
    The People of the State of New York ex rel. The City of Geneva, Respondent, v. The Geneva, Waterloo, Seneca Falls and Cayuga Lake Traction Company, Appellant.
    Fourth Department,
    May 2, 1906.
    Municipal corporation — municipality may require street railway to change its tracks when necessary for street improvements — constitutional law— franchise held subject to police power. .
    A street surface railroad, which has laid tracks in a city street under a franchise • granted by the municipality and according to a resolution of the municipal • authorities locating said tracks, may thereafter be compelled by the municipal authorities having statutory power to alter and improve streets and to require street railways to change the line of tracks, to remove said tracks and alter the grade thereof as made necessary by proposed municipal improvements in paving and grading‘the'street.
    Any contract rights acquired by such railway company under a municipal franchise are subject to the police power-of the municipality, and the obligations of such a contract are not impaired within the meaning of the Constitution by requiring the company to alter its tracks as aforesaid.
    When a municipal hoard of public-works has statutory jurisdiction over street improvements, etc,, its discretion exercised pursuant to statute in changing ' the grade of streets is not subject to judicial review.
    Appeal by the défendant, The Geneva, Waterloo, Seneca Falls and Cayuga Lake Tractiqn Company, from an order of the Supreme Court, made at the Pntario Special Term and entered in the office of the clerk of the county of Ontario on the 23d day of January,. 1906, granting the relator’s motion for a peremptory writ of. mandamus directing the defendant to remove its railroad track from its present location on the north side of East North street in the city of Geneva, N. Y., practically to the center of said street, and to change the line and grade of. its railroad in said street as required hy the board of public works of said city and in accordance with plans adopted by said board.
    The proceeding was commenced on the 24th day of July, 1905, by the service of notice of motion and accompanying affidavits, retnrriable on the 3lst "day of July, T905, but was not heard until the 9th.day of September, 1905, when the motion was argned upon the moving papers and opposing affidavits presented by the defendant, and the motion was submitted .to the court ‘on that day. As appears by the order appealed from, the absence of consents of abutting owners on the south side of North street, was urged as a defense * to the motion, and counsel for the relator .thereupon.offered to procure and furnish to'the defendant such consents. It is recited that such consents were duly procured and served upon the defendant on the 20th day of January, 1906, and an affidavit by relator’s attoiv ney was submitted to the court on the. 22d day of ’January, 1906, stating that they had been so served. Thereupon and on the same day the order appealed from-was made, and entered on the following day:
    
      Charles A. Hawley and Lansing G. Hoskins, for the appellant.
    
      W. Smith O'Brien for the respondent.
   McLennan, P. J.:

It is alleged in the moving affidavits in substance:

That the relator is a municipal corporation created under, and by virtufe of chapter 360 of the Laws of 1897 arid the acts amendatory thereof; that by title 5 of said act a department of public works was created in and for said bity of Geneva, .composed of five commissioners constituting the board of public works of said city, and vested with “the charge, management, control and maintenance of the streets and bridges within the corporate limits’ of said; city, including thé right to repair, grade, pave, improve and establish the grade line of the same; ” that the defendant is- a street surface rfcilroad corporation and since 1895 has been the' owner of and engaged in operating a. street surface railroad upon certain streets in said city, among others, upon-North street, for a distance of upwards Of 4,000 feet, its tracks being located on the northerly side of said street; that on the 23d day of March, 1905, at a regular meeting, the board of public works, by the adoption of a proper resolution, determined to pave and iinprov.e North street at ah estimated cost of $48,000, in accordance with plans and specifications showing the grade,' location and lines, of such pavement. Thereafter, and on the 25th day of May,. 1905, by suitable resolution, the board determined that in order to pave and improve-North street in accordance with its previous determination it would be necessary for the defendant to change the grade’.and line of. its tracks, and it was directed and required to remove its tracks from the side of North street-and place them in the center of the space determined to be paved by, the relator’s board of public works; that snch resolution was served upon the defendant, and it refused and still refuses to comply with the same.

It is alleged: “ That in order to complete said improvement it will be necessary to materially change the grade of said street, and, as has been determined by said board, it will also.be necessary to change the location of the tracks of said street surface railroad. That the tracks of said railroad as now located are between the center and north line of said street, and at different points in said street the whole or some portion of the roadbed of said street railroad as now located is south of the line of the north curb of said pavement as said pavement is proposed to be constructed. * * * That before said street can be paved it will be necessary that the work of changing the location of said tracks be performed' in whole or in part, and it is not possible for the board of public works of said city to pave and improve said street as proposed or perform any considerable part of such work until the location of said street railroad tracks .shall have been changed as directed by said board.” It is also alleged that the owners of property abutting on said North street, by way of: preparing for said proposed improvement, have at large expense, made excavations in said street and put in lateral connections to sewer and water'mains in said'street, resulting in making the surface of said street irregular and uneven, so that it is important to the interest of the public and residents of said street that the work of paving and improving the same be done as soon as possible.” '

The moving papers contain other allegations, the details of which need not be recited, but are to .the effect that the defendant’s rights in the premises are dependent upon certain franchises given to or agreements made with it or its predecessors by the relator or its predecessor, the village of Geneva, all of which, however, it is claimed, -are subject to any and all reasonable regulations and modifications which might thereafter be prescribed by the Legislature of the State or by the municipality under authority delegated to it. That among the powers so reseryed by the Legislature and delegated by it to the relator are the following, as expressed in section 65 of the charter of said city (as amd. by Laws of;1905, chap. 462): “If any street, section of a street,.public place or square, iirwhich a street surface railroad is now or shall be hereafter operated, shall be paved, repaired or macadamized, or any Such street straightened, widened or altered, the hoard of public works, shall have power to require .the railroad corporation operating such street surface railroad to chánge its grade and line to conform to such alteration or improvement -in -such manner as said board shall designate,' and the corporation operating such street surface railroad shall, at its- own expense, change its line and grade to conform to such direction as the hoard of public works may make. Hothing herein contained shall be held to relieve any such railroad corporation from paying its share of the cost of such improvements,, as provided by this act.”

.The' opposing affidavits do not in any manner controvert the maténal facts stated in the .moving papers, viz.: That the relator has determined..to pave and improve Horth street, and for that pun' pose has changed the grade and line 'of the portion of the street to be paved ;■ that the line so established is interfered with by the tracks of the defendant as at present located. If is net claimed thattlie determination of the relator’s hoard of public works to make the change and improvement in question was not made in good faith, but it is claimed .by the defendant that such determination is unwise and ill-advised, because, as alleged, defendant’s- railroad can be operated on the northerly side of said street practically as now located with less .inconvenience and greater safety to the public than in the center of the paved portion of such, street,’, and that said street can he payed with equal advantage to the relator and to.the public without materially interfering with- the railroad tracks of the defendant; .that the proposed change of its tracks will necessitate an^expenditure of practically $20,000 on the part of the defendant, which,, it is alleged, is unnecessary, and will result in serious injury to the property rights and interests of the defendant.

We consider that the statements contained in the moving and opposing affidavits .do not raise a material issue of faqt. 'We, tliere^ fore, need-only inquire, whether the relator, -as matter of law, had the power .or authority .to compel the defendant to chauge .the grade and line of its trucks as required by its -board of public works and in accordance with, the resolution adverted to; Such power and authority is given to the relator in express language by section 65 of its charter above quoted, and unless-its provisions contravene the .Constitution of the State or of the United States, the discretion of the board of public works of the relator, assumed to be exercised pursuant thereto, is not subject to review by this court.

We will assume the fact to be as claimed by the defendant, that its right to construct, maintain and operate a street surface railroad in North street in the city of Geneva, N. Y., was acquired under and by virtue of a franchise granted by the board of trustees of the village of Geneva, relator’s predecessor, to the Geneva and Waterloo Railway'Company, defendant’s predecessor in interest, on the 16th day of May, 1893, and a contract made as required thereby, dated May 17, 1893, and a resolution of such board of trustees fixingtlie location of the tracks of said railroad upon such street, which were constructed in accordance therewith; that such proceeding constituted a contract binding alike upon the relator and the defendant, under which the defendant acquired a property right (People v. O'Brien, 111 N. Y. 1), and, that such contract or grant is within the protection of the' provision of the Constitution of the United States which prohibits the impairment of the obligation of contracts. The defendant accepted the grant to it from the relator, proceeded in good faith and according to the terms of its charter to exercise the right and enjoy the privileges thereby conferred, and there was no reservation of the right to revoke or recall the privileges so granted to it, and it is beyond dispute that to make the change in the grade and line of its railroad, as required by the relator, will cause inconvenience and great expense to the defendant.

But giving full recognition to the above facts and to the provision of the Constitution of the United States which prevents the impairment of the obligation of contracts, we think it was entirely competent for the relator to compel the defendant to change the grade and line of its railroad so as to conform to the grade and line of the street determined by the relator to be paved, and as required by it. '

Concededly under its charter the relator had -the right, through its board of public works, to improve, and for that purpose to change and. establish, the grade line of any street, and by section 65 of its charter (as amd. supra), it is specifically authorized to compel a street surface railroad occupying a 'portion of any street to change its-grade or location to conform to the grade of alteration determined upon by said board.; And it is evident from the facts, disclosed by the record that the improvement contemplated by the relator cannot be made unless the defendant complies with the writ granted herein.

By the grant given to the defendant or the contract made by it, the municipality could not diyest itself of the right to make .such reasonable changes in the grade and line of its streets as, were needful and necessary in order to protect and promote the interests of the traveling public therein. That was á governmental power, inherent in the Legislature, and in this case delegated by it to the municipality. As stated by Mr. Elliott in his work on -Roads and. Streets (2d ed. § 742) : “Ño contract can be made which assumes to surrender or alienate a:strictly governmental power which is required to continue in existence for the welfare of the public.' This is especially'time of the police power, for it is incapable of alienation. It cannot be doubted that a company which secures a right to use th¿streets of a. municipal cqrporation takes it subject to the police power resident in 'the State as an inalienable attribute of sovereignty.”- v

Giving full recognition to the principle contended, for by the appellant, that the franchise which-it obtained from the relator constituted a contract which was under the protection of the provisions of the Constitution of the United States, we consider it well settled by authority-that such contract was accepted by defendant subject to the police power of the municipality to regulate the manner in which it. should use the streets of such municipality." (Davis v. Mayor, etc., of New York, 14 N. Y. 506 ; Davis v. Read, 65 id. 566.)

In Indianapolis & Cin. R. R. Co. v. State ex rel. City of Lawrenceburg (37 Ind. 489) it was held that a railroad company, might be compelled to adjust the grade of its tracks to correspond to -the grade of intersecting streets of a municipality.

Mr. Elliott (supra, § 75) states the rule to be that the railroad acquires its rights “ subject to the higher and dominant right of public necessity, and whenever public safety or necessity requires- a-change in the grade óf a turnpike at points where it crosses the streets of a-city or town the company must make It.. This is substantially the rule with respect to railroads, '* * .

In People ex rel. Kimball v. Boston & Albany R. R. Co. (70 N. Y. 569) the court said, per Eabl, J.: “ Railroad corporations hold their property and exercise their functions for the public benefit, and they are, therefore, subject to legislative control. The Legislature which has created them may regulate the mode in which they shall transact their business, the price which they shall charge for the transportation of freight and passengers, the speed at which they may run their trains and the way in which they may cross or run upon highways and turnpikes used for public travel. It may make all such regulations as are appropriate to protect the lives of persons carried upon railroads, or passing upon highways crossed by railroads. All this is within the domain of legislative power, although the power to alter and amend the charters of such corporations has not been reserved.”

The right contended for by the respondent in this case to compel the defendant to change the location of its tracks is not different in principle from an act requiring a corporation to remove wires from poles overhead and place them in conduits under the surface of. the ground; yet such act’s have been held to be constitutional. (People ex rel. New York Electric Lines Co. v. Squire, 107 N. Y. 593.)

The same principle is involved in the acts of the Legislature requiring railroad companies to abolish grade crossings, which' acts have also been held to be constitutional.

The precise question involved in the case at bar was decided adversely to appellant’s contention in West Philadelphia Passenger Ry. Co. v. City of Philadelphia (10 Phila. 70), where it was held that a street railway might be compelled by the municipality to change the track of its railway from one part of the street to another. (See, also, Binninger v. City of New York, 177 N. Y. 199 ; Village of Mechanieville v. S. & M. St. R. Co., 35 Misc. Rep. 513; 67 App. Div. 628; 174 N. Y. 507.)

We think the cases cited are authority for the proposition that the constitutional provision forbidding the impairment of the obligation of contracts was in no sense violated by requiring the defendant to change the grade and line of its tracks in North street to conform to the grade and line of such street as established by the relator’s board of public works. x

We also think it is well settled that mandamus was the proper remedy by which to enforce the performance of such duty by the railroad company. (Bayard v. U. S., 127 U. S. 246 ; People ex rel. Third Ave. R. R. Co. v. Newton, 112 N. Y. 399.)

Mandamus has been held to be the proper remedy to compel a railroad to build a fence on each side of its road (People ex rel. Garbutt v. Rochester & S. L. R. R. Co., 76 N. Y. 294); to compel a railroad to build a bridge (People ex rel. Kimball v. Boston & Albany R. R. Co. (supra); to compel a railroad to grade its tracks so as to make crossings convenient and useful (People ex rel. Green v. Dutchess & C. R. R. Co., 58 N. Y. 152), and many other cases of like character might be cited.

The proposition' is intolerable that a street surface railroad cbm'pány or other corporation which may be given a license to occupy the streets of a municipality in a particular manner may not be compelléd, when the conditions and locality change, when public convenience and necessity require, to make such changes in its grade or line as the public necessity may demand. Any other rulé would make it possible for a railroad company to forever prevent improvements and development in a particular section of the municipality ; would make it the arbiter as to what might or ought tb be done for the improvement or benefit of any particular locality.

Notwithstanding the learned counsel for the appellant árgues with great earnestness the proposition that by the proposed action of the relator the rights of his client are being seriously impaired, and that the provisions of the Constitution of the United States in that regard are being violated, we .think there is absolutely nothing new or novel in the proposition; but that by an unbroken line of decisions extending over a period of nearly a century it has been held that under just Such circumstances a corporation authorized tb occupy a street of a municipality may be compelled to change its grade and location and the manner of its use, if necessary, to meet the new conditions and requirements of the locality.

We think the order appealed from is right, and that it should be affirmed, with costs. , '

All concurred.

Order affirmed, with costs. 
      
       See U. S. Const. art. 1, § 10, subd. 1.— [Rep.
     