(dissenting).
This is a motion to confirm the determination of the commissioners appointed by this court in the above entitled matter, namely, that the railway named ought to be constructed. The motion was properly made by the railway company, and it was made at a proper time. (Elevated R. R. Cases, 70 N. Y., 327, et seq.)
The principal objections to such confirmation, are : 1. That said railway would inflict great and irreparable injury upon the -interests of the owners of the property which abuts upon the streets selected for the routes thereof, and upon the public interests of the city of Brooklyn ; and 2. That the proceedings of the commissioners appointed by the mayor of said city to fix and determine the routes of said railway were not, in several particulars, comformable to the statute under which they acted. No complaint has been made of the conduct of the commissioners of the court, or of their proceedings in any material respect.
It seems to me to be sufficient to say, in regard to the first objection, that the public authorities, to whom the constitution has specially confided the defence of the public interests involved in this subject, have consented to the construction of the railway, and that the mayor’s commission, a body specially selected pursuant to law and which the Legislature interposed as a protection of both public and private interests, determined that there is a necessity for the railway in question. That determination is equivalent to one made by the Legislature. Such is plainly the effect of the statute which governs the subject, and so the Court of Appeals held in the New York Elevated Railway Case (70 N. Y., 344). Neither the constitution nor any statute has conferred upon the court the power of reviewing that determination. The *229determination of the commissioners' of this court that such, railway ought to be constructed should, therefore, be confirmed, unless we have power to review the evidence before us, and such evidence is sufficient to show that, although a necessity exists for some elevated railway, the particular one in question ought not to be constructed. I think that the evidence is quite insufficient for that purpose. It rests principally upon opinions in respect to the consequences which it is supposed will follow the construction of a railway not yet begun. Such opinions are rather in the nature of prophecy than of evidence. Nor is there a balance of opinion against the determination of the commissioners. On the contrary, the preponderance of testimony (if testimony it can be called) is the other way. The record discloses an entire unanimity of opinion in favor of “rapid transit,” and all, or nearly all, the witnesses agree that it would be beneficial to the city. The gist of the objection appears to be to the location of a steam railway in some of the streets selected by the mayor’s commission. n But it is apparent that if the construction of the railway through the streets selected would produce the consequences apprehended, a construction of such a railway in other streets would produce similar consequences. The injury to private owners and to the public interests, if any should accrue, would be varied in degree only ; so that this objection after all is merely an appeal for the protection of one set of interests at the expense of others. For the court could not lawfully frustrate the statute which authorizes the construction of elevated railways by making a decision which, if carried to its logical consequence, would exclude railways from the city entirely. The sustaining of this objection could create a precedent which, if followed, would produce that result. It is ui’ged that the absence of any provision for compensating abutting owners is a good reason why the report shoiild not be confirmed. The answer to this suggestion is : (1.) That the constitution provides that no private property can be taken for the use of the railway, without making compensation therefor ; and (2.) That if the constitution does not entitle the owners to compensation for property injuriously affected, but not actually taken (a question which we are not called upon to decide), the lack of any provision for compensating them is attributable to the *230Legislature alone. In the absence of a constitutional requirement on this subject, it was the province of the Legislature exclusively to determine whether compensation should be made or not. To hold that the statute ought not to be enforced, because the Legislature failed in their duty by omitting a provision for compensation, would be an unwarrantable assumption of legislative functions. The argument that the power conferred upon the court was intended as a shield against reckless or corrupt legislation is, I think, unfounded. The intention to make such a fundamental change in the distribution of powers by the constitution is nowhere manifested. The language of the amendment of the constitution in 1875 is perfectly plain, and it affords no coimtenance to the idea that such a fundamental change was intended by the people. The proceedings of the bodies, under whose auspices the amendment was framed, are not satisfactory guides to any interpretation thereof different from that which the words import. For, as the constitution does not derive its force from the body which framed, but from the people who adopted it, the intent to be ascertained is that of the people, and it is not to be supposed that they adopted it in any other sense than that which is obvious to the common understanding of men. (Cool. Const. Lim., 66; Sedg. Const. Law.) I think the intention of the people is sufficiently expressed. They intended to subject the report of the commissioners of the court to the same mode of review as the law then existing had provided for analogous cases, such as the laying out of streets and parks, the establishment of railroads and boulevards, the bonding of towns, etc., etc. The power to confirm or reject the report of the commissioners arises out of a simple enlargement of the jurisdiction of the court. It was formerly held that a similar power conferred in similar terms upon the court did not enlarge its jurisdiction, but merely made its members commissioners to execute the power. Matter of Beekman St., 20 Johns., 269; Matter of Mount Morris Square, 2 Hill, 14.) But that doctrine was a long time ago exploded, and it is now settled that in executing such a power the court acts as the court established by the constitution, and not as air inferior statutory tribunal. (Striker v. Kelly, 7 Hill, 9; Matter of Canal and Walker Sts., 2 Ker., 406; Matter of New York Central and Hudson *231River Railroad Company, 64 N. Y.. 60.) It follows that, in reviewing the action of the commissioners, the court must exercise judicial powers only, and in determining the questions presented must be governed by the rules of law applicable to the case. It cannot act as a commission to settle engineering questions or matters of administration or of public policy. The question whether the consent of the property owners ought to be given is one of administration merely. It depends solely upon the consideration of the public advantage on the one hand, and of injury to owners of private property on the other. Such a question cannot be subjected to the operation of abstract rules of law, but in the nature of things must be determined by the judgment of practical men. To enter upon considerations of that kind would be a palpable usurpation of the functions of the two boards of commissioners. All that the court can do is to confine the commissioners within the limits of the powers conferred upon them, to decide whether their proceedings have been just, impartial and conformable to law, and whether their determination was affected by any improper evidence or by other illegal means. The language of the constitution and of the statute exclude the idea that the court may reject the determination of the commissioners honestly made, because it differs in opinion from them. Both require that the actual determination shall be made by the commissioners. The court can only confirm it; that is, make it firm or valid, or refuse to confirm it. In deciding that question the court cannot, from the nature of the case, review the exercise fairly and in good faith by the commissioners of their judgment in making their determination. Such judgment may be légally made up partly by their own observation of the routes of the railway, and partly by the testimony of witnesses and statements made before them. “ The senses of the commissioners are made to testify. The information thus acquired it is impossible to bring before the coui't of review. The commissioners, too, are selected with reference to their general knowledge, qualifying them to judge discreetly upon the matters submitted to them. Unlike a jury they are restricted to no particular sources of information. They may collect information in all the ways which a prudent man usually takes to satisfy his own mind, but at last *232they must be governed by their own judgment.” In reviewing their report the court can act only upon facts. There must be something like demonstration that the commissioners have fallen into error' to justify a refusal to confirm their report. (In re William and Anthony streets, 19 Wend., 694; Troy and Boston Railroad Company v. Lee, 13 Barb., 171.) Nor can the court substitute its own judgment lor that of the commissioners, no matter how strong its convictions may be that the commissioners should have come to a different conclusion. The plain language of the constitution and of the statute shows that the people and the Legislature intended that the judgment of the commissioners appointed by -the court, made conformably to law, should be final and conclusive. These propositions, I think, have been adjudicated by the Court of Appeals in the Matter of the N. Y. Elevated R. R. Co. For the court there held (70 N. Y., 359) that “ whether the benefits to follow from the construction of the road were such as to counterbalance the injury which should be done to the private interests from its operation was a question properly before both sets of commissioners, and with their determination of it the court could not, or at least ought not to interfere.” That is the precise question which is primarily involved in this case. No doubt the power which the Legislature unquestionably possesses of authorizing the construction of elevated railways, like many other powers vested in them, is liable to great abuse. But supreme power must be vested somewhere. The old question, “.who shall guard the guardian,” has not yet received a satisfactory solution in any political system. In a representative government like ours, however, the only answer that can be given to it is, that the people must rely for protection upon the power which they possess, and may exert at short intervals, of choosing the persons who shall, from time .to time, be the guardians of their rights and interests.
The next objections are of a formal kind, relating to the proceedings before the mayor and to the action of the commissioners appointed by him. I am inclined to the opinion that such objections cannot be urged at this time, but that they have been waived by the omission to raise them in opposition to the appointment of the commissioners of this court. It is not necessary, however, to *233dispose of these objections upon that ground, as I am of opinion that none of them are well taken.
The verification of the application to the mayor is in the form usually adopted in like cases, and was, I think, sufficient. All that the statute requires is that the application shall be verified upon oath. It does not require the oath of each applicant, as in some analogous cases, e. g., the general highway act, where a certificate by the oath of twelve reputable freeholders is required. (2 R. S. [6th ed.], 152.) No doubt the Legislature intended the same kind of verification as is required by the general railroad act, namely, one according to the rules and practice of this court. The applicants all having one and the same interest, a verification by one was a compliance with such rules and practice. The statute does not require that the application shall show that the applicants were authorized to make it. The application, it is true, is required to be made by fifty reputable householders and taxpayers, but the statute does not prescribe the means by which the mayor shall ascertain that the applicants are of that class, and it is quite improbable that the Legislature intended that each applicant should make oath respecting his own repute. The mayor determined that the applicants were reputable householders and taxpayers. I think, therefore, that it must be presumed that the mayor either knew or ascertained that fact in some legal mode, although it is not stated in the application.
It appears that the application to the' mayor showed the need of a railway for passengers only, and that the appointment of commissioners made by him had reference to such a railway. The mayor’s commissioners, however, reported in favor of a road for the transportation of mails and freight as 'well as passengers. The language of the statute is disjunctive, and authorizes the appointment of commissioners whenever it shall appear that there is need of a railroad for passengers, mails or freight. The statute does not restrict the authority of the commissioners tq a railway adapted only to the purpose specified in the application. On the contrary, it invests them with full power and authority to do and provide, all that the statute directs them to do and provide, whether the application referred to all the purposes aforesaid or only one of them. Among the powers thus conferred upon the *234commissioners is that of forming a corporation, and the statute grants to the corporation so formed power to convey persons and property. In short, the mayor’s commissioners have the same powers whether the application for their appointment declares the need of a railway for the transportation of passengers, mails and freight, or óf passengers only. I am of opinion, therefore, that the variance between the application and the report of the commissioners is quite immaterial.
I think that the notice inviting the submission of plans was a sufficient compliance with the statute. It is headed by the usual designation of the office of the commissioners, giving the street and the number of the building in which it is situated, and it specifies the time when they will meet to decide upon the plan or plans for the construction of the railway. The statute makes nq provision for a hearing. Any person desiring to be present at the meeting could hardly be misled respecting the place designated therefor, and as no person had a right to be heard at the meeting, I think the statute required the notice to be given merely for the purpose of apprising the public when the time for presenting plans would end, and when the commissioners would decide upon them. Moreover, such provisions in statutes are directory only, and the law does not avoid subsequent proceedings under the same statute for a non-compliance therewith. (Cool. Const. Lim., 75 and cases cited ; Ma chant v. Langworthy, , 6 Hill, 646; Striker v. Kelly, 7 id., 24; People v. Cook, 14 Barb., 290; S. C., 8 N. Y., 67.)
It is objected that the commissioners did not locate the turnouts, stations, etc., of the railway. But the statute contains no such requirement.
Another objection relates to a supposed conflict between the plan for a railway fixed by the mayor’s commissioners, and the suggestions respecting the operation of the railway at particular places made by the commissioners of this court. This objection assumes that the report of the mayor’s commission requires that crossings shall be at the same grade, thus violating the statute, governing their action; that it fixes the height of the structure at crossings and places of connection, and requires that trains upon Myrtle avenue and Fulton street shall be run upon the same *235tracks to and from the Fulton ferry. But that is not the case. The recommendations of the Supreme Court commissioners that crossings be upon different grades, and that certain trains be run upon independent tracks, cannot be regarded as conflicting with a plan which defines nothing upon these subjects. The Supreme Court commissioners did not exceed their authority in making such recommendation, for the power to determine that the railroad ought to be constructed includes the authority to add such necessary qualifications to the determination. That principle was decided by this court in the Matter of the N. Y. El. R. Co. (7 Hun, 243), and affirmed by the Court of Appeals (70 N. Y., 358).
I perceive no legal .ground of objection to the action of the mayor’s commissioners in giving to the railway company the option of adopting one of several alternative routes designated, or what is, in substance, the same thing, fixing two routes and then providing that if the railway, should be constructed upon one of such routes it need not be constructed upon the other. Similar action was expressly sanctioned by this court and the Court of Appeals in the New York Elevated R. R. Case (70 N. Y., 358).
It is urged that the report before us should not be confirmed because the common council of Brooklyn, in August, 1878, refused to grant its consent to the construction of the proposed railway. There are, as it seems to me, two answers to this objection : 1. When the refusal was made, no consent had been asked. The corporation which has the sole authority to construct the railway was not then in existence, and yet it alone required or could receive such consent The action of the common council at that time, therefore, was premature. 2. The common council had no power to bind itself or its successors so as to preclude the exercise of the legislative functions intrusted to that body. (Brick Church Case, 5 Cow., 538; Mayor v. Britton, 12 Abb., 367; Same v. Second Ave. R. Co., id., 364.) The case of Musser v. Fairmount, etc., R. Co. (5 Penn. Law Jour. Rep., 466), is not an authority on this subject, because in that case the act incorporating the railway company contained a proviso whereby the grant of the right to use the streets was made dependent upon the condition that the consent of the councils of the city of Philadelphia should be obtained. The act also provided that such *236consent should, be taken and deemed to have been given, if said councils should not, within thirty days after the passage of the act, by ordinance duly passed, signify their disapproval thereof. It will be observed that the councils were expressly authorized to pass the ordinance refusing consent, and that they were required to do so within thirty days in order to prevent the taking effect of the legislative grant. If they disapproved of the railway, it was their duty to refuse their consent within the time limited, for otherwise the grant of the right to use the streets, which was made upon condition that such consent should be obtained, would take effect. The condition attached to the grant of the right to use the streets in the case before us is the same in effect as that in the Philadelphia Case, but, it is without limitation as to the time when the consent of the public authorities may be obtained, nor are the public authorities required to act at any time in order to avoid an implication of their consent.
In the case of the Supervisors v. Galbraith (9 Otto, 214), a statute of Mississippi authorized a county to subscribe to the capital-stock of a railroad company provided that at an election, of which twenty days notice should be given, a majority of the qualified electors voting should be in favor of the subscription. The proposition when first submitted was rejected, but at a second election it was carried. The Supreme Court of the United States held as follows : “ There is no limitation as to the time when, or the number of times, the voters might be called upon to decide the question of subscription. We cannot recognize any restirction as to the latter without adding to the statute what it does not contain. Our duty is to execute the law not to make it.” To the same effect is'the case of The Society, etc., v. New London (29 Conn., 174).
The action of the common council of Brooklyn referred to was uncalled for and unnecessary to protect any right of the city. The report of the mayor's commission was transmitted to him not in obedience to a statutory requirement, for there was no such requirement, but as an act of curtsey merely. The mayor was not required or authorized, except as an act of curtesy to send the report to the common council. The document did not legally thereby come before that body for any *237official action thereon, and their action upon it was gratuitous and ineffectual.
There are other minor objections, all of which have been examined, but none of them deserve particular notice. Having found no tenable objection .to the confirmation of ■ the report it should be confirmed.
Present — Barnard, P. J., Gilbert and Pratt, JJ.Report of commission not confirmed.