Transit Commission v. Long Island Railroad

The public policy of the State of New York, as expressed in the Constitution and in statutes, is to abolish the grade crossings of steam railroads. The enormous increase in the amount of traffic upon the highways, due to the advent of the automobile, calls for some action in behalf of the public welfare to reduce the peril and the danger occasioned by the meeting of the tracks and the street. While realizing the necessity for a change, the people of this State also recognize that it would be impossible and impracticable for the railroads to reconstruct these crossings so as to run over or underneath the highways at their own expense. The people have evidenced a willingness to share the burden, by adopting in 1925, amended in 1927, an amendment to the State Constitution, which became and now is article VII, section 14, of that instrument. This permits the Legislature to . authorize by law the creation of a State debt, not exceeding in the aggregate $300,000,000, to provide moneys for

The act is quite full and complete in detailing the steps which are to be taken to bring about this change in transit conditions in the city of New York. These brief references, however, to some of its provisions indicate that the work of eliminating grade crossings under this act, is a public work authorized by specific provisions of the Constitution, to be paid for in a large measure out of public funds. The people of this State, in order to pre

On August 3, 1927, the Transit Commission, acting in accordance with the New York City Grade Crossing Elimination Act, above mentioned, made its final order directing the Long Island Railroad Company to eliminate two grade crossings at Cross Island boulevard, Auburn-dale, and Bell avenue, Bayside, New York city. The New York and Queens Gas Company has a franchise to run its gas main through Bell avenue at this point, and owns and maintains an eight-inch pipe in the bed of Bell avenue, Bayside, underneath and below the crossing at grade of the tracks of the Long Island Railroad Company. The plans prepared by the engineers to carry out the order of the Transit Commission propose to depress the tracks of the railroad at Bell avenue crossing about twenty feet below the present grade. This of course requires the removal and relocation of the gas main. The Gas Company received notice of the hearing before the Transit Commission upon the application of the Board of Estimate and Apportionment of the city of New York for the elimination of this grade crossing, and appeared on the hearings by its vice-president and its attorney and counsel. In other words, pursuant to the provisions of the Elimination Act, the Gas Company was deemed by the Commission to be a party interested in the proceeding and was thereupon given notice of the application and a full opportunity to be heard by its representatives and counsel. The final order of the Commission followed.

The Gas Company, realizing that it alone could remove or disconnect its gas main with safety, refused to obey

The Gas Company has received from the public authorities its franchise or privilege to lay and maintain its gas main under the surface of the public street. Without this grant from the people it has no rights in the highway. This privilege, or franchise, is at all times subject to the police power of the State; in other words, the company maintains its pipes subject to the obligation to remove them whenever the public health or safety require this to be done. Although authorized to lay its pipes in the public streets, the company takes the risk of their location and is bound to make such changes as the public convenience and security require, at its own cost and charge. (Chicago, Burlington & Quincy R. R. Co. v. Chicago, 166 U. S. 226 ; New Orleans Gas Light Co. v. Drainage Commission, 197 U. S. 453 ; Chicago, Burlington & Quincy R. R. Co. v. Drainage Commrs., 200 U. S. 561 ; Lake Shore & Michigan Southern R. Co. v. Clough, 242 U. S. 375 ; Chicago, Milwaukee & St. Paul Ry. Co. v. City of Minneapolis, 232 U. S. 430 ; National Water Works Co. v. City of Kansas, 28 Fed. Rep. 921 ; Matter of Petition of Deering, 93 N. Y. 361 ; Chace Trucking Co. v. Richmond Light & R. R. Co., 225 N. Y. 435 .) All these cases are to the point, that these public service corporations maintain their rights in the streets, subject to reasonable regulation and control, and are bound to relocate their structures at their own expense whenever the public health, safety or convenience requires the change to be made. This common-law rule, however,

The fact that the New Jersey statute (Act of March 12, 1913, ch. 57, N. J. P. L. 1913, p. 91) makes special provision for public service corporations and companies of like nature to make changes in or removals of their property at their own expense under grade crossing elimination plans, does not signify that the New Jersey courts take a different view of this common-law obligation. (Erie R. R. Co. v. Public Utility Commissioners, 254 U. S. 394 .) Clarity is obtained by these specific provisions, and the Grade Crossing Ehmination Act of this State might well have contained similar words. The fixing of an obligation in statutes similar to these grade crossing acts dealing with many details and directions does not always indicate that the obligation would not have existed at common law, and is solely dependent upon the phraseology of the statute. In People ex rel. L. I. R. R. Co. v. Public Service Commission ( 181 App. Div. 465 ; affd., 224 N. Y. 565 ) the opinion expressly assumes that the several companies whose structures were interfered with could have been compelled by the exercise of proper authority to make the necessary shifting and relocation of those structures. The facts in Mayor, etc., v. Boston & Albany R. R. Co. ( 225 Mass. 548 , 562) do not bring if within the point of our present discussion.

The case of New Orleans Gas Light Co. v. Drainage Commission ( 197 U. S. 453 ) embodies the law which has

As we are approaching this case from the fundamental common-law right applicable to franchises in streets as limited by the police power, we need only refer to the Transportation Corporations Law (Laws of 1926, ch. 762; Cons. Laws, ch. 63), under which gas and electric companies are incorporated. Subdivision 1 of section 11 gives these companies power to lay conductors for gas in streets with the consent of the municipal authorities and under such reasonable regulations as they may prescribe. The Code of Ordinances of the City of New York (Ch. 23, art. 9, § 94, subd. 2), among other things, provides: “ Public service corporations whose pipes, mains or conduits are about to be disturbed * * * by the regulating or grading of any street, shall, on the receipt of the notice provided for in the preceding subdivision, remove or otherwise

Upon the refusal of the New York and Queens Gas Company to remove its gas main upon the request of the Long Island Railroad Company, the Transit Commission, pursuant to section 57 of the Public Service Commission Law (Cons. Laws, ch. 48], obtained an order of mandamus from the Special Term requiring the Gas Company to proceed forthwith to act in such a manner as to permit the work of elimination to proceed. The Appellate Division, by a divided court, has reversed the Special Term order, stating that while the State possesses the power to compel the New York and Queens Gas Company to relocate its structures to conform to the improvement in question, it had not exercised this power by any express language of the statute. In other words, as the New York City Grade Crossing Elimination Act made no provision for the expense of such changes, the cost was to be part of the general expense of the elimination to be borne by the State, city and railroad company.

We are of the opinion that the very reverse construction must be given to the law; that the common-law rule, as above stated, applies to the cost of all such changes, until the Legislature provides otherwise, and this it has failed to do. Chapter 677 of the Laws of 1928 must be read in

However, we may go further than rely solely upon a rule of construction applicable to an omission. The aim and object of the elimination act, and the methods used to accomplish its purpose, indicate that there was no intention to relieve public service corporations having franchises in the highways from their ordinary obligations. The general rule is and always has been, as we have above stated, that these corporations must relocate their properties in the highway when public necessity requires. The grade crossings of steam railroads have created an urgent necessity to do something for the safety of the traveling public. Not for the benefit of the railroads, but for the benefit of the people of the State, these grade crossings must go, and while the result may be slow in attainment, the work goes steadily on. Cost and engineering problems have to be faced; the former, the people have solved by assuming half the cost, and providing funds which may be borrowed for immediate use; the engineering problems are passed to public officials, known as the Transit Commission, under whose approval and supervision all plans are carried out. The reasonable construction of the elimination act under these circumstances is to assume that the people are not to be burdened with any heavier expense than necessity requires, and that to relieve the public service corporations having franchises in the streets of their common-law liabilities and to pass them over to the taxpayer can only be accomplished by the express direction of the Legislature.

In the absence of any such legislation, the New York and Queens Gas Company must at its own expense remove

The order of the Appellate Division should, therefore, be reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.