I agree with Judge GRAY. The reversal of this judgment is a great injustice to the city of New York.
I find it impossible to read the Rapid Transit Act of 1875, in the light of the proceedings which have taken place under it, without coming to the conclusion that its object was not only to circumvent the Constitution, under the guise of a general law, which prohibits the legislature from passing a private or local bill granting to any corporation, association or individual the right to lay down railroad tracks, and that its further design was to secure to existing corporations, by indirection, franchises of vast value. It is urged in the prevailing opinion that it is impossible that the legislature meant to discriminate in favor of or against any road coming under the act. This suggestion springs from the fact that the Metropolitan or Sixth Avenue line is not subject to the tax of five per cent. The answer is that the legislature when it enacted the thirty-sixth section of the Rapid Transit Act presumably supposed it was dealing with the subject of allowing an existing corporation to connect its line with railway depots and ferries, and so it declared that said corporation might construct such connection with all the rights and with like effect as though the same had been a part of the original route of such railway. Had the New York Elevated Railroad Company, in pursuance of this authority and under a reasonable construction *Page 58 of the statute, built spurs or branches to various ferries and depots, the said thirty-sixth section contemplated that its increased earnings would be subject to the five per cent tax precisely the same as if such connections had been a part of the original route. It certainly was not within the contemplation of the legislature that the brief and general phraseology of this thirty-sixth section would confer upon the New York Elevated Railroad Company the right to construct an elevated railway system from South ferry through the Bowery and Third avenue to Harlem, running blocks away from depots and ferries, embracing one of the most valuable franchises on Manhattan Island, and being in fact an independent line on the east side of the city. It is inconceivable, if such had been the legislative intent, that apt language would not have been employed in dealing with a matter of such paramount importance. The New York Elevated Railroad Company having, however, secured the right to construct and operate the Third Avenue line, as a connecting route to depots and ferries, under a strained and unnatural construction of the thirty-sixth section of the Rapid Transit Act, it follows that the company and its successors in interest are estopped from denying that such connecting route is a part of the original route of its railway. This being so it follows that the net earnings of the Third Avenue line are just as much subject to the five per cent tax as those of the Ninth Avenue line.
There is every reason why this tax should be paid; there has been waiver on the part of the company by years of payment of the tax; there has been a practical construction of the statute in favor of the city's claim; and lastly the fair and reasonable reading of the thirty-sixth section of the Rapid Transit Act of 1875 requires it.
The judgment appealed from should be affirmed.
All concur with PECKHAM, J., except GRAY and BARTLETT, JJ., who read for affirmance, and ANDREWS, Ch. J., who concurs with them.
Judgment reversed. *Page 59