People v. Bleecker Street & Fulton Ferry Railroad

It is not contended in behalf of the appellant that the consents or grants in question do-not constitute franchises within the contemplation of the statutory provisions to which reference has been made, conferring authority on the Attorney General, in some instances, with the consent .of the court and in other instances without such consent, to maintain an action against the holder of the franchise. It is apparently conceded that the right of the people to maintain such an action is authoritatively established by the decision of the Court of Appeals in City of New York v. Bryan, 196 N. Y. 158 , 89 N. E. 467 , in which it was decided that such grants or consents, when made pursuant to legislative authority, spring from the people and become part of the franchise of the corporation, in effect as if made directly b.y the Legislature itself. Chief Judge Cullen in that case, writing for the court, speaking of municipal consents or grants pursuant to legislative authority, said:

“Therefore the consent of the city was but a step in the grant of a single, indivisible franchise to construct and operate a street railroad.”

And it was held that:

"The legal status of that franchise and the rights of the defendants, or the ■company to which they succeeded, to the property and structures created in the execution of the franchise, should be determined only in a litigation between the people of the state, from whom the franchise sprang, and the defendants, wherein a determination will be binding and conclusive on everybody, and not in a suit between the defendants and third parties, unless if is ■absolutely necessary so to do.”

In that action the city demanded judgment that, certain. franchises ■granted by the board of aldermen of the city of .New. York, and of Long Island City to the New York & Long Island Railroad Company had ceased and determined for failure on the part of the grantee thereof to fully comply with the conditions of the grant with respect to the construction of a tunnel under the East River. What is meant by the words quoted from the opinion of the court, “unless it is absolutely necessary so to do,” is made clear by other parts of •.the opinion, in which .it is stated that, if the city attempted to interfere with the rights claimed by the defendant and an application were made for an injunction, it would be necessary in such action to decide the controversy. It is manifest, however, that, if such special con-

Section 131 Of the general corporatioh law does not, we think, authorize this action even with the consent of the court. As already stated, that section" was taken from section 1798 of the Code of Civil Procedure, which was embraced in article 4 Of chapter 15 of title 2. The heading of that article is, “Action by the People to Annul a Corporation.” The first section of that article authorizes an action by the Attorney General by the direction of the Legislature to procure the annulment of a corporation on the ground that its charter was procured through fraud. The second section of that article, being section 1798, provided as follows:

“Upon leave being granted, as prescribed in the next section, the Attorney General may bring an action against a corporation created by or under the laws of the state, to procure a judgment, vacating the charter or annulling the existence of the corporation upon the ground that it has, either, (1) offended against any provision of an act, by or under which it was created, altered, or renewed, or an act amending the same, and applicable to the corporation; or, (2) violated any provision of law, whereby it has forfeited its charter, or become liable to be dissolved, by the abuse of its powers; or, (3) forfeited its privileges or franchises, by a failure to exercise its powers; or, (4) done or omitted any act, which amounts to a surrender of its corporate rights, privileges arid franchises; or, (5) exercised a privilege or franchise, not conferred' upon it by law.” -p

This action is not brought to annul the corporate existence of the holder of the franchises, or even to annul all of the franchises of the corporation. The Legislature evidently deemed it proper to require that the consent of the Supreme Court be obtained before an action should be brought against a corporation that might annul its charter and terminate its life, and the court was vested with discretion to grant or withhold such leave accordirig to the circumstances of each case as presented. People v. B. S. & C. Co., 131 N. Y. 140 , 29 N. E. 947 , 15 L. R. A. 240 ; Matter of Attorney General, 81 Hun, 541 , 30 N. Y. Supp. 1093 ; Matter of Attorney General, 124 App. Div. 401 , 108 N. Y. Supp. 823 ; People v. N. R. S. R. & Co., 121 N. Y. 582 , 24 N. E. 834 , 9 L. R. A. 33 , 18 Am. St. Rep. 843 ; People v. U. & D. R. R. Co., 128 N. Y. 240 , 243, 28 N. E. 635 . It is not, however, reasonable to infer that the Legislature intended to leave it discretionary with the court by granting or refusing its consent to the maintenance of an action by the Attorney General whether a corporation shall be permitted to exercise franchises which have not been conferred upon it and to disregard its charter obligations to the people or be called to accept therefor. It was held in People v. Broadway R. R. Co., 26 Abb. N. C. 407 , Id., 56 Hun, 45 , 9 N. Y. Supp. 6 ; Id., 126 N. Y. 29 , 26 N.

It has, however, been since held that section 1798 of the Code of Civil Procedure does not authorize an action for the annulment and forfeiture of a special franchise as distinguished from the corporate charter. People v. Westchester Traction Co., 123 App. Div. 689 , 108 N. Y. Supp. 59 ; People ex rel. Hearst v. Ramapo Water Co., supra. See, also, Matter of Attorney General, 124 App. Div. 401 , 108 N. Y. Supp. 823 . The phraseology of the provisions of section* 1798 of the Code of Civil Procedure was not appropriate to authorize an action primarily and solely to oust a corporation from the exercise of a particular franchise or part thereof, and the fact that the court in People v. Broadway R. R. Co., supra, in which the annulment of' the charter of the corporation was demanded, retained the action and granted minor relief, is not, we think, a controlling authority on the construction of the provisions of law in question. At common law equity did not have jurisdiction of an action for relief such as that here demanded (Attorney General v. Utica Ins. Co., 2 Johns. Ch. 371 ; Attorney General v. Pres. Bank of Niagara, etc., 1 Hopk. Ch. 354 ). but the Attorney General was vested with authority to maintain quowarranto for such relief at common law (Joyce on Franchises, § 486 Booth on Street Railway Law, §§ 51, 52; Attorney General v. Madison Street Railway Co., 72 Wis. 612 , 40 N. W. 487 , 1 L. R. A. 771 ; People v. Bristol and Rensselaerville Turnpike Co., 23 Wend. 222 ; Thompson v. People, 23 Wend. 537 ; People v. Miner, 2 Lans. 396 ; 17 Ency. P. & P. 448; 13 Cyc. 143; State v. P. C. Water Co., 107 Wis. 441 , 83 N. W. 697 ; People v. Sutter Street Railway Co., 117 Cal. 604 , 49 Pac. 736 ). The Legislature in abolishing the writ of quo warranto did not intend to deprive the court of jurisdiction in cases of this kind. It was merely intended to change the form of procedure, and that the relief which formerly was obtained by quo warranto and by informations in the nature of quo warranto and by scire facias, should be had in actions or by motions as prescribed in the Code of Civil Procedure. Code Civ. Proc. § 428; Code Civ. Proc. § 1983, Throop’s note; People ex rel. Hatzel et al. v. Hall, 80 N. Y.

“The Attorney'General may maintain an action, upon his own information, or upon the complaint of a private person, in either of the following causes: (1) Against a person who usurps, intrudes into, or unlawfully holds or exercises, within the state, a franchise, • or a public office, civil or military, or an office in a domestic corporation.”

No leave of the court is required to the maintenance of an action under that section. In Matter of Attorney General, 130 App. Div. 626 ; 115 N. Y. Supp. 393 , we expressed a doubt as to whether the word “person” as used in subdivision 1 of this section includes corporations, but we refrained from expressing a decided view on the point. The question is now squarely presented for decision.

By the Revised Statutes, enacted in 1813, the consent of the court1 was required for the maintenance of an action either of the nature now prescribed by section 131 of the general corporation law, or by section 1948 of the Code of Civil Procedure (section 4, c. 11, Rev. Laws 1813), but a distinction was made in this regard by the Revised' Statutes enacted in 1829. By section 39 of article 2 of chapter 9 of part 3 of the Revised Statutes, which corresponds with the provisions of section 131 of the general corporation law, such consent was required, but by section 28 of the same article, from which the provisions of section 432 of the Code of Procedure and section 1948 of the Code of Civil Procedure were derived, such consent, with respect to the actions thereby authorized to be brought, was dispensed with. Counsel for the appellant places considerable reliance upon the fact that said section 28 by express terms authorized an information in the nature of a quo warranto “against individuals.” Counsel for the respondent, however, draws attention to the fact that sections 28 and 39 in the original revised statutes were in the same article, and that the relief authorized in actions brought as therein provided was prescribed in the same article by sections 48 and 49, and that section 48 was evidently designed to prescribe the relief to be granted on an information filed as authorized by section 28, and that section 49 was designed to prescribe the relief that might be granted on an information filed as authorized by section 39, and that the phraseology of section 48 shows that section 28 was intended to relate to an information filed against a corporation as well as individuals. The phraseology of section 48 corresponds with that contained in section 28, and the phraseology of section 49 corresponds with that contained in section 39, and thus tends to sustain the contention made by the learned deputy Attorney General.

Section 48 was as follows:

“Whenever any defendant, whether a natural person or a corporation, against whom an information in the nature of a quo warranto shall have been exhibited, shall be found or adjudged guilty of usurping or intruding into, or unlawfully holding or exercising, any office, franchise or privilege; judgment

shall be rendered, that such defendant be ousted, and altogether excluded from such office, franchise or privilege; and also, that the Attorney General, or the relator, if there be one, recover his costs against such defendant. The •court may also, in its discretion, fine such defendant any sum not exceeding two thousand dollars; which fine, when collected, shall be paid into the treasury of this state.”

Section 49 was as follows:

“Whenever it shall be found or adjudged that any corporation against which an information in the nature of a quo warranto shall have been filed, has, by any misuser, non-user or surrender, forfeited its corporate rights, privileges and franchises; judgment shall be rendered, that such corporation be ousted, and altogether excluded from such corporate rights, privileges and franchises, and that the said corporation be dissolved.”

The learned counsel for the appellant, however, contends that this is not controlling, and he cites People v. R. & S. R. R. Co., 15 Wend. 113 , 30 Am. Dec. 33 , in addition to People v. Broadway R. R. Co., supra, as showing that, in an action for the annulment of a corporation which was formerly authorized by said section 39 of the Revised Statutes, the courts would grant a judgment of ouster from some franchise without the annulment of the corporation, and that, therefore, a judgment on an information filed under section 39 was not confined to the relief prescribed by section 49. We are of opinion, however, that that does not destroy the argument that section 38 was to be construed with section 48, and that the two together show that the former was intended to relate to an information filed against a corporation as well as against individuals. Section 37 of the general construction law (Consol. Laws, c. 22), which superseded sections of the statutory construction law (chapter 677 of the Laws of 1892), provides so far as material to the questions now under consideration as follows:

“The term person includes a corporation and a joint-stock association.”

Counsel for the appellant draws attention to section 110 of the general construction law, which superseded section 1 of the statutory construction law, and is as follows:

“This chapter is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.”

And he contends that the context of the language contained in section 1948 of the Code of Civil Procedure and the provisions of section 131 of the general corporation law show that the word "person” as employed in section 1948 was not intended to include a corporation. We are of opinion, however, for the reasons already assigned, that this argument is not sound. It was intended, we think, by the provisions of the Code of Procedure and of the Code of Civil Procedure to preserve in a different form the remedies that theretofore existed'by quo warranto and by an information in the nature of quo warranto and by scire facias, and since, as has been seen, provisions of section 430 of the Code of Procedure and of section 1798 of the Code of Civil Procedure—now section 131 of the General Corpora

Section 3345 of the Code of Civil Procedure provides that:

“The rule of the common, law,- that a statute in derogation of the common law is strictly construed, does not apply to this act.”

This rule of construction tends to sustain the views herein expressed. We have not overlooked the contention of the learned counsel for the appellant that by the addition of subdivision 4 to section 1948 of the Code of Civil Procedure, by chapter 962 of the Laws of 1896,. making that section applicable to an action against a foreign corporation, a legislative intent is shown that the section theretofore did not apply to a corporation. We are of opinion, however, that this is not a controlling consideration, for the reason that the amendment contains additional provisions and may have been intended for greater precaution, and is therefore entirely consistent with knowledge on-the part of the Legislature that subdivision 1, of that section, as it: then existed, applied to corporations as well as to individuals.

It follows, therefore, that the interlocutory judgment should be affirmed, with costs, with leave to the appellant to withdraw its demurrer and answer on the payment of costs of the appeal and of the demurrer. All concur.