On the 25th of October, 1894, the plaintiff, an abutting owner upon Bergen street, in the city of Brooklyn, brought this action to restrain the defendant, a domestic corporation organized under the General Railroad Act of 1890, from constructing, operating or maintaining a surface railroad through Bergen street in front of his premises, upon the ground that it had not obtained the consent of the property owners as required by law.
Upon the trial it appeared that on the 19th of June, 1894, the defendant received the consent of the local authorities of said city to construct and operate a street railroad through several streets, including one block on Bergen street, upon condition that it should comply with all the provisions of the Railroad Law, but it had not obtained the consent of a majority of the property owners on said block or of the Appellate Division of the Supreme Court to the construction or operation of said road thereon. The Atlantic Avenue Railroad *Page 473 Company, organized in 1872, had for many years prior to the commencement of this action operated a double-track street surface railroad along Bergen street in front of the premises of the plaintiff, who owned no part of the street. On the 13th of October, 1894, an agreement was entered into between the defendant and the Atlantic Company, which, among other things, provided that "the Nassau Company, for the purpose of operating its railroad on said portion of Bergen street (being the part in question) may use the tracks and wires of the Atlantic Company thereon, and may, upon and along said portion of Bergen street, place and maintain its feed wires upon the poles of the Atlantic Company, and shall pay the Atlantic Company a proper rental for such use of said tracks, wires and poles." After the commencement of this action, and on the 2d of November, 1894, a second agreement was entered into between said companies, which provided that "the cars of the Nassau Company may be moved over the tracks of the Atlantic Company on Bergen street (through the block in question) and the Atlantic Company agrees to furnish the power to move the said cars on said portion of Bergen street. The Nassau Company agrees to pay the Atlantic Company annually for the use of said tracks and power such sum as the parties hereto may hereafter agree upon, and if they fail to so agree, the annual compensation shall be determined as provided in section102 of the Railroad Law."
The action was tried at a Special Term of the Supreme Court, and the justice presiding held that the defendant, under "an agreement," not specifying which, had "the legal right to operate its railroad over the tracks of the Atlantic Avenue Railroad Company in Bergen street * * * notwithstanding the property owners upon Bergen street * * * have not given their consent to the construction and operation of the defendant's railroad; that the proposed operation by the defendant of its railroad on Bergen street is lawful, and that the plaintiff is not entitled to an injunction enjoining and restraining the defendant from such operation; that the *Page 474 defendant, not having the consent of the property owners on Bergen street, * * * is not entitled to construct a railroad thereon," and judgment was directed accordingly, without costs to either party.
The trial court thus held that the consents of abutting owners were not required for the operation of a street railroad as distinguished from the construction thereof, and the General Term affirmed the judgment, one of the learned justices dissenting.
There is no dispute as to the facts, and the question presented for us to determine is whether the defendant had a legal right as against the plaintiff, under the circumstances stated, to operate its railroad upon the tracks of the Atlantic Avenue Company, through that portion of Bergen street passing in front of the plaintiff's premises. The determination of this question requires us to consider section 18 of art. 3 of the Constitution, chapter 218 of the Laws of 1839, and several sections of the Railroad Law.
Said section of the Constitution provides that "the legislature shall not pass a private or local bill in any of the following cases." Then follow thirteen specifications, and, among others this: "Granting to any corporation, association or individual, the right to lay down railroad tracks." After this enumeration the section provides that "the legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction oroperation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the Appellate Division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall *Page 475 determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners." (Const. art. III, § 18, as amended in 1874 and continued in the revision of 1894.)
The statute of 1839, entitled "An act authorizing railroad companies to contract with each other," provides that "it shall be lawful hereafter for any railroad corporation to contract with any other railroad corporation for the use of their respective roads, and thereafter to use the same in such manner as may be prescribed in such contract." (L. 1839, chap. 218.) While this act was repealed in 1890, the repealing statute provided that the provisions of the Railroad Law, so far as they are substantially the same as those of laws previously existing, "shall be construed as a continuation of such laws, modified or amended, according to the language employed in this chapter and not as new enactments." (L. 1890, chap. 565, § 182.) By section 78 of the Railroad Law, the provision already quoted from the act of 1839 is repeated in hæc verba. Section 90 of the Railroad Law, so far as now material, is as follows: "The provisions of this article shall apply to every corporation which under the provisions thereof, or of any other law, has constructed or shall construct or operate, or has been or shall be organized to construct or operate, a street surface railroad, or any extension or extensions, branch or branches thereof, for public use in the conveyance of persons and property for compensation, upon and along any street, avenue, road or highway, in any city, town or village, or in any two or more civil divisions of the state, must comply with the provisions of this article." (L. 1890, ch. 565, § 90; L. 1893, ch. 434, § 90.)
Section 91, the next in order, provides that "a street surface railroad, or extensions or branches thereof, shall not be built, extended or operated unless the consent in writing, acknowledged or proved as are deeds entitled to be recorded, of the owners of one-half in value of the property bounded on, and also the consent of the local authorities having control *Page 476 of that portion of a street or highway upon which it is proposed to build or operate such railroad, shall have been first obtained." (Id.) The rest of said sections are not material in this controversy, nor are the amendments passed in 1895 and 1896. (L. 1895, ch. 545; L. 1896, ch. 855.)
Section 102 prohibits street surface railroad corporations from constructing, extending or operating their roads or tracks in that portion of any street in which there is already a street surface railroad without the consent of the corporation owning and maintaining the same, except that any street surface railroad company may use the tracks of another street surface railroad company for a certain distance, varying with the population of the place where it is located, upon condemning the right to do so by proceedings in court. These are all the provisions of the Constitution or statutes that are regarded as material to the determination of the question before us.
The act of 1839 must be regarded as having been continuously in force from the date of its passage until the present time, for although that statute has been repealed in form it has been continued in fact by consolidation with many others in the comprehensive act now known as the Railroad Law. The statute of 1839, in connection with the constitutional amendment above quoted, received consideration from this court in People v.Brooklyn, Flatbush Coney Island Railway Company (89 N.Y. 75), where it was held that said act was not affected by the constitutional provision, which prohibits future legislation only, without reference to previously existing laws. In no other respect is that case regarded as analogous to the one before us, for it was an action brought by the state through its attorney-general to restrain the defendant therein from running its cars upon Atlantic avenue in the city of Brooklyn. There was no defendant except the railroad proceeded against. The abutting owners were not parties, and their rights were not passed upon. On page 91 the court said: "It is the state which sues. No private citizen is seeking to vindicate his individual rights. That would present a very different case from the one before us. It is the *Page 477 state, representing the whole people, which seeks to restrain the defendant from exercising the right which the state, representing the whole people, expressly conferred." The case of People v.O'Brien (111 N.Y. 1) was also brought by the attorney-general, while Beveridge v. New York Elevated Railroad Co. (112 N.Y. 1) was brought by a stockholder, and in neither were the rights of abutting owners involved.
The act of 1839 was doubtless passed with reference to steam railroads only, as no other kind was then in existence. It is questioned whether, as continued in force by section 78 of the Railroad Law, it has any other application, for it is not found in the article entitled "Street Surface Railroads." Assuming, however, that it now has a general application, the question remains whether the defendant, by virtue of its agreement with the Atlantic Avenue Company, can run its cars over the tracks of the latter in Bergen street, without the consent of the abutting owners, or the approval of the Supreme Court. As stated in another form, the question is whether the running of its cars through its own operating agents by means of the power furnished by the Atlantic Company on the tracks of the latter, is operating its road, and if so, is such operation prohibited by Constitution or statute, except on compliance with the conditions mentioned?
In Colonial City Traction Company v. Kingston City RailroadCompany (153 N.Y. 540) we held that "the use, by a street surface railroad company, of a few hundred feet of the intervening tracks of another company, to form a connection between the main portions of its own track, over which to run its own cars and transport its own passengers as part of a continuous route," was "an `operation' of its road, within the meaning of the provisions of the Constitution and of the statute." The question there presented was whether the Colonial Company could condemn the right to use the tracks of the Kingston Company to connect main portions of a line to be operated as an independent railroad without first obtaining the consent of the local authorities and the abutting owners. That case is, therefore, analogous to this, to the extent of *Page 478 determining what is meant by the phrase "operating a railroad." In discussing that question we said, "If the appellant shall finally succeed in acquiring the right to run its cars for a short distance on the respondent's tracks, it will still be operating its own railroad, not that of another company, over that part of its route as well as any other. It clearly would not be operating the respondent's railroad, but using a portion of the tracks of the respondent to operate its own railroad. Two different companies cannot operate the same railroad at the same time, although both may use the same track in part to operate their respective roads. When the statute provides that `any street surface railroad company may use the tracks of another street surface railroad company' upon certain conditions, permission to `use the tracks' implies use for the purpose of operating its cars thereon. Manifestly no other use is intended. A railroad is none the less in operation between two points because it runs its cars for a part of the way over the tracks of another road. When a railroad corporation acquires the right to run its cars over a street, whether upon its own track or that of another, that right becomes a part of the railroad, and in exercising that right the corporation operates its own road. The operation of a railroad includes the running of cars, and when a company runs its own cars, receives its own passengers and collects its own fares over a continuous route of four miles, and all the trackage belongs to it except a connecting link of a few hundred feet in the middle, which it acquires the right to use through the power of eminent domain, we think it is to be regarded as operating its own railroad over the entire route, within the meaning of the Constitution and the statute. The prohibition is in the disjunctive and is directed against operation the same as it is against construction."
While in discussing that case language was used not applicable thereto, because it was a case of condemnation, but applicable to a case like this where there is a consent by one railroad to permit another to use its tracks, still the language above quoted was directly applicable and germane to the case *Page 479 then in hand. Upon the reargument we limited the effect of the decision to proceedings in invitum to acquire the right to use the connecting track of another company, but in no other respect did we modify our previous conclusion. (154 N.Y. 493.) There is no difference between the two cases so far as the meaning of the word "operation" is concerned, except that in this case the power is furnished by the company owning the tracks, while in that case it was to be furnished by the company running the cars. I think the decision was correct, and that unless it is distinctly overruled in an essential feature, we are bound to hold that the defendant under its agreement with the Atlantic Avenue Company was to operate its own railroad through that portion of Bergen street in question. It adopted the tracks of that company as its own for the purpose of operating its railroad. If running cars is not operating a railroad it is difficult to understand what the statute means by "operate" or "operated." As it was not to operate the Atlantic Avenue railroad, what road could it operate except its own?
The courts below have held that a street surface railroad may be operated upon a public street without the consent of a majority of the abutting owners or of the Supreme Court, notwithstanding the command of the Constitution and the Railroad Law. As we said in the Kingston case, "the consent required is not simply to the laying of the tracks, but also to the operation of the road. * * * An abutting owner might be willing to permit one company to operate its line through the street in front of his property, which would involve the passage of but three or four cars an hour, but not be willing that several companies should have that privilege, which might involve the passage of a car every two minutes. It is not the laying of tracks but the running of cars that constitutes the chief burden, both upon the street and the property of the abutting owners. Consent to the burden of one road should, in reason, be limited to that road with whatever increase of business it may have, but should not be extended to as many roads as can crowd their cars into operation upon the street. It *Page 480 would be an unreasonable construction to hold that this is what the public authorities or the private citizens intend when they consent to the building and operation of a street railroad. Instead of an advantage to the public or to those owning property on the street, which is the inducement to obtain consent, it might result in a heavy and unexpected burden upon both, without any power to prevent it, and yet with no intention to consent to it. It would be a perversion of the consent given by extending it far beyond the intention of the parties."
I do not wish to retreat from the position thus taken, which was concurred in by every member of the court who took part in the decision.
The legislature had the power to prevent railroad companies from operating their roads without first obtaining the consents of the abutting owners, for it has all the power of legislation that the people can grant except as it is restrained by the Constitution, which contains no prohibition upon the subject. (Koch v. Mayor, etc., 152 N.Y. 72, 75.) The legislature exercised that power in the very act under which the defendant was organized, and the restriction was, therefore, a part of the charter which gave it the right to exist. By accepting the charter it became bound to comply with all the provisions of the Railroad Law applicable to corporations of its class. The prohibition was clear and distinct, for section 91 provides that a street surface railroad "shall not be built, extended oroperated" without the required consents. The operation of the road is as distinctly forbidden as the building or extension thereof. It is impossible to separate the prohibition from any one of the three acts of building, extending or operating without violence to the language used. If a railroad cannot be built without the consents, it cannot be operated without the consents. The command of the statute applies with the same force to the one act as to the other. We have no power by construction to strike any of the forbidden acts from the statute, but it is our duty to give equal force to each. A forced construction weakens respect for the law and impairs the confidence of the public in the courts. *Page 481
It is, however, contended that the right of the Atlantic Avenue Company to contract, under the act of 1839, for the use of its tracks by another road, was a property right of which it could not be deprived except by the power of eminent domain or the police power.
If the contract had been made between the two roads before the passage of the act requiring consents as a condition precedent to the operation of the defendant's road, a different question would have arisen, as to which I express no opinion. In this case, however, the prohibition was in force not only before the traffic agreement was made, but before the defendant was in existence, and it has no right to enter into the agreement without complying with the condition required by its charter. The Atlantic Avenue Company is not a party to this action, and its rights are not involved. If the legislature had the right to create the defendant, it had the right to restrict its power in any way that it saw fit, either by wholly preventing it from making certain kinds of contracts, or by preventing it from making them except upon a prescribed condition. A corporation can make no contract whatever, except through the permission, express or implied, of the legislature. It is a "mere creature of law," and has no powers except those conferred by statute, either specifically or by necessary implication. When the legislature created the defendant it had the right to prevent it from operating its railroad, under a traffic agreement or otherwise, without the consent of the abutting owners or the procedure in court authorized in lieu thereof.
It is contended that if we hold that a traffic agreement cannot be made between two surface railroad companies so that one may operate its railroad over the tracks of the other without the consent of the abutting owners, the precedent will injure the value of railroad properties as well as the bonds secured by mortgages thereon in the hands of purchasers in good faith.
The argument based upon inconvenience does not change *Page 482 the meaning of the statute, although in a case of doubtful construction it is worthy of attention. The meaning of section 91 of the Railroad Law, however, is not doubtful, and if the managers of street railroad corporations have misunderstood or disregarded it, the evil should be at once arrested. Moreover, those who have made investments in street railroads are not alone to be considered, but the thousands of abutting owners whose property is diminished in value by the constant running of cars before their doors are also entitled to consideration. The capital invested in street railroads is small when compared with the capital invested in homes that are disturbed, as well as accommodated, by the great traffic on these roads. The rights of both classes of investors are to be considered, but it is for the legislature, under the Constitution, to so regulate their rights as to do the most good with the least harm. We must take the law as it is written, and as we require obedience from others, must obey it ourselves. The legislature has not left the railroads in the hands of abutting owners, but in lieu of their consent, has provided a reasonable substitute through judicial proceedings, and it is safe to assume that the railroad companies are quite as capable of taking care of themselves as the abutting owners. It is our province to declare the law, and I think we should discharge that duty in this case by holding that the Railroad Law prohibits the defendant from operating its road upon the tracks of another company, through a public street, without first obtaining the consents required by that act.
The judgment should be reversed and a new trial granted, with costs to abide the event.
PARKER, Ch. J., reads for affirmance. All concur (GRAY, J., in memorandum, and BARTLETT and MARTIN, JJ., in result), except VANN, J., who reads for reversal.
Judgment affirmed, with costs. *Page 483