Since the amendment of the Constitution in effect January 1, 1924, such legislation as is here under consideration, affecting cities of the first class, would be clearly unconstitutional. As pointed out by the Court of Appeals in Matter of Mayor, etc., of New York (Elm Street) (246 N. Y. 72): “ Up to that time, the distinction between special or local laws on the one hand and general laws on the other was directed to the form of the enactment rather than to its substance. If the act by its terms was applicable to a class, it did not cease to be general though the fact would appear, if extrinsic evidence were received, that it was local in effect. [Citing cases.] Even then there was a point beyond which evasion was not suffered. Identifying tokens might be so many and particular that classification would find an end and designation a beginning (Matter of Henneberger, 155 N. Y. 420). * * *
“ The Home Buie Amendment [Const, art. 12] established a new test. We are no longer confined to the inquiry whether an act is general or local ' in its terms.’ We must go farther and inquire whether it is general or local 1 in its effect.’ ”
We are of opinion, however, that in this case the Constitution as it stood at the time of the enactment of the statute in question sufficiently protected the city and its citizens from the inroads of evasion by that act attempted to be accomplished. Without any extrinsic evidence as to its effect, as the Constitution would now permit, and judging the act by its terms alone, we are still unable to follow the reasoning which holds chapter 657 of the Laws of 1900 other than a local bill.
At the time this legislation was enacted, there was a complete plan of law embodied in the New York City Charter expressly designed to protect the citizens of the city of New York, acting through its mayor and other officers, and the streets of the city, from being overridden by those seeking to use the streets for commercial purposes. At that time also there existed a Transportation Corporations Law, one article of which, consisting of three sections, related only to stage coach corporations, and by its terms had no relation to the city of New York. To this article was added, by chapter 657 of the Laws of 1900, a fourth section, drawn in general language. By reason, however, of its insertion into an article which *407did not apply to the city of New York, attention was distracted from the fact that by its terms only the most extraordinary chain of circumstances could ever make it applicable to any other locality; and such application was further dissembled by leaving unchanged the provisions of the article exempting the other three sections from applying to the city of New York. In addition, not a word was said in this amendment which in any way repealed any of the provisions of the charter laws governing said city. The result was that though this new section enabled any stage coach corporation which came within its terms to obtain valuable franchises in the streets of the city of New York, unhampered by any provisions of the city charter, yet no new corporation could be organized under said Transportation Corporations Law for the purpose of operating stages in said city, for the article still confines the field of operation of corporations organized thereunder to localities other than the city of New York. To this day, any corporation seeking to share with the defendant the privileges of a bus franchise in the city of New York must be one organized under some other law than the Transportation Corporations Law although by such amendment to this law the defendant has obtained and exercised the extensions of its route. This anomaly alone stamps the amendment, in spite of its general terms, as never having been intended to be anything but special legislation. With such a setting for its enactment, it is not surprising that, as we find, other vices mark its every feature.
The amendment applies only to cities of the first class, which at that time comprised only two cities, namely, New York and Buffalo. Admittedly, such a restriction in terms was proper classification. In order, however, to come under the terms of the amendment, it was not sufficient that the applicant for its benefits be any corporation operating a lawfully established stage route, but such corporation must be one incorporated under the laws of the State of New York. All corporations lawfully operating stage routes and that have been incorporated elsewhere than in the State of New York are excluded. There is no provision of law against other than a domestic corporation receiving a franchise for the operation of a stage route entirely within the State of New York. Yet this act specifies that such a corporation can never take anything thereunder. So far as classification is concerned, there is no reason to exclude this large class of corporations incorporated under laws other than those of the State of New York. In adopting such classification, the law does not apply to and include within its operation all objects reasonably within the classification attempted.
Such specification, however, though unnecessary for classification, *408is very serviceable for identification, and if a corporation organized under the laws of a sister State was eligible to operate a stage route within this State in other than cities of the first class, then so to phrase this act as to exclude such a corporation from its benefits could not be merely for purposes of classification, but only for the purpose of closing in upon the identity of the particular corporation intended to be benefited by it.
Again, not only is any corporation desiring to take advantage of this act required to be incorporated under the laws of this State, but the incorporation must be under such laws “ heretofore enacted.” No opportunity is afforded for any other corporation to qualify for the benefits of the act if subsequently incorporated under any amendment of then existing law. The language is, “ any law of this State heretofore enacted.” As the act provided that it should take effect immediately, “ heretofore enacted ” must have meant and been intended to mean “ enacted before this act takes effect.” No reasonable purpose for such a limitation could exist on the ground of classification, and no other purpose could be served except to- furnish additional assistance in identification of the intended beneficiary of the act. Nothing but the plight in which defendant now finds itself suggests any reason for holding that the word “ heretofore ” as used in the act really means “ hereafter ” or both “ heretofore and hereafter.” If the act had been intended to embrace corporations organized under laws “ heretofore or hereafter enacted,” it might not have suited defendant’s purposes, but, even though it might have admitted a competitor into the local field, it would have removed this objection to its being deemed to be a general act. That the objection is good is shown by what was said in Matter of N. Y. Elevated R. R. Co. (70 N. Y. 327), in deciding that the act there being considered was not a local law: “ The act is thus made applicable to companies to be formed and to existing companies, and is thus made as general as it can be. * * * The existing companies have no exclusive privileges or functions conferred. They are simply placed on a footing of equality with new companies which may be formed under the act.”
In addition to being incorporated in this State, and being so incorporated under the laws as then enacted, tins amendment provided that such corporation must at the time of the enactment have owned and operated a stage route which had been continuously operated by the same company or its predecessors in title to such route for five years last past. The defendant could fulfill all those conditions. Some other corporation desiring to be its rival might not have owned and operated such a route for five years prior to the passage of the act, but leased it on or about the date on which *409the act took effect, or it might be both the owner and operator of its route at the time of the enactment, and might have owned it for five years prior thereto, but during all or part of such five years leased the same for another to operate. Or it might' have been the owner and operator of an established route for five years prior to the enactment, and at the time of its passage operated the route as lessee but not as owner. Such a corporation, whether as owner and operator, or operator alone, would be ineligible, though it fulfilled all reasonable requirements of permanency and efficiency of service, because the identifying tokens of the amendment would fatally discriminate against such a rival and redound only to the benefit of the defendant.
The amendment in question is thus a local law because its terms exceed any reasonable classification and serve only as means of identification.
Defendant seeks to obviate a part of this criticism by the present contention that the expression “ five years last past ” does not refer to the time of the passage of the act, but to the date of the approval by the State Board which the amendment substituted in place of the approval of the local authorities designated by the Greater New York Charter.
It is strange that the defendant should need a second special construction of plain words in the first sentence of this brief statute when it bears evidence that its every word was carefully chosen and considered in order to effectuate the purpose sought. But seriously considering defendant’s contention, it cannot, of course, be disputed that where a statute is open to two permissible interpretations, under one of which it is constitutional and the other not, the foimer will be adopted. In order, however, to invoke such a rule, there must be two permissible interpretations, and net merely a necessity for a strained construction in order to enable defendant to take advantage of it.
Giving to the act the ordinary meaning of the words used, we are clearly of the opinion that they speak as of the date on which they went into effect as a statute; that a stage route operated “ for five years last past ” then meant such a route operated for a period of five years then last past. Any other construction would, in our opinion, be forced and strained and unwarrantable. Words must be taken in the light of the circumstances in which they were used, and not as subsequent events may lead the parties interested to wish them to be understood. There was nothing in the circumstances as they existed in 1900, so far as appears, which required that the meaning of the words “ five years last past ” should perennially spring forward to cover a five-year period prior to *410every passing year. It was only necessary then that they should relate to a time prior to the taking effect of the act, and there is nothing to indicate that they were then intended to have any other meaning.
Holding, therefore, as we must, that the words “ five years last past ” mean five years prior to the enactment, the act is bad on this account also, not only because those words are tributaries to its scheme of identification, rather than classification, but, further, because they confine the application of the act only to then existing cities of the first class. As above stated, at the time of the passage of the act there were but two cities of the first class in the State of New York, namely, the cities of New York and Buffalo. Since, as above clearly shown, the words “ for five years last past,” as used in the statute, mean five years prior to its passage, then, although other cities might indeed (as one has in fact) thereafter become by increase in population cities of the first class, yet they could never fulfill the conditions which would extend the operation of the statute to them, because they could never become cities of the first class in which any corporation had owned and operated a stage route “ for five years last past,” i. e., for five years prior to the enactment. They would be excluded from the operation of that law for all time to come, because the statute by its terms confined its application to the two localities which at that time were already cities of the first class, thus rendering it distinctly a local bill.
The fact that a law at the time of its enactment operates upon one locality only is not of itself fatal to the claim that it is a general law, but the fact that it was so framed that it can never embrace any other locality renders it local. Such test has been applied by the courts of this State in determining whether particular statutes Were local or general. (Matter of Church, 92 N. Y. 1; Matter of McAneny v. Board of Estimate, etc., 232 id. 377.)
In Matter of Church (supra), in arriving at the conclusion that the act there considered was general, it was said: “ The class consists of every county in the State having within its boundaries a city of one hundred thousand inhabitants and territory beyond the city limits mapped into streets and avenues. How many such counties there are now, or may he in the future, we do not know, and it is not material that we should.” Such reasoning would have been meaningless in that case unless it were sufficient to know that in the future it was possible that the act might apply to other counties.
In Matter of McAneny v. Board of Estimate, etc. (supra) the court held the act then under consideration general, saying: “ It applies *411to all cities in the State having a population of a million or more. It may be conceded that at the present time it is applicable only to the city of New York, but if so it by no means follows that it was intended only for that city, since there may and probably will in the near future be one or more cities to which it will be applicable.” Again, such reasoning would not have been used unless it had been deemed that, even where a number of cities are included in the class, a description of them by population (which is what “ cities of the first class ” amounts to) is not classification if the statute does not contain any provision by which it is made applicable to municipalities subsequently coming within the prescribed population.
Defendant, however, says that a practical interpretation has been given to the act with respect to the words “ five years last past ” by the public officers charged with its administration. In 1900 and 1901 the Board of Railroad Commissioners, upon application of the defendant, issued its certificates of approval of certain routes; and in 1912 the Public Service Commission, as successor to said Board, issued a further like certificate. In all said certificates there are recitals to the effect that due proof has been given that the company and its predecessor in title owned and operated a lawfully established stage route which had been continuously operated by it and its predecessor for five years last past. In 1901 the expression “ five years last past,” as used by said public officers, would relate back to only four years prior to the passage of the act; and in 1912, “ five years last past ” would go back only to seven years subsequent to its passage. Hence, defendant claims, by such interpretation apparently given by the Boards which granted the certificates, the expression applied not only to situations in being at the time of the enactment, but to those existing at the date of the applications for certificates. Defendant is obliged to admit that such an interpretation, if made by said Boards, would not be binding on the court, but still urges that it is persuasive and should not be overlooked.
A very little scrutiny shows that the recitals in the certificates are no evidence of such an interpretation by said Boards. The company in each of its applications, which were unopposed, described itself as having been engaged, as was the fact, in the continuous operation of its original route for a period of five years prior to the passage of the act. This is strong evidence of the interpretation defendant then placed upon the words “ five years last past.” No other interpretation of their meaning was then necessary for the purposes of the certificates. Thus, there being no occasion to make the interpretation which defendant now claims, or one different *412from that which defendant then gave in its applications, it cannot be assumed that it was made by said Boards.
It can, therefore, be truly said, as the Court of Appeals pointed out in Matter of Mayor, etc., of New York (Elm Street) {supra), that here the identifying tokens were so many and particular that it was not an attempt at reasonable classification, but a designation and identification of the particular beneficiary of the act. It was an attempt so to frame and enact the legislation that it would apply not to all corporations owning or operating stage routes, or to all stage routes reasonably within the classification, but to a particular corporation or corporations to be found within two of the cities of the State which could qualify as coming within the description. More narrowly, it was an attempt, while still keeping in force the general provisions of the local law, namely, the general charter provisions applying to the city of New York, to carve out from the application of such local law a certain designated corporation or corporations within the locality, in accordance with the particular designations and identifications specified in the statute under consideration.
If the bill had been so drawn as to apply to all stage corporations in cities of the first class that had been in operation for five years, then it could be said that it was a case of classification within the Constitution. To benefit, however, this particular corporation, it was necessary further to whittle down the scope of its application by adding conditions (to quote the language of the Court of Appeals in Matter of Mayor, etc., of New York [Elm Street], supra) “ so circumscribed and narrow that the class subjected to the statute is one in name and nothing else.” It is those additional features which reveal so palpable an evasion of the Constitution as should render it unsuccessful.
The leading case in support of our conclusion, cited as still good authority in Matter of Mayor, etc., of New York (Elm Street) {supra), is Matter of Henneberger (155 N. Y. 420), where it was said: “ In passing upon a statute, its validity or invalidity, under the constitutional provision, depends upon the special circumstances of the case; which, therefore, can constitute no precedent, except and unless those circumstances are seen to exist in and, therefore, to vitiate another case. * * * While an act might be general, if it affected all towns of a class and that class was based on population, or some other condition, which might be recognized as possibly common to a class, or which might permit of classification; if it contain such added limitations as to restrict its operation to what must always be, in the nature of the case, a very limited number of specified localities, if not, in fact, one, then it is local within the constitutional sense.”
*413We are referred to no authority, and we know of none, that overrules this statement of the law upon the question before us. Neither can it be successfully gainsaid, in view of the many tokens of identification above pointed out, unnecessary for reasonable classification, that the act now under consideration contains such added limitations to the conditions of classification as to restrict its operation to a limited number of localities, if not, in fact, one, and hence is local within the constitutional sense. Again to quote from Matter of Mayor, etc., of New York (Elm Street) (supra): “ We close our eyes to realities if we do not see in this act the marks of legislation that is special and local in terms and in effect. This group of conditions so unusual and particular is precisely fitted to the [defendant’s] case, and only by a most singular coincidence could be fitted to any other. If we may not say of such a coincidence that it is literally impossible, at least we may say that one would be surprising, and several would be marvelous. An act is not general when the class established by its provisions is at once so narrow and so arbitrary that duplication of its content is to be ranked as an unexpected freak of chance, a turn of the wheel of fortune defying probabilities.”
Defendant cites as sustaining a contrary view: Matter of N. Y. Elevated R. R. Co. (70 N. Y. 327); People ex rel. Clauson v. Newburgh, etc., Plank Road Co. (86 id. 1); People ex rel. N. Y. Elec. Lines Co. v. Squire (107 id. 593); Matter of Buffalo Traction Co. (25 App. Div. 447; affd., without opinion, 155 N. Y. 700); Kittinger v. Buffalo Traction Co. (160 id. 377); People v. Dunn (157 id. 528); Matter of Metz v. Maddox (121 App. Div. 147; revd., 189 N. Y. 460), and other cases.
Matter of N. Y. Elevated R. R. Co. (supra) held that a local act which did not confer any new franchise, but simply confirmed and regulated franchises previously possessed by the company’s predecessor, was not unconstitutional as in violation of article 3, section 18, of the Constitution, prohibiting a private or local bill granting to any corporation the right to lay down railroad tracks, or any exclusive privilege or franchise. In that respect the decision has no application to the present case. It further held that a law (the Rapid Transit Act) authorizing the construction of steam railways in all the counties and cities of the State, was not local because one of its sections provided that the Commissioners appointed pursuant to its provisions were given the power to fix and determine the route or routes by which any elevated steam railway “ now in actual operation ” may connect with other railways or ferries upon certain conditions, nor because there was but one elevated railway in actual operation at the time of the passage of the act. *414This, however, as appears frcm the opinion, was held in connection with the fact that the section in question was not a separate and independent act, but was embodied in a general scheme for the construction of elevated and underground steam railways, and was to be so treated. As was there said: “ It provides for the formation of new companies for their construction; and where a route designated by the commissioners is coincident with a route upon which an existing company is authorized to construct, such company may construct its road under the act, and any company having an elevated railway in actual operation may construct the connections specified. The act is thus made applicable to companies to be formed, and to existing companies, and is thus made as general as it can be. In any case the constructing company is to comply with the plans prescribed by the commissioners. By what rule of construction are the provisions applicable to existing companies isolated from the rest of the act? They are an appropriate part of the general scheme, and it could make no difference whether there was one or many existing companies. The existing companies have no exclusive privileges or functions conferred. They are simply placed on a footing of equality with new companies which may be formed under the act.” Such qualification robs this case of all force as a precedent in defendant's favor.
In People ex rel. Clauson v. Newburgh, etc., Plank Road Co. (supra) an act passed in 1876 authorized turnpike and plankroad companies to extend their charters, so far as related to the companies therein specified, i. e., those that had operated for twenty years “ last past ” over three miles in length or not less than a third of the original route — and abrogated all other modes prescribed by former acts for extending such charters, and furnished the only mode in which the extension could be had. The two counties of Kings and Orange were exempted from the operation of said act. By chapter 253 of the Laws of 1879 said act of 1876 was amended by extending its operation to the county of Orange. Held, that the act of 1876 was not a local act, and the amendment extending its application was not a local act; but that, if they were local acts, it would seem they would not offend against the Constitution (Art. 3, § 16).
It may be observed that in so holding the court had no occasion to, and did not, consider the effect of the words “ twenty years last past ” upon the constitutionality of the act. The defendant whose rights were being passed upon had been in existence for twenty-six years prior to the passage of the act, and that question was not raised. If it had been raised, it would have been immaterial, because the act applied to all but two counties of the State, and *415all the court had to determine was whether that made it a local act. Upon determining that that circumstance did not render it a local act, the circumstance that it applied to all companies which had managed and operated turnpike and plank roads for twenty-years “ last past ” could not affect its constitutionality one way or the other. The statement that if the acts in question were local acts, they would not offend against article 3, section 16, of the Constitution was not based upon any ground stated in the opinion; it would seem to be based on the view that the act contained but one subject and that the one expressed in its title, but as it was unnecessary so to hold, this case cannot have any bearing upon the question here involved.
People ex rel. N. Y. Elec. Lines Co. v. Squire (supra) related to an entirely different situation from that here presented, and neither states nor holds anything contrary to any view herein expressed.
Matter of Buffalo Traction Co. (supra) held that an act which by its terms was limited to cities of the first class was not a local bill merely because there existed only one corporation to which it could apply. This is not disputed, and, moreover, it is not a question that is involved in this case.
Kittinger v. Buffalo Traction Co. (supra) was a companion case to Matter of Buffalo Traction Co. (supra), relating to the same statute. It was held that the additional limitations present in the Henneberger Case (supra) were there absent, and, therefore, the fact that the act affected only the city of Buffalo and one corporation in that city, did not make it a local law, since there was no proof in the statute itself of a legislative intent to confine its operation to a particular locality in the face of the constitutional provision. This is easily distinguishable from the present case, where the intent to confine the operation of the act to one city and to one corporation therein appears from the number of limiting conditions above pointed out, which were entirely unnecessary for reasonable classification and good only for identification.
In People v. Dunn (supra) the constitutionality of an act providing for a special jury in criminal cases in each county having a certain population was considered; and it was held that the fact that the application of the act is restricted to “ each county of the State having a population of five hundred thousand or more ” does not render it a local bill within the meaning of the constitutional prohibition (Art. 3, § 18) against the passage of any local bill as to selecting, drawing, summoning or impaneling jurors. All that was said in that case on the subject of constitutionality or in relation *416to the Henneberger case does not affect the soundness of the decision or opinion in the latter case or permit this court to disregard its authority.
In Matter of Metz v. Maddox (supra) the Appellate Division decided that an act (Laws of 1907, chap. 538) authorizing a judicial recount and recanvass of votes cast for mayor in 1905 in cities of the first class does not offend article 2, section 6, of the Constitution, requiring that all laws creating boards or officers for counting votes cast at elections shall secure equal representation of the two largest political parties, for the constitutional provision has no application to a judicial review of an election contest. On appeal to the Court of Appeals, this determination was reversed, and it Was held that the act was unconstitutional, in that the proceeding authorized is either a recanvass of the votes cast for the mayor or is a judicial hearing and determination of the title of the respective candidates for that office; if a recanvass, it contravenes section 6 of article 2 of the Constitution, providing for a recanvass by a bipartisan board, which a court is not; if a judicial determination of the title to the office, it contravenes section 2 of article 1 of the Constitution, providing for a trial by jury “ in all cases in which it has been heretofore used,” of which an action of quo warranto is one. Since that was all that was decided in that case, it does not touch the questions here involved.
The other cases cited by defendant on the subject of constitutionality have been examined, but they either have no application to the question here involved or are clearly distinguishable because of the special circumstances which prevent them from becoming a precedent here. Indeed, in invoking judicial authority for its contention, defendant seems to have lost sight of the conditions under which one decided case can be deemed to control the decision of another'. Decisions are precedents only where the essential facts are similar; and in construing the opinion of a court, it is limited by the facts of the case under consideration when it was rendered, and not extended to cases where different facts exist. Furthermore, the opinion of a court must be tested as a whole, and whatever was said must be tested by reference to the actual question then before the court. Applying these elementary rules, the cases cited by defendant, as above pointed out, differing as they do in the essential facts under consideration, present essentially different questions for determination. Therefore, whatever may be thought of Matter of Henneberger (supra), as any authority in support of the view that the act is unconstitutional, it is apparent that the cases cited' by defendant are of no avail as precedents in this case.
*417Concluding, therefore, that chapter 657 of the Laws of 1900 was a local act, the next question is, does it embrace in its title more than one subject?
The title of the act is: “ An Act to amend the Transportation Corporations Law by the addition thereto of a new section in relation to existing routes and extensions.” Thus, the title relates to certain routes and ways of travel already in existence for stage coaches, and extensions thereof. This language has clearly nothing to do with rates of fare to be charged on any existing route or extension. And yet, tucked away in the statute itself is a right to charge a fare not exceeding ten cents per passenger over the whole or any part of the routes owned or operated by a corporation answering the specification of the statute. Under this provision, defendant, the only one that could fulfill all the conditions specified in the act as to a corporation entitled to its benefits, has claimed and exercised the right to charge a fare of ten cents per passenger over its original route as well as the extensions thereof which it has obtained, although the act (Laws of 1886, chap. 536) under which it and its predecessor in title had operated limited the rate of fare to five cents.
Under an act so entitled, we might expect to find that such a corporation would be authorized to abandon one thoroughfare and transfer its routes to another thoroughfare. In other words, we might expect that the corporation here under consideration might abandon Fifth avenue altogether and run up and down Broadway. But certainly it could not be expected from a reference in the title to stage routes and extensions that a corporation which took any extension of its routes pursuant to the act could by any stretch of the imagination become entitled to a rate of fare different from that already fixed by law over the same route theretofore traversed.
Furthermore, courts should not be entirely blind to the facts of common everyday experience. From the earliest times, the subject of a rate of fare to be charged by a transportation company has been of the greatest political concern. Campaigns and policies have been victorious or defeated by the injection of such an issue. Yet, here it is solemnly urged that a right to change the fare may be held to be within a title which is expressly confined to the routes to be traversed.
We are also of opinion that by permitting the operation of stages and omnibuses “ propelled by electricity or any other motive power,” ■ still another subject was embraced in the act. This provision allowed a change of motive power from horse-drawn stages, as used theretofore, to the modern largei, high-powered and more rapid *418automobile stages, thus adding an increased burden upon the highways and greater dangers to the public using them. It also allowed a change to “ any other motive power ” which inventive genius may bring forth, however novel or fantastic it may be, so long as approval for it can be obtained from an official in no way responsible to the citizens of the municipality. Such an enlargement of rights theretofore conferred could not have been made except by statute. - And yet defendant claims that, assuming this act to be local, such an innovation does not infringe the Constitution by adding any new subject other than that expressed in the title. To state such a proposition is to condemn it.
Matter of N. Y. Elevated R. R. Co. {supra) holds nothing to the contrary of this in stating (p. 338): “ So a bill may be passed giving a private railroad corporation the right to use a new or different motive power, provided the right be not exclusive.” The court was there passing upon a section of the Constitution prohibiting the passage of a local bill granting to any corporation the right to lay down railroad tracks or any exclusive privilege or franchise; and its statement means nothing further than that, since the bill there considered did not give the railroad company any exclusive privilege to the new motive power, it did not violate that section of the Constitution.
There are other provisions in the act which are not expressed in the title, but enough has been here set forth to show that there were material subjects which were not included in the subject expressed in the title. In other words, in violation of the Constitution, the bill, being local, embraced more than one subject; and, further, in violation of the Constitution, those other subjects were not expressed in the title. If they had been there expressed, the same taint of unconstitutionality would still linger because, since but one subject could be embraced in the bill, only one could be expressed in the title.
The conclusion which we have thus reached that chapter 657 of the Laws of 1900 was unconstitutional renders it unnecessary to discuss at any length the claim of the defendant that it supersedes pro tanto the provisions of the Greater New York Charter with respéct to the consents of local authorities or property owners; or defendant’s contention that said act in turn was not superseded by one (Laws of 1905, chap. 629) amending section 242 of said charter, which conferred upon the board of estimate and apportionment the exclusive power to grant franchises involving the occupation or use of any of the city streets. Since there was no express repeal of the charter provisions by the act of 1900, any superseding of them that was accomplished must have been by implication. *419Section 1618 of the charter then, as now, provided that “ this act or any section or provision thereof shall not be deemed to be repealed or amended by any act of the Legislature, unless it be so expressly stated, or the legislative intention to that effect is unmistakable.” Clearly, it would take more than an amendment (which is all that the act of 1900 purported to be) to an act which expressly provided that it had no application to the city of New York to indicate an unmistakable intent to repeal the whole existing scheme of law in the charter which completely covered the rights of the city to its own streets. And, since after 1913 the defendant obtained its extensions pursuant to the amendment of the charter made by chapter 629 of the Laws of 1905, thereby accepting its benefits, it should not be heard to claim that chapter 657 of the Laws of 1900 (assuming it ever had any validity as a statute) was not superseded by chapter 629 of the Laws of 1905.
The defendant, however, seeks to maintain that the franchises in dispute were ratified and confirmed by chapter 466 of the Laws of 1901. That statute, which revised the Greater New York Charter, continued sections 71 to 74 thereof and sections 1458 to 1460, relating to franchises generally and to franchises or privileges for operation of stages and omnibuses, without material change except the substitution of the board of aldermen for the municipal assembly as the franchise-granting power; but amended section 1461 (which had simply prohibited the running of stages in the city except in conformity with the preceding sections) by adding thereto the following: “ and no stage route shall after April first, nineteen hundred and one, be established or operated upon that portion of any street, avenue, road or highway in which a street surface railway or stage route is or shall be lawfully established, and in operation for a distance greater than one thousand feet, without first obtaining the consent of the corporation owning such railway or stage route, but nothing in this act shall be construed to affect the right possessed by any company to operate stage routes or extensions then established and in lawful operation, nor to affect any authority conferred upon any such company to acquire rights and privileges under chapter six hundred and fifty-seven of the laws cf nineteen hundred, nor to affect any acts heretofore done thereunder.”
Pursuant to the assumed authority conferred by chapter 657 of the Laws of 1900, the defendant had made written application in July, 1900, to the State Board of Railroad Commissioners for its approval of the extensions of route set forth in said application; it received the certificate of approval thereof from said Board in August, 1900, and filed its formal acceptance of the extensions *420specified in said approval on August 4, 1900. After the passage of the act of 1901, defendant applied for like approval of further extensions, received a like certificate, and filed a like acceptance. When the operation of said extensions was commenced is not made to appear.
If chapter 657 of the Laws of 1900 was valid, nothing done under its authority needed any legislative confirmation or ratification. On the other hand, if, as we believe, it was invalid because unconstitutional, the court would not be justified in holding that the proviso or saving clause contained in section 1461 of the charter, as amended by the act of 1901, had the effect of rendering valid anything done under said unconstitutional statute. Such clause Was not the recognition of any right or authority conferred by the prior act of 1900, because the latter, being unconstitutional, had conferred none. It was a mere saving of such right or authority as might have been conferred, if any. That was not sufficient to create the right or authority which the act of 1900, because unconstitutional, had failed to create. Neither was it sufficient to ratify or confirm illegal acts done under the void statute. Its language falls far short of indicating any such intention; and it was a case where plain words were necessary in order to effectuate such an intention, if it in fact existed. The purpose will not be assumed to have existed in the absence of terms in the statute indicating the existence of the purpose. Furthermore, it would be sad for the rights protected by the Constitution if, after they were violated, the Legislature could legalize such violation by ratification. Again, it is difficult to see how a statute which provides that it shall have no effect upon any rights or authority to acquire rights under another, statute, or any acts done thereunder, can be a confirmation of any such rights or authority or acts.
The defendant cites no adjudicated case in support of its contention in this respect. If authority be needed for what we regard as the rather obvious conclusion that the act of 1901 was not a confirmation or ratification of anything that had been done or thereafter would be done pursuant to the act of 1900, support may be found by analogy in the following cases: Smith v. Mayor, etc., of N. Y. City (1 Hun, 56); Kingsley v. City of Brooklyn (78 N. Y. 200); Matter of Trustees of Union College (129 id. 308); People ex rel. Hannan v. Board of Health (153 id. 513).
The defendant further urges that plaintiff is estopped from questioning the validity of the act of 1900 and from seeking to enjoin the defendant from operating under the certificates issued pursuant thereto, because it has paid to the city large sums of money in license fees, taxes and charges for a number of years in *421consequence of a failure of either side to take any proceedings to test the validity of the franchises.
It is a general principle, as defendant correctly claims, that a person or corporation accepting or claiming the benefit of a statute will not be heard to question its constitutionality; and this rule has been applied in exceptional cases to municipal corporations. (Matter of City of Syracuse, 224 N. Y. 201; Matter of Hand Street, 55 Hun, 132; People ex rel. Lasher v. City of New York, 134 App. Div. 75; affd., 198 N. Y. 439.) Yet we cannot hold that the conclusion follows which the defendant asks the court to adopt.
No estoppel was created against the city by the mere granting to defendant of the extensions, but, if at all, by their operation without objection on the part of the city and by its acceptance of the fees and charges paid by defendant as incident to such operation. The extensions claimed by the defendant were obtained in 1900, 1901 and 1912 in the manner provided by the act, but, as above stated, it does not appear when the actual operation of them was commenced. And in a submission of controversy no inference of fact can be drawn from the agreed statement of facts. Therefore, the date of the alleged estoppel of the city cannot be fixed, and the defendant’s claim that it has existed for over thirty years is not sustained. The stipulated facts, however, are helpful, if not in fixing the date of commencement of operation, at least in fixing the date prior to which no estoppel on the part of the city can be predicated.
The act of 1900 required that the company obtaining extensions of its stage routes should pay to the city, in addition to the license fees already in force, five per cent of the gross receipts only “ on operation of such extensions.” The amount of license fees paid by defendant prior to 1902 is not shown by the record. For the years 1902, 1903, 1904 it shows that fifty buses were in operation. For the next four years the number appears to have been only thirty-six; the next two years, sixty, the next year, eighty, and in 1912, eighty-one buses. Allowing for normal increase of traffic over the original route, very little, if any, operation of the extensions can be claimed until after 1912.
In 1912 the corporation counsel delivered an opinion to the board of estimate and apportionment, at its request, that in view of chapter 657 of the Laws of 1900, enacting section 23 of the Transportation Corporations Law, and chapter 629 of the Laws of 1905, amending section 242 of the city charter, while a railroad corporation extending its route is required to obtain the consent of the local authorities, a stage coach corporation previously operat*422ing for five years is under no such obligation, and that relief from such an “ anomaly ” could only be obtained by legislation.
In 1913 the board of estimate and apportionment submitted to the corporation counsel certain questions with respect to the validity or invalidity of the extensions obtained by defendant under chapter 657 of the Laws of 1900. His reply is not in the record. In 1917 the number of buses appears to have been 162, double the number used in 1912; and the five per cent of gross receipts (which was about $350 less in 1907 than in 1902) had increased in 1917 by more than $66,000 over such percentage for 1913.
In 1917, in reply to the same questions as previously submitted by the board of estimate and apportionment, the corporation counsel rendered an opinion that the act of 1900 was unconstitutional, and that the extensions specified in the certificates granted under said act were invalid. The defendant was so notified and requested to apply for a proper franchise. The defendant declined to do so, but, as above noticed, no one until the present proceeding took any action to test the validity of the defendant’s operations. From and after 1913, however, as above mentioned, defendant made its applications for further extensions to the board of estimate and apportionment (the procedure provided by chapter 695 of the Laws of 1905, amending section 242 of the charter), and not in pursuance of the act of 1900, as theretofore. This change of policy does not indicate reliance by defendant upon said act of 1900 after 1913. ■
Of the large sums of money expended by defendant, which it claims was in consequence of acquiescence of the city in its operations, by far the greater part thereof was subsequent to 1913, the date when the character of defendant’s rights under the act of 1900 was first questioned by the city authorities, and the date on and after which defendant no longer invoked said act in obtaining further extensions. It is, therefore, apparent that the claimed acquiescence of the city cannot relate back prior to 1913. As in 1912 the city was questioning defendant’s rights, and in 1913 the defendant abandoned reliance upon the act of 1900 for obtaining further extensions, and in 1917 the city definitely took the stand that defendant’s operation under the act of 1900 was invalid and so notified the defendant, such acquiescence as there was during the four years from 1913 to 1917 could not amount to an estoppel. Thus the claimed acquiescence of the city for thirty-two years shrinks to at most four years, for from 1917 onward, though the defendant, being put upon notice, might have taken proceedings to protect its challenged right, none were instituted. The submission fails to show what part of the payments made to the *423city throughout the entire period were on account of operation of the extensions here involved. As in 1913 they suddenly increased and kept increasing, it might be held, if speculation were permissible, that such increase was entirely due to the operation of the extensions obtained upon application to the board of estimate and apportionment, as undoubtedly a large portion of it was. But as even inference, let alone speculation, one way or the other is prohibited it should not be indulged, and to say that defendant paid any large sums on account of operation of the extensions obtained under the act of 1900 is wholly warrantable. The fact that defendant paid its taxes and other charges while profiting by the privileges unlawfully exercised cannot condone its failure to heed the warning of the plaintiff, given fifteen years ago, that it was without a proper franchise and should apply for one without undue delay, nor estop the plaintiff from receiving the relief which it now seeks.
We agree with the majority opinion in its conclusions adverse to defendant’s contentions on the questions of res adjudicóla, laches, limitations and estoppel.
This cause assumes unusual importance because the validity or non-validity of the franchise in question will have a vital bearing upon the present transportation conditions in the city of New York, particularly as modem conditions strongly suggest the substitution of bus transportation in place of street railways. The problem as a practical matter concerns the terms upon which the city shall agree with the transportation companies for the use of the city streets. No prejudice can be justly urged by the defendant, for it has had the benefit of the use of the streets of the city of New York for upwards of thirty years.
A corporation should not be permitted to profit by legislation which it alone could have been interested in securing and under which it alone claims rights in the New York city streets without just compensation and in disregard of the rights of the citizens. The people of the New York city should be protected against such subtle legislation and its results. Such legislation is neither fair nor just and should not meet with the approval of the court.
The plaintiff, therefore, in our opinion, is entitled to judgment as prayed for in the submission.
Martin, J., concurs.
Judgment directed for defendant in accordance with the prevailing opinion. Settle order on notice.