The question involved is as to the legality of the existence of railroad tracks and switches placed across a highway by the defendant without prior compliance with any of the legal requirements of the law at the time of such pre-emption. Certain of these formalities have since been complied with or *Page 289 claimed to be eliminated from the statutes by subsequent enactment. This is a case where strict construction of the law should be applied against the party who has been guilty of initial disregard of the law.
Judge BARTLETT correctly characterized this defendant and its conduct when he said: "The defendant proceeded without warrant of law, and its structure was a public nuisance in the highway." (People ex rel. Bacon v. No. Central Ry. Co., 164 N.Y. 289,299.)
As long ago as 1907 the highway involved was planned by a resolution of the board of supervisors of Albany county. It appears on a map of highways of the state prepared by the state engineer and approved by the legislature in 1907. In March, 1911, a contract was made with a contractor for the improvement of the highway for a distance of six and forty one-hundredths miles and under this contract improvements were completed to a point about two hundred feet west of the railroad. Stakes indicating the grade of the highway were placed along this remaining two hundred feet and the portion not improved practically covered and included what is now the main line of the Delaware and Hudson Company and the switch tracks referred to hereafter.
When the contractor began his work, only two main track lines of the Delaware and Hudson Company were in existence at this point. These had been there for many years. After the work on the contract was under way, the railroad company erected five switch lines. This was done without any authority from any public body or official and without any knowledge or consent on the part of the state or its employees. It was done in a hurry within three or four days, just as the contractor was about to improve the highway crossed. After that had been done, the highway contractor ceased work until the question of the right of the defendant to build and maintain these tracks was determined, and the state, *Page 290 in order to regularly terminate its liability to the contractor, canceled the contract for the uncompleted portion of the road covering the tracks in question.
At the time of the laying out of the highway and at the time of the construction of the switch tracks, section 146 of the Highway Law, chapter 379 of the Laws of 1902, provided that no street surface railroad shall be constructed upon a portion of a highway which portion has been or may hereafter be improved except "upon the approval of," etc., the state engineer and surveyor.
After several immaterial amendments, this law was amended by chapter 646 of the Laws of 1911, by extending its application to all railroads and finally, by chapter 80 of the Laws of 1913, the section was again amended to read as it does now, the principal change being the omission of the words "upon the approval of," retaining, however, in the statute the requirement that no railroad should be constructed across an improved highway "except upon such conditions and regulations as may be prescribed by the commissioner of highways." While the words "approval of the erection" were omitted, yet it was essential to have some action by the highway commissioner. This amendment to the law was adopted after the pre-emption had been made of the highway by the defendant, but before this action was commenced.
On January 12, 1912, some time after the tracks and switches were laid, the railroad company obtained permission from a justice of the Supreme Court to construct the switch tracks in question, the town superintendent of highways also consenting thereto. This permission was granted pursuant to the provisions of section 21 of the Railroad Law.
On June 30, 1914, after the tracks had been in use for years, upon the application of the defendant under section 53 of the Public Service Commissions Law, an order was made by the public service commission of the second district which recites that a petition had been *Page 291 presented by the defendant "for permission to construct certain switch tracks across the Shaker Road," etc., and to exercise such franchise under section 53 of the Public Service Commissions Law, and that such tracks having been constructed prior to the entry of any permissive order by this Commission, and a petition having subsequently been made on behalf of the town of Colonie to compel the removal of the same, unless the defendant should construct an overhead crossing, the two proceedings having been treated, for the purposes of hearings as one, and the defendant stating that, upon the granting of the consent applied for, it would, within sixty days, make application under section 91 of the Railroad Law for the elimination of the existing grade crossing and for the change of same to a crossing above grade, and that the public service commission might apportion the expense of such overhead crossing, and that the railroad company might be required to pay the entire expense apportioned to such switch tracks. The order then stated that, It appears to the Commission that, in taking this position with respect to the manner in which an overhead crossing shall be paid for and in agreeing to diligently prosecute the necessary proceedings for the elimination of the existing grade crossing, the defendant is entitled to the granting of its petition, which said order, however, shall beconditioned upon the carrying out by the defendant of the terms and conditions in its declaration of intention, and then ordered that the petition of the defendant "for leave to constructcertain switch tracks across the above mentioned highways and toexercise such franchise under section 53 of the Public ServiceCommissions Law" be granted. "This order, however, not to take effect until sixty (60) days from the granting thereof and then only if the Delaware and Hudson Company shall have actually made application to this commission, in due form of law, under section91 of the Railroad Law, for the elimination of the grade crossing now existing." *Page 292
On August 21, 1914, the defendant filed its application under section 91 for the elimination of the grade crossing of the said highway, but no action has been taken by the said commission on said application. This failure to act is because of the omission of the legislature to appropriate moneys for grade crossing eliminations, in the absence of which the commission has been unable to take action thereon.
Section 53 of the Public Service Commissions Law, which, it is claimed, authorizes the existence of these tracks provides that no railroad corporation shall "begin the construction of a railroad or any extension thereof" without having first obtained the permission and approval of the proper (publicservice) commission.
Assuming, but not deciding, that the provisions of the Highway Law, section 146, do not apply to the facts in this case as the Appellate Division majority opinion contends, it appears that this defendant did not apply for permission to construct the tracks in question before it actually did so; that it never obtained authority from the public service commission or anybody to construct these tracks, but that it constructed them without authority of law and, therefore, was and always has been and is now a trespasser upon a public highway of the state of New York. It is true it endeavored to obtain what it terms a consent to the construction of the tracks after they were constructed, but the order of the public service commission was not made before the defendant began the construction of its tracks, but long after they were erected and this order, as pointed out, grants a petition for leave to construct certain switch tracks and that these are to be constructed, provided application shall be made under section 91 for the elimination of the grade crossings and the conditions imposed complied with. We thus have this situation: The defendant knew that if it applied to the public service commission or to any lawful authority before it began the construction *Page 293 of the switch tracks in question, it would be required at its own expense or at large expense to it to build the tracks other than at grade. It chose not to do this, but deliberately committed a trespass and constructed a public nuisance. After the trespass and public nuisance had been in existence for years, the defendant applied to the public service commission for leave to construct tracks already in existence and which, the order recites, were constructed without permission. The jurisdiction of an administrative body such as the public service commission is limited and depends upon exact compliance with the conditions of the statutes granting it the power to decide. (InterstateCommerce Commission v. Louisville Nashville R.R. Co.,227 U.S. at 91 and 93; Yick Wo v. Hopkins, 118 U.S. 356-370.) The jurisdiction to grant permission and approve a proposed construction under section 53 of the Public Service Commissions Law before same is begun does not imply or confer jurisdiction to approve or ratify a construction begun or completed before the permission or approval of the commission is sought.
Therefore, while it was proper for the railroad to seek permission to construct switches crossing the highway in question and proper for the public service commission to grant such permission upon condition that application should be made to place such switch tracks above grade this order of the public service commission is not retroactive and does not authorize the present grade switch tracks constructed by the railroad upon its own initiative and without prior application to the commission. Nor would the commission have jurisdiction to approve or ratify a construction begun in disregard of its authority as set forth in section 53 of the Public Service Commissions Law of this state. (People ex rel. South ShoreTraction Co. v. Willcox, 196 N.Y. 212 at 217.) As to the existing switch tracks the railroad was a trespasser.
When it obtained the alleged consent, the defendant stated to the public service commission that it conceded *Page 294 it must apply to the state highway commissioner for a further consent and it now claims, and the Appellate Division sustains that claim, that such consent is unnecessary. Whether that be so or not, the alleged consent of the public service commission was a consent to authorize the future building of tracks only, and those tracks were to be built if the defendant stipulated to apply to the public service commission to place the tracks above or below grade, and complied with the conditions imposed with reference thereto.
At that time it must be assumed to be known that this condition was practically nugatory, because the legislature had not and has not yet appropriated funds in order to carry out the provisions of the act, and so the defendant remains a trespasser without any authority for the existence of the tracks, having succeeded by deliberately evading the law in accomplishing its purpose of constructing the switch tracks upon grade, thus saving the expense of placing them above or below grade.
It is now five years that these switch tracks have remained in use. The purpose of requiring tracks of this kind to be above or below grade is to prevent loss of life and injury to people traveling upon the highways. It may be that during these years people by the score have been killed or injured by reason of the defendant's willful disobedience of the law. If the defendant had applied to the public service commission before it constructed its tracks, in compliance with section 53 of the Public Service Commissions Law, its petition would have been granted, if at all, only on conditions which would have to be complied with beforeor at the time the tracks were constructed and not at some indefinite time thereafter, thus practically nullifying the conditions.
The defendant disregarded the plain principles of law and seeks to defend its action by a strained construction of the statutes, and also by a repudiation of its express promise to comply with the provisions of law favoring *Page 295 the plaintiff's contention. This certainly is disrespect of the law itself.
To sustain the defendant's contentions will breed disrespect for the law and its administration.
When the counsel for the defendant appeared before the public service commission, applying for its consent, he said: "I concede such an order" (the one applied for) "as that would not give us the right to maintain those tracks across that road at grade without we later get the consent of the Highway Commissioner. I concede that to be a fact."
Upon the argument, counsel admitted making this statement and that he supposed it was necessary for his client to obtain such consent at that time, but now says he was mistaken and that no such consent is necessary.
It is clear that the defendant, through its counsel at this hearing before the public service commission, took a position which undoubtedly had its effect upon that body. Now, before this court, he says he was mistaken.
At Trial Term, the plaintiff obtained a judgment upon the ground that section 146 of the Highway Law conferred upon the commissioner of highways jurisdiction in the premises and that his prior consent to the construction of the tracks was necessary. The Appellate Division, by a majority decision, reversed this judgment upon the ground that the public service commission had jurisdiction and that the commissioner of highways only had jurisdiction where the highway was improved and that the highway in question was not improved, and, further, that, even if the highway was deemed to be an improved one, the consent of the local authorities to encroachment of the highways gives that right primarily, but, because the highway has been improved, such encroachment must be made under the conditions and regulations prescribed by the highway commissioner, and that the action of the highway commissioner is not a consent to an encroachment, but an administrative direction as to how it shall *Page 296 be done and it shall not be done in such a manner as to unnecessarily interfere with the use of the highway.
The highway statute in force at the time of the commencement of the action distinctly provides that such construction shall be under such regulations and conditions as may be imposed by the state commissioner of highways.
In other words, it presupposes the erection of tracks at grade to be subject to the approval of the commissioner of highways. No action to that end by the commissioner has been had, but on the contrary, the complaint in this very action shows a violent and active dissent on the part of the state and its commissioner of highways to the action of the railroad company.
The judgment and order of the Appellate Division appealed from should be reversed and that of the Trial Term affirmed.
HISCOCK, Ch. J., McLAUGHLIN and CRANE, JJ., concur with CHASE, J., and CARDOZO, J., concurs in result; HOGAN, J., concurs with ELKUS, J.
Judgment affirmed.