
    In the Matter of the Application of The Brooklyn Elevated Railroad Company to Acquire Possession of Real Estate of Charles U. Wing.
    
      (Court of Appeals,
    
    
      Filed February 6, 1891.)
    
    1. Railroads—Forfeiture of charter,
    By 112, of chap. 585, Laws 1874, the company to whose rights the petitioner succeeded was required 1o commence the construction of its road within two years and complete it in three years thereafter, and “ failing therein shall forfeit the rights acquired by them under this act.” The time to complete was extended until 1883, hut the road was not completed until l'85. Held, that the default would not of itself divest the company of its franchise, but that a judicial determination was necessary for that purpose.
    2. Same.
    Said act provided that iron columns should be placed on each side of the street “ in a line with the curbstones,” and iron girders “ placed across the streets and avenues and tobe properly attached to the tops of such columns.” In 1875 it was amended so as to require the columns to be placed on each side of the street “ as near as practicable on a line parallel. with the curbstones,” the girders to be placed “above” the streets. Held, that the columns should be placed as near as practicable on the sides of the street, but parallel with the curbs.
    AppÍíal from a judgment of the supreme court, general term, second department, affirming an order appointing commissioners-of appraisal.
    
      Edward M. Shepard, for app’lt; George Hoadley, for resp’t.
   Earl, J.

This is a proceeding under the provisions of the-general railroad 'act to acquire real estate interests in Grand avenue in the city of Brooklyn froni Qharles U. Wing for the purposes of the Brobklyri Elevated Railroad. Issue was' taken upon, the allegations of the petition, and the matter was brought to a. hearing before a justice of the supreme court, who, after hearing the evidence, made findings of fact and of law, holding that the-petitioner had made a case for the appointment of Commissioners to ascertain and appraise the compensation to be paid to Wing-for his real estate interests taken, and an order was made and. entered appointing such commissioners. From that order Wing-appealed to the general term and then to this court.

The Brooklyn Elevated Railroad Company derives its corporate-life from the following acts of the legislature, Chap. 585 of the-Laws of 1874, chap. 422 of the Laws of 1875, chap. 350 of the-Laws of 1879, chap. 459 of the Laws of 1880, chap. 338 of the-Laws of 1881, and chap. 539 of the Laws of 1885, and its road was built through Grand avenue and in operation there at the time when this proceeding was instituted. The acts required that the road should be commenced and completed within times specifiéd, and in default thereof that it should “ forfeit the rights-acquired by ” it under the acts. We will assume that it did not-commence or complete its road within the time specified, and yet we reach the conclusion that the .claim of Wing that it had lost, its corporate existence and its “ rights acquired ” under the acts, is unfounded. What is,meant by “rights acquired” under the acts? We answer, all its rights, including its right to be a corporation. It could not, Within the meaning of the act, forfeit all. its rights and still be a corporation. A corporation without, rights, without legal capacity to do anything, not even to acquire rights, is inconceivable.

What was plainly meant is that the corporation should, m the event mentioned, forfeit its charter, and that included. all the rights acquired by it under the acts from which it derived corporate existence; and thus the legislative meaning is the same as if the language used had been “ forfeit its charter,” or its “ chartered rights.” For the non-performance of conditions specified, such language has never been held ex proprio vigore to put an end to corporate life. By such non-performance a corporation is not ipso factodissolved or deprived of its corporate existence or corporate rights, but it is simply exposed to proceedings on behalf of the state to establish and^enforcej^hAlforfeiture. The, state which gave the corporate Jife^may'^ake^lit^áwáy^ TmVstate which ^imposed the conditiolis'may;.waive'thenv*pei’iormance,’and: the corporate life may run on until the state by proper proceeding intervenes and enforces the forfeiture. Until the state does thus intervene, a private individual cannot set up the forfeiture or in any way challenge the corporate existence with its full vitality. The authorities for these views are numerous and uniform both in this country and England. State of Louisiana ex rel. Atty. General v. Fagan, 22 La. Ann., 545; Bank of Niagara v. Johnson, 8 Wend., 645; People v. The Pres. & Directors of the Manhattan Co., 9 id., 351; In the Matter of the New York Elevated R. R. Co., 70 N. Y, 327; In the Matter of the Kings Co. Elevated R. R. Co., 105 id., 97; 7 N. Y. State Rep., 186; Day v. Ogdensburgh & Lake Champlain R. R. Co., 107 N. Y., 129; 11 N. Y. State Rep., 335; Moore v. Brooklyn City R. R. Co., 108 N. Y., 98; 13 N. Y. State Rep., 97; Farnsworth v. The Minnesota & Pacific R. R. Co., 92 U. S., 49; Van Wyck v. Knevals, 106 id., 360.

Our attention has been called to many cases arising under the revenue laws of our country which provide for forfeiture of goods on account of offenses against such laws, wherein, as claimed, it was held that the forfeiture of title in such cases takes effect from the commission of the offense without legal proceedings. Those cases and others involving violations of the police laws stand upon a peculiar policy, and in any event they are not authority in the case now here. The learned counsel for the appellant with all his industry has not been able to find a single case involving the forfeiture of corporate rights and franchises wherein such language as we have here has been held sufficient to work out a self executing forfeiture without the intervention of the courts or the legislative power.

The general rule established by the authorities above cited was fully recognized in Matter of Brooklyn, W. & N. R. R. Co., 72 N. Y., 245; S. C., 75 id., 335, and in Brooklyn Steam Transit Co. v. City of Brooklyn, 78 id, 524. For the non-performance of conditions specified in the former case, it was provided that “ the corporate existence and powers shall cease,” and in the latter case that “ this act and all the powers, rights and franchises herein and hereby granted shall be deemed forfeited and terminated” We held that this clear and emphatic language indicated a legislative intent that the corporate life should for the defaults mentioned come to an end, and not merely be exposed to forfeiture by proceedings on behalf of the state. These decisions we think stand well upon reason. But they are border cases, and the doctrine laid down in them should not be applied to cases where the legislative intent of a self-executing forfeiture is not equally plain. An undue extension of the doctrine would imperil the vested rights of individuals and in many cases might prejudice the interest of the public.

We have found but one similar decision, that made in Oakland Railroad Co. v. Oakland, Brooklyn & Fruit Vale Railroad Co., 45 Cal., 365, where the language to be construed was, “ shall utterly cease and be forfeited.” Similar language was held not to provide for ipso facto forfeiture in Chesapeake & Ohio Canal Co. v. Baltimore & Ohio R. R. Co., 4 Gill & Johnson, 1; Briggs v. Cape Cod Ship Canal Co., 137 Mass., 71, and Wallamet Fall Co. v. Kittridge, 5 Sawyer, 44.

It was provided in § 10 of the act of 1874, in which the life of the Brooklyn Elevated R. R. Co. originated, that the corporation thereby created should possess all the rights, powers and privileges, and be subject to all the provisions of the general railroad act of 1850, and the several acts amendatory thereof, “ except as far as the provisions of said acts and amendments are modified by or are inconsistent with the.provisions of this act." Among such amendatory acts is the act, chap. 775 of the Laws of 1867, in which it is provided that, “ if any such corporation formed under the general act shall not within five years after its articles of association are filed and- recorded begin the construction of its road and expend thereon ten per cent, of the amount of its capital, or shall not finish its road and put it in ojjeration in ten years from the time of filing its articles of association as aforesaid, its corporate existence andpowers shall cease."

In the Matter of the Brooklyn, Winfield & Newtown Railway Co., we held that the language of this act, which we have italicised, provides for a self-executing forfeiture, and, if, therefore, as claimed by the learned counsel for Wing, the provision quoted is made applicable to this corporation, his contention that it has lost its corporate existence and its right to institute this proceeding is well founded. But the provision of the general railroad act is inconsistent with that contained in the act of 1874, and as to this corporation is modified by that act, which provides a particular time for the commencement and completion of the road authorized thereby, and the consequence of a failure to perform the conditions. The whole subject is provided for by that act and the other acts relating to this corporation, and hence there is no room for the operation of the provisions of the act of 1867, above quoted, and it can have no application to this road.

We have, therefore, reached the conclusion that this corporation has not lost its corporate existence or its right to institute this proceeding. We have assumed as sufficient for the present purpose that the corporation did not commence or complete its road within the times required, and have not, therefore, deemed it important to consider the able argument submitted on behalf of the corporation to show that it did comply with the conditions specified, and also to show ratification of its corporate rights by the recognition on the part of the legislature of its full corporate existence.

This railroad was constructed in Grand avenue upon two rows of iron columns, placed upon foundations which are eight feet and four inches apart, and eight feet and eight inches from the curb on each sideband which -thus divide the avenue into three spaces substantially equal. It is for a road thus constructed that the corporation in this proceeding seeks to condemn the real estate interests of Wing. He claims that the road is illegally and improperly constructed, and that the corporation cannot take his interests in the avenue for such a structure.

Section 5 of the act of 1874 provides that “ the said elevated railway shall be constructed as follows, namely, iron columns shall be placed on each side of the street, avenue or roadway in a line with the curb stones; said columns to be firmly bolted to concrete foundations of suitable size and shape to insure perfect firmness in all cases; said foundations and the location of them to be subject to the approval of the chief engineer of the board of city works of the city of Brooklyn. * * * Iron girders not more than thirty-six feet in length shall be placed across the streets and avenues and to be properly attached to the tops of such columns.” What kind of a structure did this authorize ? It did not require that the columns should be placed in or on the curbs, because the girders could not be more than thirty-six feet long and some of the streets were wider than that between the curbs. They were required to be placed on the sides of the streets, not necessarily in the curbs but on a line with them and thus necessarily parallel with them; and that they might be placed so as to do the least injury and cause the least inconvenience and obstruction, their location was subject to the approval of the engineer. This section was amended by chap. 422 of the Laws of 1875, so as to read as follows : “ The said elevated railway shall be constructed as follows : Iron columns shall be placed on each side of the streets, auenues and roadways, as near as practicable on a line parallel with the curb stones, said columns to be firmly bolted to concrete foundations of suitable size and shape to secure perfect firmness in all cases, subject to the approval of the chief engineer. * * Iron girders shall be placed above the streets and avenues and be properly attached to the tops of such column^.”

This amended section did not restrict the powers of this corporation, for thereafter it could build precisely such a structure as it was before authorized to build, but its powers were enlarged. Instead of using transverse girders it could, at its option, use longitudinal girders. Where were the columns to be placed? The claim of the learned counsel for Wing is that they were still required to be placed on the sides of the street, but as near as practicable on a line parallel with the curbs. We have no light for the construction of the amended section except that furnished by the language thereof as well as by the language of the section prior to its amendment. We think the comma after the word “roadways” should be placed after the word “practicable,” and thus the requirement is that the columns should be placed as near as practicable on the sides of the streets, but parallel with the curbs. If the amendment was simply for the purpose of requiring the columns to be placed as near as practicable parallel with the curbs it was unnecessary as the unamended section required that. Before, the columns were required absolutely to be placed on the sides of the streets, and we think the plain, purpose of the amendment was to alter this rigid requirement and to authorize the columns to be placed as near as practicable to the sides of the streets. The person who drafted the amended section evidently intended to provide for a case where the rows of columns might be placed near to each other and at some distance from the curbs, as the section was so amended as to allow longitudinal girders. We may suppose, in the absence of any'proof on the subject, that if the columns were placed near the curbs, transverse girders spanning the streets would be needed to uphold the structure. But if the columns were placed near to each other, transverse girders would not be needed, or even as appropriate as longitudinal girders. Under the amended section, as before, the location of the columns and the foundations thereof were to be subject to the approval of the, engineer, and in this the public as well as the abutting owners were expected to have all reasonable and practical protection. In thus construing this section we are obliged to transpose a comma, but in so doing we violate no canon of construction as we think the legislative sense requires it, and such liberty with punctuation is frequently taken by the courts.

In Gyger’s Estate, 65 Penn., 311, Sharswood, J., said: “There is no punctuation in a statute which ought to rule; ” and in Cushing v. Worrick, 9 Gray, 382, the court said: “ The general rule is that punctuation is no part of a statute.” See, also Hamilton v. Steamboat Hamilton, 16 Ohio St., 428.

There was evidence tending to show that these columns were placed, as nearly as practicable, on the sides of the streets, and we see no occasion to interfere with the finding of the court below upon such evidence. The corporation, subject to the approval of the engineer, was clothed with some discretion as to the location of the columns, and with the reasonable exercise of that discretion no court should interfere. Railroad Co. v. Stoddard, 6 Minn., 150; Fall River Iron Works Co. v. Railroad Co., 5 Allen, 221; Boston & Providence R. R. Cor. v. Midland R. R. Co., 1 Gray, 341; Parke’s Appeal, 64 Penn. St., 137.

It does not. appear that the public authorities object to the loca- • tion of those columns, or that Wing made any objection until after they were located and the road was in operation. The only interests he appears to have in the street which are peculiar to him, and for which he can have any protection or' compensation, are his easements of. light, air and access; and it is very clear that these easements are less interfered with than they would be if the columns on his side of the street had been placed nearer to the curb. Under all the circumstances, therefore, we think it is but fair and just that both the law and the facts should, as to the location of the columns, be liberally construed in favor of the corporation, and we must hold that their location is not unlawful.

Other points are argued in the briefs submitted on behalf of Wing. They are of a technical nature, not relating to the merits of the controversy between these parties, and we leave them upon the findings of the court below, believing that they do not point out any error, and that they require no further notice.

The order should be affirmed, with costs.

All concur. 
      
       Affirming 32 N. Y. State Rep., 1065.
     