The Gilbert Elevated Railroad Company was, by its charter, authorized to build an elevated road, according to the plans therein designated. The charter passed in 1872 was amended by acts .passed in 1873 and 1874 but the principle of construction was not changed in any respect. It is clear, therefore, that, until the passage of the so called rapid transit act of 1875, if the company constructed any road, it would necessarily be upon the plan known as the Gilbert elevated railroad; but the franchise was secured and could be employed in the manner designated. The company, in other words, was created with all necessary powers ; none of which were warped or destroyed. Jt was an existing company, requiring *308no further legislation to give it either vitality or the necessary authority to carry out the purposes of its incorporation; it was intact, and a power. The thirty-sixth section of the rapid transit act recognized this indirectly. It provides that, whenever the route or routes determined upon by the commissioners to be appointed, coincide with the route or routes covered by the charter of an existing corporation, formed for the purpose provided for by the act, such corporation should have the like power to construct and operate such railway or railways, upon the fulfillment of the requirements and conditions imposed by said commissioners, as a corporation specially formed under the act, provided such corporation had not forfeited its charter or failed to comply with the provisions thereof requiring the construction of a road or roads within the time prescribed by its charter.
The evident design of this provision was to prevent any conflict between existing but unexecuted charters and companies to be formed under the act; and, at all events, to secure to the people the advantages* of an elevated road over the route selected. If the chartered company chose to adopt the route, they could do it by virtue of a quasi prior claim founded upon a vested right; and if not, then they abandoned the opportunity to avail themselves of it, and another could use it. They were not to be permitted, by a claim only, to prevent the consummation of rapid transit, which was the chief object of the act. It conferred the right to adopt the model prescribed by the commissioners to be appointed, upon fulfillment of the requirements and conditions imposed by them. It was not a right given to create or construct a road or railway, for that had already been granted and secured by the charter of the company, but an exercise of the right in a manner other and different — it might be in model — from that required by its charter. It authorized a change in engineering and in the mechanical details of the superstructure, if the company complied with the conditions lawfully imposed by the act. And, though magnified into a supposed fatal departure from the original charter, because of a supposed conflict with the provisions of the Constitution, it is in effect nothing more than this. The act of 1815 is not a local act, we have so declared; the charter of the Gilbert elevated road was predicated of the general laws with which it was *309required to comply. This general act —■ the so called rapid transit act — recognized the existence of the company, as already suggested, and by a general, not special provision, protected it against the consequences which might issue if its existing authority, legally and constitutionally conferred, was by conflict endangered or interfered with; and to make its exercise certain, extended to it the right to accept the route established by the commissioners in compliance with their requirements. The effect was not to change the entire character of the franchise; it was to be an elevated road, though different perhaps in its construction, mode of transit and propelling power. The legislature had reserved to itself, by section 10 of the act of incorporation, the power to alter, amend or repeal the charter, and had the undoubted right, therefore, to make such modifications in the structure as were deemed essential either to the public safety, the better preservation of the rights of the property owner, or the more successful accomplishment of the end in view by the act of incorporation.
The question as to such power has been considered and passed upon. (Suydam v. Moore, 8 Barb., 355.) The change from a tubular to an open or covered railway would be within this power. It would affect the model to be employed— the mode in which the franchise was to be consummated, but not otherwise. The right to the benefit and advantage of the result would be preserved and the franchise therefore held intact. The legislature have in many instances made substantial changes or modifications of existing charters, by which new elements were introduced, new features engrafted upon them, without violating constitutional provisions prohibiting new creations of a kindred character. (Mosier v. Hilton, 15 Barb., 663; Syracuse City Bank v. Davis, 16 id., 188; see, also, Zabriskie v. Hackensack and N. Y. Railroad Co., 3 C. E. Green, 178, 192; Veazie v. Mayo, 45 Maine, 562; Buffalo, etc., Railroad v. Dudley, 14 N. Y., 348.) In Mosier v. Milton {supra) it appeared that an act was passed authorizing an existing railroad company to sell its property and franchises, empowering the purchaser to issue stock and choose directors to manage and organize the corporation by any new name, and declaring that when so organized the company should have the same powers, etc., as the existing company, and it was held not to create a new corporation. *310The court said : “ It is also objected that the act of 1850, for the relief of the creditors of the railroad company, is in conflict with section 1 of article 8 of the Constitution. It is insisted that the legislature, by the act of 1850, created a railroad corporation by a special act. * * * The act of 1850 created no new corporation. The Lockport and Niagara Falls Railroad Company was incorporated in 1834; its charter had several times been amended, and it possessed property, franchises, rights and privileges which, under, the act of 1850, were sold; and the company was organized anew by choosing new directors and by changing its name. It is a continuation of the first corporation under a new name.”
In the ease of The Syracuse v. City Bank v. Davis (supra), it appeared that a bank having been organized under a certificate insufficiently subscribed and acknowledged, an act was passed declaring that it should be deemed a valid corporation, notwithstanding any such defect. In an action by the bank against the indorsers of a note which it had discounted, it was held that the act in question did not create a banking association within article 8, section 4 of the Constitution.
The court said : “ It is scarcely necessary to notice the objection that this act of 1852 violates the Constitution by creating a corporation by a special charter. (Const. 1846, art. 8, § 4.) The act does not profess to create a corporation, it only remedies defects in one already created. The institution may be said to have the powers and rights of a bank doing business de facto, while its rights were imperfect de jure. The statute in question was of a class of acts, entitled to be most liberally construed, for the advancement of the public ■ welfare and the' promotion of individual rights.” ' (j
In Zabriskie v. Hackensack and New York Railroad Company (supra), the court said : “ The power is to alter or modify the act, and the true construction of this I hold to be an alteration of something contained in or ■ granted by the act. Any of the franchises granted may be altered —-the right to take land by condemnation, the right to take tolls or fare, or the amount to be taken. But the legislature had no right to impose upon the company any other duty, or any thing involving any other duty, than that attending the building a railroad from the Paterson road to Hackensack; *311any thing in the manner of doing that they had a right to change.”
In Veazie v. Mayo, an act prohibiting any railroad from crossing any city street without the consent of the city, in writing, stating the manner in which the crossing shall be made, was held to be “ only the exercise of that police power, which is always necessarily retained by the people in their sovereign capacity, for the security of the public safety, and of which they cannot be divested by legislative enactments or chartered immunities.”
In the case of The Buffalo Railroad v. Dudley (14 N. Y., 336), it appeared that an act of the legislature amended the charter of "a railroad company, by doubling its capital, adding fifty per cent to its authorized length, changing its terminus from a village to a city thirty miles distant, and altering its corporate name. The court said: “ The change was not fundamental. The new powers conferred are identical in kind with those originally given. They are enlarged merely, the general objects and purposes of the corporation remaining still the same. It may be admitted that, under this reserved power to alter and repeal, the legislature would have no right to change the fundamental character of the corporation, and convert it into a different legal being, for instance, a banking corporation, without absolving those who did not choose to be bound. But this they have not attempted to do. The additional powers are of the same character.”
The provision under discussion in the act of 1875 is not an amendment of the Gilbert elevated railroad act. The effect of it, so far as it relates to the company, is to declare the route it may employ in the use of its franchise. It neither changes its character nor enlarges its power or franchise. It recognizes the rights of the company as existing by a general provision, and protects them, and by so doing prevents a conflict which might otherwise arise from the exercise of these rights, secured, as suggested by the act of incorporation, and those amendatory thereof. It does not purport to be an amendment of the act of incorporation, in terms or in effect. It is a recognition, and not a creation in substance or effect. The body of the franchise remains the same, although the mode of its use has been changed in some respects. This change the legislature reserved the right to make, and have made it. It *312differs, therefore, essentially, from the cases in Iowa and Ohio to which we were referred as illustrations of the proposition that the act of 1875 relating to the company was repugnant to the Constitution. In Atkinson v. The Marietta and Cincinnati Railroad Company (15 Ohio St., 21), which is one of -these cases, the court, under a Constitution which declares that the general assembly shall pass no special act confirming corporate power, held, that the charter of the Marietta and Cincinnati Railroad Company did not authorize it to mortgage or sell its corporate franchise; and that a judicial sale upon a mortgage executed by it would not invest ” the purchaser with any corporate capacity whatever ; and that a special act of the general assembly undertaking to give effect to the sale, and authorizing the purchasers to reorganize, create a new stock, and elect another board of trustees, was, in substance and effect, an attempt to create a corporation and to confer powers by a special act.
The answer to that case is, that an act of our legislature containing, by amendment, authority to sell the franchise, rights and privileges of a railroad corporation, and to invest the purchasers at once with them, was held not to. be repugnant to that provision of our Constitution which declared that corporations might be formed under general laws, but should not be created by special act except for municipal purposes. It was said by the court that the act was a continuation of the first corporation, although, by the sale, the company was organized anew by choosing new directors and by changing its name. (Mosier v. Hilton, supra.)
In the case of State of Ohio v. City of Cincinnati (20 Ohio St., 18), another of the cases referred to, it’ appeared that the general assembly, by an act passed by them, assumed to confer upon the corporation of Cincinnati additional powers. On certain conditions the act purported to confer on it the powers of municipal government, the power of political regulation and of judicial jurisdiction, and taxation and assessment, over a number of outlying incorporated suburban villages and other territory not before within .the limits of the city, and it was declared repugnant to the provision of the Constitution prohibiting the passage of a special act conferring corporate power. The statement of that case shows that it in no respect corresponds with this. The act was a flagrant *313violation of the Constitution. In the case of Ex parte Samuel Fritz (9 Iowa., 30), it appeared that an act was passed amendatory of the act to incorporate the city of Davenport, by which the office of police magistrate was abolished, and it was held to be invalid because special laws for the incorporation of cities and towns were prohibited by the Constitution of the State. There are many suggestions as to the authority of the legislature to amend an act the passage of which would, under the existing Constitution, be prohibited, but the act, so far as revealed in the case, was an attempt not to create or incorporate one, but to change the judicial system of one in existence with vested rights. The case is an authority for the State in which it was decided. It can have no extra territorial force save in a controversy presenting substantially the same elements. It must be borne in mind that in this case, as in the other, the original act was sought to be amended. Here there is no amendment under consideration. It must also be kept in view that, by a well established rule in this State, an act of the legislature will not be' declared unconstitutional unless it is clearly repugnant to some provision of the Constitution. The rule is, indeed, too well settled to require the citation of cases to sustain the assertion that it is so. In this case the clear violation of a constitutional provision is not only not shown, but it seems to be clear, upon general principles and adjudged cases, that none has been committed.
Having arrived at these conclusions, which cover the vital questions in this matter, in my judgment, I cannot concur with Justice DANIELS. We differ too much in our views to make a concurrence possible. Rapid transit, it may be said, in conclusion, is one of the objects of our municipal life which our people regard as of great importance. It involves a public improvement, and public improvements always involve sacrifice. The greatest good of the greatest number is justly the grand purpose of good government, and the comparatively few who are injured are required to submit to the laws of their rulers.
It is the consciousness that there are some of our people who, by the construction of the Gilbert Elevated Railway as contemplated, will be injured in their estates, if not ultimately, at least in the beginning, which makes the consideration of this matter an *314unpleasant duty, and impresses the conviction that if means to award ample compensation to property owners along the route had been provided, our sense of justice would have been gratified The law as it exists does not require this from the company, and the court can neither legislate nor undo legislation which does not conflict with the provisions of the Constitution ; and when called upon to declare whether an act of the legislature is or is not valid, must be governed, as it is, by the principles applicable and controlling. It follows from these views that the application should be granted.
Ordered accordingly.
Davis, P. J.; concurred.