals the same pro tanto.
    
    Although the board, of estimate and apportionment of the city of New York, assuming to act in accordance with section 92 of the Railroad Law in granting a franchise to a street railroad, gave the subject some consideration and expressed an approval of the application before ordering the publication of notices of a public hearing, pursuant to section 74 of the city charter, it did not thereby divest itself of jurisdiction to give the matter further consideration on the date set for the hearing.
    McLaughlin and Clabke, JJ., dissented, with opinion.
    Appeal by the defendants, George B. McClellan, as mayor, etc., and others, from an order of the Supreme Court, made at the Mew York Special Term and. entered in the office of the- clerk of the county of Mew York on the 11th day of December, 1909.
    
      Terence Farley, for the appellants.
    
      Julius Henry Gohen, for the respondent.
   Scott, J.

This is an appeal from an order enjoining the board of estimate and apportionment of the city of Mew York from proceeding further with the hearing upon, and from acting upon an application for certain changes and modifications to the contract heretofore entered into between the city of Mew York and the South Shore Traction Company. The only question we have to consider is whether or not the board may legally proceed to act, and whether they máy so legally proceed depends upon the question whether or not their acts are regulated by section 92 of the Railroad Law as well as by section 74 of the Greater New York charter, and if so regulated, ■ whether or not the provisions of thege apts have been complied with. The provisions of the Railroad Law read as follows: “ § 92. Consent of local authorities; how procured.—The application for the consent of the local authorities shall be in writing and before acting thereon such authorities shall give public notice thereof and of the time and place when it will' first be considered, which' notice shall be .published daily in any city for at least fourteen days in two of its daily newspapers, if there be two, if not, in one,. to be designated by the mayor'. - * * * Such consent must be upon the expressed condition that the provisions of this article pertinent thereto shall be complied with, and shall be filed in the office of the clerk of the county in which such railroad is located. Whenever the consent of the common-council of a "city is applied for, the first consideration, of which notice is hereby .required, may be by' committee of such common council. Any such notice, publication or consideration heretofore or here-' after given, made or had in substantial conformity with the requirements of this section, is and shall be sufficient notice, publication and consideration for all 'the. purposes hereof, notwithstanding any conflicting provision of any local or special act of charter.” (See Gen. Laws, chap. 39 [Laws of 1890, chap. 565], § 92, as amd. by Laws of 1893, chap. 434.)

The charter provisions as they now stand are as follows : “ § 74. Before any grant of the franchise or right to use any street, avenue, waterway, parkway, park, bridge, dock, wharf, highway or public ground or water within or belonging to the city shall be made by the board of estimate and apportionment, the proposed specific grant embodied in the form of a contract with all of the terms and conditions, including the provisions as to rates, fares and charges, and together with the form of the resolution or resolutions for the granting of the same, shall be' entered in the minutes, of the board of estimate and apportionment, and after such eñtry shall be published at least twenty days in the City Record and at least twice in two daily newspapers published in the city, to be désignated by the mayor, at the expense of the proposed grantee.. The board of estimate and apportionment shall, before authorizing any such contract or adopting any such resolution, set a date or dates for a public hearing thereon, at which citizens shall be entitled to appear and be heard. No such hearing shall be held, however, until notice thereof shall have been published for at least ten days immediately prior thereto in the City Record^ and at least twice in two daily newspapers published in the city, to be designated by the mayor, at the expense of the proposed grantee, and the said board of estimate and apportionment, before authorizing any such contract or adopting any such resolution, shall make inquiry as to the money value of the franchise or right proposed to be granted and the adequacy of the compensation proposed to be paid therefor, and publish the results of such inquiry at least ten days in the City Record and at least twice in the daily newspapers in which such form of contract shall be published. Every such contract or resolution shall be entered on the minutes or record of such board of estimate and apportionment, and every contract or resolution containing or making such grant shall require the concurrence of members of the board of estimate and apportionment entitled as provided by law to three-fourths of the total number of votes to which all the members of the said board shall be entitled, and the votes shall be shown by the ayes and noes as recorded in the minutes of the board. Thirty days at least shall intervene between the introduction and final passage of any such resolution or authorization of such contract. The separate and additional approval of the mayor shall be necessary to the validity of every such contract or resolution. This act shall apply to any renewal or extension of the grant or leasing of the property, to the same grantee or to others. Within five days after the adoption of any such resolution or any such authorization, a copy thereof, including the full text of the franchise, grant or contract, and duly attested by the clerk of the board of estimate and apportionment, shall be transmitted to each-of the following: The comptroller, the corporation counsel, the city clerk and the board of rapid transit railroad commissioners of The City of New York, to be preserved by them among the archives of their departments or office. All such certified copies shall be deemed to be public records.” (See Laws of 1901, chap. 466, § 74, as amd. by Laws of 1905, chaps. 629, 630.)

Here we have two acts providing liow the consent of the local authorities may be given to the -use of the public streets by a street railroad corporation, what notice of the application shall be given ■ and what public hearing shall be had;

The earlier one is a general act covering the whole State. The’. ■ other is a local and spécial act relating exclusively to the city of Hew York.

The one provides in general terms that before the local authorities act • upon such an application fourteen days’ notice shall be given of the time and place at which it will be first considered.; . Ho positive provision is made for a public hearing, which lias, to be read into the statute by implication. (Secor. v. Village of Pelham Manor, 6 App. Div. 236.) Ho directions are given us to the ’ form or contents of the notice,, that being left, wholly to the discretion of the public authorities. ■ .

The later, special act designed to effect the same result, to wit, notification to the- public of any proposed consent^ and an opportunity for a public hearing thereon, is much more stringent and. : specific. It requires that the proposed specific grant embodied in the form of a contract with all the terms and conditions, including ■the.provisions as to the rates, fares and charges together with the form of .resolution for the granting'of the same, shall be entered in. the minutes of the board of estimate and apportionment and pub- . ' fished at least twenty days in the City Record, and at least twice in . two daily newspapers.. The board is-then required to set a date or ’ dates for a public hearing thereon at which citizens shall be entitled • to appear and be heard. Of this meeting tgn days’ notice niusti be given by advertisement. ’ The board must make.inquiry as to the .money value of the franchise or right proposed to be granted and the adequacy of the compensation proposed to be paid therefor, the results must, fie published for" ten days,, and finally, to prevent anything approaching haste in the action of the board, it is "provided that at least thirty days must intervene between the introduction and the - final passage of any resolution authorizing such a "contract. .It is apparent that the charter provisions require as much, and indeed much more, in the way of preliminary notice, and opportunity to - citizens to learn of the. proposed: action and to intelligently discuss- ’. it than is required by the Railroad Law; It is unreasonable to assume that the Legislature intended that both procedures should be followed, especially in view of that clause of section 92 of the Railroad Law which provides that “ any such notice, publication or consideration heretofore or hereafter given, made or had in substantial conformity with the requirements of this section, is and shall be sufficient notice, publication and consideration for all the purposes hereof, notwithstanding any conflicting provision- of any local or special act or charter.”

It is a well-established rule of statutory construction that a later special statute which covers the whole subject-matter of an earlier general statute* and which, although not repugnant to the earlier statute, embraces new and more specific provisions, will be held to have been intended, within the scope of its operations, as a substitute for and a repeal pro tanto of the earlier genez'al act. (Heckmann v. Pinkney, 81 N. Y. 211; Excelsior Petroleum Co. v. Lacey, 63 id. 422; People v. Gold & Stock Tel. Co., 98 id. 67; New York Cable Co. v. Mayor, etc., of N. Y., 104 id. 1, 15.) In my opinion this rule is distinctly applicable to the acts under consideration, and as the preliminai-y acts of the defendants concededly follow the requirements of the charter, the injunction should not be continued.

Personally I should an'ive at the same result if I considered that both acts must be followed, for I.can see no basis for the claim that, in any event, proceedings must be carried to a conclusion under one act, before the preliminary steps may be taken under the other.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham and Houghton, JJ., concurred; McLaughlin and Clarke, JJ., dissented.

Ingraham, J. (concurring) :

I concur with Mi*. Justice Scott. To sustain this injunction the plaintiff m,ust bi'ing the official act which he seeks to enjoin within the provisions of section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29), which provides that “an action may be maintained * * * to prevent any illegal official act on the part of any such officers * * * or to prevent waste of injury to or to restore and make good any property, funds or estate of such * * ■■ municipal corporation.” . This action is. based upon the allegatign. that if the board of estimate and apportionment now entertain this application it would be committing an “ illegal official act.” The board of estimate and apportionment have proceeded as required by section 74: of the charter (Laws of 1901, chap. 466, as amd. by Laws of 19.05, chaps. 629, 630). They have also assumed to proceed according to the provisions of section 92 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1893, chap. 434), carrying on the proceedings under these two acts at the same time. The only ground upon which the plaintiff relies and upon which the court, below (hi. T. L. J. Dec. 10, 1909) has held that a further consideration of this application would be an illegal official act of the board of estimate and apportionment is that the board had to' some extent considered the application before the day fixed for a . public hearing under section 92 of the Railroad Law. I am inclined to agree with Mr. Justice Scott that the provisions .of the charter established a. substitute for and a repeal pro tatito of the - General Railroad Law; but I also think that the mere fact that the board had given to the subject some consideration-and had even- expressed an approval of the application was not such a violation of the provisions ' of the General Railroad Law as would make the act of the board illegal in further considering the .application. Here are two acts which substantially cover the same general subject. By both acts certain preliminary steps are required before the board can act. The board was required to give public notice of the time and place when the application would be first considered. If for any reason the board had omitted to give such public notice or the notice was not for sufficient time and the board, discovering its mistake, had caused a new notice to be given fixing a time and place as required by the statute, I do .not think the board .would be divested of jurisdiction to consider the application at the time and place named because it was not the first hearing or because at the first hearing the board had expressed an opinion as to whether or not the application should be granted. If such a mistake had been made'at the beginning óf the official term of the board of estimate and apportionment the result Vfould be, if this contention was sustained, that the subject could not be considered again during the official, term of the members of the board, but it would have to be postponed until a new board came into office. Whatever impropriety there may be, if there is any, in this proceeding as presented by the papers I cannot see that anything that had been done by the board took away from it its power to act upon the application after they had given the notice required by the Railroad Law and had proceeded as required by the charter.

I, therefore, concur in the reversal of the order.

Houghton and Scott, JJ., concurred.

McLaughlin, J. (dissenting):

I am unable to concur in the conclusion arrived at by the majority of the court for the following reasons : The board of estimate and apportionment met on the 12th of November, 1909, and assuming to act in accordance with section 92 of the Railroad Law fixed the tenth day of December following as the day when the petition of the traction company should be “ first considered and a public hearing be had thereon ” and directed the publication of notices accordingly. Had the board stopped here their proceedings would have been according to the provisions of the statute cited, but it did not because at the same meeting it heard the report of a committee previously appointed favoring the proposed modifications, and then passed a resolution approving of the same and referred the matter to the corporation, counsel for approval as to form to be reported by him at a meeting of the board to be held on the nineteenth of the same month. On the nineteenth the board again met and the corporation counsel’s approval having been received, a resolution was passed approving the proposed modified contract and authorized the mayor to execute and deliver the same on behalf of the city. Its publication was then directed to be made as'provided in section 74 of the charter and the twenty-third of December fixed as the day for the public hearing thereon.

The acts of the board thus taken did not comply with the letter or spirit of the provisions of the Railroad Law. Under that section the board was required before acting thereon ” to give at least fourteen days’ notice of the time and place when the petition would “first he considered.” A public hearing is impliedly required by the section (Secor v. Village of Pelham Manor, 6 App. Div. 236) to the end that any arid all persons interested may be heard on the subject-matter of the application before the board shall take any action whatever. The board of estimate and apportionment could not on the 12th of "November, 1909, lawfully consider the merits of the petition, approve the modification or approve a proposed modified contract. It could not do this until .thé hearing provided' for had been had. This, it seems to me, necessarily .follows from the provisions of section 92 of the Railroad Law (Laws of 1890, • chap. 565, as amd. by Laws of 1893, chap. 434) if that section be applicable. I. am of the opinion the section is applicable, and if this be correct, then it follows that ■ the acts of the board were unlawful and such unlawful acts cannot be made the basis of any valid action under section 74 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1905, chaps. 629, 630) and the publication of the proposed contract so approved would be of no effect.

But, although the board assumed to act in accordance with both sections, the order appealed from is to be reversed upon the ground that section 92 of the Railroad Law does riot- apply, since it was repealed pro tanto by section 74 of the charter and that the - action of the board is sanctioned by- that section. No óne, I take it, disputes the proposition that a general statute may tie repealed by a special one subsequently passed and inconsistent therewith, or entirely. covering the same subject-matter. But such’ repeals are not favored by the courts. • (Trust Company of America v. State Safe Deposit Co., 109 App. Div. 665; affd., 187 N. Y. 178; People ex rel. Brown v. Metz, 119 App. Div. 271; affd., 189 N. Y. 550; Matter of City of New York [Town. of Hempstead], 125 App. Div. 219; affd., 192 N. Y. 569.) If, on a reasonable construction,' the two acts are not inconsistent and may stand together, • -then the authorities are all to the effect that the general act is not repealed by the special act. (26 Am. & Eng. Ency. of Law [2d ed.], 743; Staats v. Hudson River R. R. Co., 3 Keyes, 196; People ex rel. Kingsland v. Palmer, 52 N. Y. 83; Hankins v. Mayor, 64 id. 18; Matter of Murray Hill Bank, 153 id. 199; Davis v. Supreme Lodge, Knights of Honor, 165 id. 159; Bush v. D., L. & W. R. R. Co., 166 id. 210.)

In Davis v. Supreme Lodge, Knights of Honor [supra), where the claim was made that a general law had been impliedly repealed by a special one, it was said“ There is no implication of a repeal of the prior law, unless the later act embraces the subject-matter of the earlier, or unless the reason for the earlier act is beyond peradventure removed. Therefore, every effort must be used to make all acts stand, and if by any reasonable construction they can be reconciled, the later act will not operate as a repeal of the earlier. * * * The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction as almost to establish the doctrine of no repeal by implication! . Where there is a difference in the whole purview of two statutes, apparently relating to the same subject, the former remains in force.”

As I read these two sections, there is no inconsistency between them; on the contrary, when considered together they present a harmonious scheme for the protection of the interests of the public in the granting of franchises. Under section 92 of the Eailroad Law the board of estimate and apportionment, when an application is presented for a franchise, must hold a public hearing before action upon the application. Under section 74 of the charter before the franchise can be granted, the proposed terms of the grant must be made public and a public hearing had thereon. This section does not purport to change the requirements of the Eailroad" Law; it merely imposes a further condition.

The prevailing opinions, it seems to me, proceed on an erroneous assumption that the object of the public hearing is the same in both cases and that since the- charter provision is more specific and a later special act, it entirely supersedes the section of the Eailroad Law in question. I do not so regard it. The purpose of the hearing required by the Eailroad Law is to give the public an opportunity to be heard on the question whether or not any franchise should be granted. The hearing under the charter is required only after the board of estimate and apportionment has acted in favor of granting a franchise in some form, audits purpose is to afford the public an opportunity of approving or disapproving of the terms upon which it is proposed to grant it. When an application for a franchise is made under the charter, the board may refuse absolutely to grant it, in the first'instance, and in that case there is no provision for a public hearing. It is not difficult to imagine that the public might in one case be interested in having a franchise granted just as much as it would in another case in having it refused, and under the Railroad Law they have a fight to be heard in either case, which right does not exist under section 74 of the charter. It is obvious that if the board may pass a resolution favoring an application without a public hearing thereon, it may also deny an application in toto without a public hearing. If it is unnecessary, to hold a public hearing in the one case, it is equally so in the other.

I am of the opinion that the Legislature did. not intend, by the enactment of section 74 of the charter, to repeal' section 92 of the Railroad Law, and if this be true, then it would seem necessarily to. follow that the board was proceeding in an illegal way, and if so, the action can be maintained. (Ziegler v. Chapin, 126 N. Y. 342; Rogers v. Board of Supervisors, 77 App. Div. 501; Queens County Water Co. v. Monroe, 83 id. 105.)

The order should be affirmed.

Clarke, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  