Hearst v. Berri

Van Brunt, P. J.

(dissenting):

I cannot concur in the conclusion arrived at in the opinion of Mr. Justice Williams. It'seems to me that the whole history of legislation is at variance with the right of the bridge trustees in any manner to interfere with the free and open access of foot passengers to such bridge. It is provided in the new charter (Laws of 1897, chap. 378) by section 598 as follows:

“ Sec. 598. The Hew York and Brooklyn Bridge is hereby declared to be a public highway for the purpose of rendering travel between the boroughs of Manhattan and Brooklyn certain and safe at all times, subject to such tolls and prudential and police regulations as the municipal assembly shall adopt and prescribe; provided, *81however, that the passageway of the bridge now set apart for foot passengers shall remain free and open to all pedestrians coming or going at all times.”

This charter became a law on the 4th of May, 1897, and it is here declared to be the policy of the Legislature that the rights of foot passengers, as they were then enjoyed in the use of the bridge for the purposes of passage, should not, in any manner, be restricted or interfered with; and yet it is claimed that on the 22d of May, 1897, the Legislature intentionally conferred power upon these bridge trustees practically to cut off all foot passengers from the use of the bridge. When I say cut off from the use of the bridge ” I use the words advisedly, because the necessary result of the plans which have been adopted by the bridge trustees is absolutely to deprive foot passengers for at least half of the time of the bridge, and for the other half to make the safety of their access to the bridge dependent upon the obedience of trolley line operators to rules and regulations.

It seems to me incredible that the Legislature could have intended to hand over this property for such an exclusive use; and, unless such an intention is plainly indicated by legislation, it should not be allowed to prevail.

At the very time that this provision of the new charter was passed, there was pending legislation in reference to the qualified use of the bridge by certain trolley lines of railroad, the project discussed being the use of the bridge by an elevated system, certainly so far as the approaches were concerned. On the 22d of May, 1897, a bill became a law whereby it was provided that the trustees should prepare plans and specifications regulating the operation over said bridge of the cars of such corporation or corporations with whom it might contract, as such trustees should deem best adapted to promote the public comfort and convenience and to sub-serve the purposes for which said bridge was constructed; and that except as otherwise provided by said trustees such plans and specifications should be in substantial conformity with the plans recommended to said trustees by certain expert engineers in their report, bearing date February 8, 1897.

These plans were for an elevated structure which in no manner *82interfered with the access of foot passengers to the bridge, and were in entire harmony with the will of the Legislature as declared by the provisions of the charter above referred to. Now, under the clause except as otherwise provided by said trustees,” the trustees of the bridge have adopted plans by which the trolley lines shall run upon the surface and, during the passage of the cars over the footway, foot passengers shall be absolutely excluded from the bridge — a clear violation of the express will of the Legislature. There is no rule of interpretation that ever existed which would, under these circumstances, justify the claim that it was the intention of the Legislature to allow the trustees to cut off foot passengers from the bridge.

But it may be claimed by the trustees that they do not cut off foot passengers from the bridge. It is conceded that it is the intention so to do at stated intervals, and, as has already been stated, to make the safety of the access of foot passengers to the footway entirely dependent upon obedience of trolley line operators to regulations.

It has been urged that the bridge trustees, independent of the powers conferred by chapter 663 of the Laws of 1897, had the right to do that which has been attempted to be done by them. If such right had been conferred by other statutes, it was limited by chapter 663 of the Laws of 1897. They are there authorized to do this thing in a certain way, and even if they had power before that to do it in other ways, this legislation necessarily restricted that power. It is plain that it was the intention of the Legislature that the elevated plans as prepared by the engineers, which the Legislature had before it and referred to, were substantially the plans which were to be adopted by the trustees, and the use of the words “ except as otherwise provided by said trustees,” was only intended to apply to minor details. It would seem to be a farce for the^Legislature to attempt to legislate upon the subject at all if the trustees had all the power necessary prior to the legislation, and there was no intention to restrict such power. The action of the Legislature would be equally meaningless if we were to hold that it intended to confer authority upon the trustees to contract in reference to certain plans, and then by the same section to remove every restriction in regard to methods of construction and operation.

*83It is a familiar rule of construction that where various pieces of legislation upon the same subject can be harmonized, such a construction should prevail, and harmony cannot obtain in the construction of the various acts of the Legislature in respect to this subject if the trustees are to be construed to have the power to cut off foot passengers from access to the bridge.

I think the order should be affirmed.

Patterson, J., concurred.