Upon the merits this case involves a determination of the question.: May the city of Buffalo by action of its local authorities, grant a franchise or permission to the defendant railway company to extend its-lines and for that purpose to construct, maintain and operate a^street surface railroad in certain streets of said -city with■out requiring or providing that such franchise, grant or permission be sold at public auction to the highest bidder in accordance with the provisions of section 93 of the Railroad Law ?
The question must be answered in the negative unless' the provisions of the “Mil'burn Agreement,” so called,-rendered such sale unnecessary, and also unless such agreement was legally ratified by the Legislature. Section 93 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1901, chap. 494) must be construed to mean that in all cities of the' first class, of which the ■ city of Buffalo is one? such franchises or grants must -be sold at publiq
The contract referred to in such act concededly was the “ Milburn Agreement.”
Did the “ Milburn Agreement,” so called, relieve the local authorities of the city of Buffalo from the obligation of selling the franchise in question at public auction and to the highest bidder?
The conditions which led to the making of the “Milburn Agreement ” should be understood in order that its true meaning may he ascertained. This could be no more concisely stated than in the preamble to such agreement. Practically it was recited that the conditions in the street car service had become intolerable in the city of Buffalo; that certain corporations had been given franchises without restriction as to the charge which might be exacted for the carriage of passengers; and that as to all no obligation had been imposed as to the transfer of passengers from one line to the other ; that some of such corporations had paid nothing and were under no obligation to pay anything for their franchises; that others of -them were under obligation to pay more than their net earnings; that the street surface railroad business was in confusion, to the serious detriment of the public, as well as of the interests of the railroad companies. The result was the “ Milburn Agreement,” So far fis
The learned trial court has found, and we. think the" evidence fairly, justified the conclusion, that the franchise in question consti-. tutes an extension of the railroad owned and operated by the defendant company, resulting from the consolidation of two of the companies parties to the “ Milburn Agreement.” At all events, there being no certificate to the effect that the case contains all the evidence, we are bound to presume that the finding was supported ■ by sufficient evfdénce.
By the express terms of the “ Milburn Agreement ” it was provided that by the mutual consent of • the parties thereto “ its terms and provisions may be extended to any future extensions.” That provision of the agreement must be deemed reasonable, and, therefore, within the contemplation of the parties.. Otherwise, a proposed extension of a line of one of the contracting parties could be practically prevented by a corporation which might bid a sum largely in excess of the value of the franchise, and without regard to the efficiency of the railroad system as á whole. WA think the parties to the “Milburn Agreement” did not intend that if the line or lines of any one of the railroad, companies which were parties to it were to be ■ extended, that such company, would .be ■ compelled to enter into competition with another Corporation for
We conclude that under the provisions of the “ Milburn Agreement,” if duly approved by the Legislature, the local authorities of the city of Buffalo were permitted to grant an extension of the lines owned by any of the companies parties to such agreement, and to permit such companies or their successors to construct, maintain and operate their railroads in streets constituting such extension without selling such grant or franchise at public auction to the highest bidder, where the good faith of such authorities in such action is not in question.
Presumably the city authorities in granting the franchise in' question acted for the best interests of the city, and their action in the premises not being challenged on the ground of fraud or because of faithlessness in the performance of their duty, this court ^ ought hot to be in the attitude of seeking means to thwart their purpose and intention.
The Legislature assumed to ratify and approve the “Milburn Agreement ” by chapter 151 of the Laws of 1892, which is as follows : “ The contract bearing date January first, eighteen hundred and -ninety-two, and executed on the nineteenth day of January, eighteen hundred and ninety-two, made and entered into by the city of Buffalo with the Buffalo Railway Company, the Crosstown Street Railway Company-of Buffalo, and the West Side Street Railway Company, which adjusts the differences previously existing between said city and said companies, is hereby in all things ratified and confirmed, and all the provisions of said contract are hereby declared to he of full force and binding effect; and the railway companies named as aforesaid are relieved from the payment to the city of Buffalo of all percentages of their gross receipts per annum, except those provided for and reserved in and by such contract,”
The Milburir Agreement,” which the'act in question assumes to ratify, did not authorize any railroad company or companies to lay tracks or maintain and operate a railroad in any of the streets of the city of Buffalo. The act, so far as applicable to the. questions involved in this case, simply said: Such railroad companies may lay down tracks in such streets and maintain and operate a railroad, thereon, provided the. local authorities of the city of Buffalo shall consent thereto. We-think it was within, the province of the Legislature to have conferred such power, upon the local authorities of the city of Buffalo.
We conclude that the grant, franchise and permission given by the local authorities of the city of Buffalo to the defendant railway company to extend, maintain and operate its railroad upon the streets, avenues and parks of said city, mentioned in the resolution of the common council referred to, was within the power of such authorities to grant, and that there being no question of fraud raised, or as to their good faith in the premises, their determination Should be regarded as final.
The conclusion reached upon the merits renders it unnecessary to consider the. many other questions raised, by the appellant upon this appeal.
We conclude that the judgment appealed from should he affirmed, with costs.
“ All concurred.
judgment affirmed, with costs.