(dissenting):
The applicant is a railroad company organized under chapter 252 • of the Laws of 1884, to construct, maintain and operate a railway, commencing at the southerly end of Broadway, near the Battery, and extending, with double tracks, along Broadway to Union Square, and then to a point at or near the intersection of Fifteenth street with Union Square, and there connecting with another railway extending through Union Square, Broadway and Seventh avenue to Fifty-ninth street, at the Central Bark.
Before the railway can be legally constructed, both the Constitution of the State, and the act under which the company has been incorporated, require that it shall obtain the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, any portion of the street or highway upon which it is proposed to construct and operate the railroad. (Art. 3, § 18 of the Constitution; sec. 3 of chap. 252, Laws of 1884.) " If the assent of so many of the owners cannot be obtained in the form prescribed for that purpose, then the determination of three commissioners, to be appointed by the ■ General Term of the- Supreme Court in the district in which it is proposed to construct the railway, confirmed by the court, may be taken in lieu of the consent of the property owners.
*423In support of the application affidavits have been produced upon which it has been claimed, on behalf of the railroad company, that it has been unable to obtain the consent of the owners of one-half in value of the property bounded on the street in which it is proposed to lay the railway. It need not now be determined whether this position has been satisfactorily maintained by these affidavits, for, by the affidavits produced by way of answer to the application, it has been made to appear that the requisite consent of the local authorities has not been obtained. The Constitution is silent as to the order in which the consent of the owners of the property, and that of the local authorities, shall be obtained. It contains nothing either 'expressly or by implication requiring one to precede the. other, and that was accordingly a subject within the province of the legislature. By the enactment of a law, as it was required that one should be enacted to carry these provisions of the Constitution into effect, the legislature was at liberty to direct that either of the consents should precede the other, and whether that of the local authorities should be first obtained before ah. application should be made to the General Term, upon the alleged inability of the company to secure the consent of the requisite number of property owners was a matter addressed to it, and legislative action determining it would, in no respect, be in conflict with the provisions of the Constitution. It was, therefore, within the province of the legislature to pass the act it was empowered to enact, in the form considered by that body to be best adapted to the object intended to be secured. And as no railway could be laid or maintained without the consent of the local authorities, there was manifest propriety in requiring that it should be obtained, before the other proceedings were taken, to permit and authorize the construction of a railroad. It was clearly fundamental upon which the other proceedings were naturally and logically dependent, for ineffectual efforts to obtain the consent of the property owners, followed by the appointment of commissioners by the General Term and the confirmation of their favorable determination, would be of no service or consequence whatever until the consent of the local authorities should also be obtained. That has been made the basis of all that should be done to comply- with these provisions of the Constitution, and the legislature appear to have followed that view *424in tbe enactment of the law under which this company has been incorporated. It is true that the act has not, in any positive terms, directed that the consent of the local authorities shall precede the other proceedings, but it has made use of language in the enactment of the law unmistakably disclosing that to have been the design and intention of the legislature. With that design in view it has been enacted by the fourth section of the act that “ the value of the property so bounded shall be ascertained and determined from the assessment-roll of the city or town in which such property is confirmed or completed, last before the local authorities shall have given their consent.” This direction cannot be complied with unless the assent of the local authorities shall be obtained before the effort is made to secure that of the pi-operty owners, for it can in no manner be known or determined by what assessment-roll the value shall be ascertained until after the consent of the local authorities shall have been given. The phraseology of this portion of the section has been so framed as to refer to the consent of the local authorities, as a fact preceding the application to the property owners for their consent. Its language is that the value shall be ascertained and determined from the assessment-roll, confirmed or completed last before the local authorities shall have given their consent. The language plainly refers to the consent of the authorities as a precedent and accomplished fact, and it is upon the basis of that fact that the particular assessment-roll is to be ascertained, by means of which the valuations of the property can be determined. In other words, there can be no assessment-roll selected as the criterion of valuation until after the consent of the local authorities has been given; for until that consent has been secured what the last assessment-roll confirmed or completed may be, before the consent of the local authorities shall be given, cannot be determined. That the local authorities may afterwards give their assent is no answer to this construction of this portion of the act. That is not what the legislature have prescribed. But what they have provided for is that the consent of the local authorities shall first be obtained, and then by the assessment-roll last confirmed or completed before that, the company shall proceed according to, and follow, its valuations, to. obtain the consent of a majority of the property owners upon the street. And if the efforts for that purpose prove to be unsuccessful *425when that shall be ascertained to be the fact, the application for the appointment of commissioners may be made to the Supreme Court* The act plainly contemplates a distinct- and divisable order .of proceeding. The first is to secure the consent of the local authorities. If that cannot be obtained then all other proceedings having in view the construction of the railway will be useless. But if that shall e obtained, then the second step in the proceeding is the endeavor to obtain the consent of a majority of the property owners, and as a criterion by which that proceeding is to be made effectual or ineffectual, the assessment-roll last confirmed or completed before the assent of the local authorities shall be given is to be acted upon and followed to ascertain the valuation of the property. If according to that assessment-roll a majority in value of the property owners consent, then the right arises to construct and. maintain the road. If according to that measure of valuation a majority of the property owners withhold their consent, then tjie third step in the proceeding is authorized, and that has been made dependent on the inability to obtain the consent of the requisite number of property owners. It is necessarily also made dependent on the fact that the consent of the local authorities has previously been obtained. When that may appear to be the ease and the property holders shall withhold their consent, the confirmation of the determination of the commissioners to be appointed by the court will complete the right of the railway company to construct its road. But without the preceding consent of the local authorities the determination of the commissioners and its approval by the court would pass for nothing.
That it was intended that the consent of the local authorities should precede the proceedings to be taken, to obtain that of the owners of the property, is further confirmed by a preceding clause of the same section, by which it has been declared that “ any consent so given by said local authorities shall cease and determine at the expiration of one year thereafter, unless prior to the expiration of such period, the company obtaining such consent shall have filed the consent of the requisite amount in value of property owners, or the determination of commissioners confirmed by the court as herein provided.” This clause of the section discloses the same design. For it proceeds upon the assumption that either the consent of’ the property owners, or that of the commissioners confirmed by *426■the General Term, shall follow tbe consent given by the local authorities.
It is no answer to these portions of the act that the assent of the property owners, or the confirmation of the report of the commissioners, can be of no service- to the railway company until that also of the local authorities shall have been obtained. For the legislature did' not proceed in the enactment of the law upon that theory. As the Constitution was silent as to the course of the proceeding, .•except that commissioners could not be- appointed until after an ineffectual attempt was made to obtain the consent of the owners of the property, it might have done so and have postponed the consent •of the local authorities until after the other proceedings had been taken. But it did not adopt that course. It proceeded upon the fact that without the consent of the local authorities no effectual proceedings for the construction of the railroad could be taken, and in the order of events that consent was required to be obtained before the company could intelligently proceed in its efforts to obtain the consent of the property owners. Without the consent of the local authorities the last preceding' assessment-roll could neither be known nor ascertained, and, consequently, it could not be determined, as’the act has required that.to be done, that the majority of owners in value, appearing upon the roll, either gave or withheld their consent to the construction of the road. But after obtaining the consent of the local authorities, then the assessment-roll, upon the basis of which the value should be ascertained, would at once become apparent, and the next step in the proceeding could be intelligently taken to obtain the consent of the majoi’ity of the owners in value, as that valuation should be fixed by the roll, or the inability to obtain the consent should in like manner be made to appear. The legislature have so framed the law, and its provisions require to be observed before commissioners can regularly be appointed to determine whether the railroad should or should not be constructed.
The local authorities whose consent is required to be obtained in .the first instance are the common council of the city, and that consent, when formally given, is subject to the veto power of the mayor ■of the city. (Chap. 252, Laws 1884, § 3.) It has been stated in support of the proceeding that the common council of the city *427yielded its consent by a resolution adopted on tlie 30th of August, 1884. But this resolution was not adopted at a regular meeting of the council. The meeting adopting it was a special one, called by the united authority of eighteen out of the twenty-two members of the common council. This meeting convened at nine o’clock in the forenoon of the day on. which the resolution was adopted, and from the evidence of the clerk, which was taken in the action of Knox v. Kirk, and has been authenticated by one of the affidavits produced upon the hearing, as that has been published in the City Record, it was made to appear that he was directed to give notice of the meeting to the absent aldermen about fifteen minutes before that time. And the. fact is disclosed by his examination that the notice was not served upon the absent members' of the common -council. The failure to serve this notice rendered the meeting an unlawful one, and deprived it of all power and authority over this .subject. If the absent membei's had been notified ánd, in compliance with the notice, had been present, they might have suggested very convincing reasons why the resolution should not be adopted, and the public were entitled to their presence, or the service of notice upon them for such a convenient time previously as would have procured their attendance to secure even the possibility of that advantage. Upon this subject, it has been said, that if the meeting be a special one, the general rule is,, unless modified by the charter or statute, that notice is necessary and must be personally served, if practicable, upon every member entitled to be present, so that each one may be afforded an opportunity to participate and vote. (Dillon’s Municipal Corps. [3d ed], § 286.)
The same point was considered in People v. Batchelor (22 N. Y., 128). And, in considering it, it was said in the prevailing opinion •of the court that “ it is, of course, indispensable for the appellants to show that all the members of the appointing body had notice of some sort, either actual or presumptive, of the time fixed for making the appointments. It would be absurd to hold that a portion only -of those to whom a power of appointment is confided can get •together and exercise the power without notice to their associates. It is not only a plain dictate of reason, but a general rule of law, that no power or function entrusted to a body consisting of a number ■of persons can be legally exercised without notice to all the members *428composing such.body.” (Id., 13é.) And because notice was not in that particular instance given, the appointment then in controversy was held to be without authority. The same principle applies directly to the exercise of any authority vested in the common council, upon whatever subject it may propose to act at a special meeting, as the meeting was at which this resolution was adopted. The law requires that the absent members shall have notice that the meeting is to convene before even the majority in attendance have legal power to act. This rule was not complied with in this instance. The absent members were neither notified, nor was any attempt made to serve notice upon them, of the meeting of the common council at which the resolution was adopted. And because of that omission it was without legal authority, and did not constitute the consent of the local authorities within the provisions of the act of 1884, or of the Constitution of the State.
After this resolution was adopted the legality of this proceeding was referred by the mayor to the corporation counsel, and the authorities bearing upon it were_ thoroughly and fully examined, and the same conclusion is shown to have been well sustained by them which has been already mentioned. The opinion of the corporation counsel upon this subject renders any further consideration of it unnecessary, for by all the authorities cited and referred to by him the settled rule of law is shown to be that to which reference has now been made. The opinion given by him may well be adopted for the government of the court in this proceeding as a clear, thorough and intelligent exposition of the law.
The resolution adopted by the members of the council in attendance was a nullity. It was wholly devoid of legal authority. For that reason the company has not obtained the consent of the local authorities for the construction of this railroad. Until that shall be done an application for the appointment of commissioners is premature, even though the property owners may have in fact refused their consent. For it cannot be determined that a majority in value appearing upon the assessment-roll, completed last before the local authorities shall have given their consent, have withheld their assent. And as that cannot be made to appear, the motion for the appointment of commissioners must necessarily be denied. If the act could be so construed as to allow the consent of the local *429.authorities to be obtained in future, it would not avoid a fundamental defect in the proceedings, for since the owners of the property are alleged to have refused their consent another assessment-roll has been completed and confirmed. That is now the last assessment-roll ; and if the consent of the local authorities shall be obtained before another assessment-roll shall be made and completed, that will be the last assessment-roll mentioned in the law. And one-half in value of the owners of property, according to that roll, have not been shown to have been applied to for their consent. But the application for the owners’ consent was according to the valuations appearing by the assessment-roll of the year 1883, and that by no possibility can be the roll confirmed or completed next before the obtaining of the consent, which has not yet been, given, of the local authorities. This defect may be removed by proof showing the fact that the valuations and owners remain the same as they appear by the assessment-roll of 1884. But until that, as well as the other omissions to comply with the law,'have been supplied, commissioners should not and cannot be lawfully appointed.
Motion for the appointment of commissioners granted, and same persons designated as commissioners as former commission.