People ex rel. West Side Street Railway Co. v. Barnard — 18 N.Y. St. Rep. 542

Majority

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People ex rel. The West Side Street Railway Company, App’lt, v. Joseph E. Barnard, as Comptroller of the City of Buffalo, Resp’t.^[1]

(Court of Appeals,

Filed October 16, 1888.)

Headnote

1. Street railways—Power of municipal authorities to consent to CONSTRUCTION OF—CONDITIONS—LAWS 1886, CHAP. 643.

Under the provision of the Laws of 1886, chapter 643, and under the.

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constitutional provisions applicable to the construction of street railways, municipal authorities have the absolute power to grant or withhold their consent to the construction of street railways; and they may impose any conditions, however onerous and difficult to perform, as the terms upon which their consent will be granted. But in the notice of sale provided for, in said laws, the conditions which the municipal authorities imposed must be specified, and no other conditions can be inserted therein, and none other can be exacted or imposed by the officers conducting the sale.

2. Same—The security the purchaser must give.

The only security required by the said law from the purchaser at the sale, is the bond or undertaking to secure the payment of the percentage of the gross receipts agreed to be paid, and for the completion of the road within the time specified. The law does not require the purchaser to give any other security, and no other security can by the terms of the law be exacted.

3. Same — Municipal authorities may require any stipulations or CONDITIONS IN BOND—SAME LAWS, $ 3.

The local authorities may, in giving their consent to the use of the ' street for a street railway, impose as a condition, that a bond shall be given, by the purchaser at the sale, containing any stipulations or conditions which they may see fit to prescribe, but in the absence of such action by the local authorities the comptroller has no right under section 3 of said act, to exact security for the performance of anything except the three things specified in the said act, and the conditions which he may require to be included in the bond are such only as relate to and are appropriate to secure such performance.

4. Same — When comptroller will be compelled by mandamus to approve OF BOND.

The bond in this case was sufficient and unobjectionable in form, and the comptroller approved of the amount of the penalty and the sufficiency of the sureties; he had no further discretion to exercise, and was hound to accept and approve it. The bounds of discretion and jud'cial action having been past, this is a proper case to compel the performance of his further duties by mandamus.

5. Same—Resolution of common council as to condition on which consent WILL BE GRANTED IS FINAL.

Where the common council does not sufficiently protect the rights of the city and the interests of the public in the resolution granting consent to the use of the street for a railway, and such right has been sold pursuant to the provision of the law in question, there is no help. Its action is final and everybody must abide by it. Its neglect cannot be remedied by exacting of the purchaser a bond which it is not bound to give.

Appeal from an order of the supreme court, general term, fifth department, affirming an order of the Erie county special term, denying the relator’s application for a peremptory mandamus requiring the respondent to approve of a bond executed by the relator. The facts will be found in the opinion.

F. Brundage, for app’lt; William F. Worthington, for resp’t.

It is provided in section 1 of chapter 642 of the Laws of 1886 that the legal authorities of any incorporated city to whom application may be made for the construction, maintenance, use, operation or extension of a street railroad through any of the streets of such city, must pro.

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vide as a condition of the consent to the use of such street that the right, franchise and privilege of using the same shall be sold at public auction “to the bidder who will agree to give the largest per centage per annum of the gross receipts of such company or corporation, with adequate security as hereinafter provided for the fulfillment of such agreement, and for the commencement and completion of such road according to the plan or plans, and on the route or routes fixed for its construction, within the time or times hereinafter designated" and prescribed therefor; ” that" the local authorities of any city may give such consent to any applicant therefor, duly incorporated, and existing under, the laws of this state for the purpose of providing, street railroad facilities in the city, and the bidder to which such consent may be sold shall be an' incorporated railroad company organized to construct and operate a street railroad within such city; that prior to. such sale notice of the time and place of sale and the conditions' upon which the consent of the. city authorities to construct and operate the road will b¿ given, shall be published • as provided in the act; that the comptroller or other chief fiscal officer of the city shall attend and conduct the sale to be made under the provisions of the act; that-the bidder or bidders to whom the consent or license shall :be sold shall commence the construction of the road within one year and .complete the s'ame within three years from the date. of sale. Section 3 provides.that.the security required by section 1 of the act “shall be a bond or undertaking in writing and under seal, in such form,- condition, - amount and sureties as shall be required and approved by the comptroller or other chief fiscal officer'of áiiy such city, and by the trustees of any such village.” Under this act and under the constitutional provisions applicable to the .construction' of- street railways the municipal authorities have the absolute power to grant or withhold" their consent" to the "construction of street railways;- and they may impose any condition, however onerous and difficult to perform, which seems to them in the exercise of" their discretion to be proper,- as the terms upon which their; consent will be given. . But in the notice of sale provided "for the conditions which, they impose must be specified, and no other conditions can be inserted therein, and none other ; can be exacted- or imposed by the officer conducting "the sale." The" only security required by the law from the purchaser at the sale is the bond or undertaking to secure The" payment of the percentage of gross receipts agreed to be paid,. and for the commencement and completion of the road within the times specified. The law does not require the purchaser to give any other security, and no other security can by the terms of the law be "ex

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acted. The local authorities may undoubtedly in giving their consent to the use of the streets for the street railway impose as a condition that a bond shall be given by the purchaser at the sale containing any stipulations or conditions which they may see fit to prescribe. But in the absence of such action by the local authorities the comptroller has no right under section 3 to exact security for the performance of anything except the three things specified in the act, and the conditions which he may require to be included in the bond are such only as relate to and are appropriate to secure such performance.

How what happened here? The common council of the city of Buffalo, upon due application made to it, did, by resolution duly passed on the 6th day of June, 1887, consent to the construction, operation and maintenance of a street railway in and along the following streets and places in the city of Buffalo, viz.: “ Commencing at the intersection of Virginia and Park streets, so as to connect with the track belonging to the Buffalo East Side Railway Company in Virginia street; thence northerly along Park street, with a single track to Allen street, so as to connect with said company’s tracks in Allen street; thence westerly, and upon said tracks of the Buffalo East Side Railway Company in Allen street to Fremont Place; thence northerly in and along Fremont Place- with a single track to Elmwood avenue; thence northerly along Elmwood avenue with double tracks to Forest avenue; subject to the conditions amongst others, that such franchise should be sold at public auction, pursuant to chapter 642 of the Laws of 1886, passed June 15, 1886, and that the rails to be laid and used in the construction of said railroad, should be of the kind known as the “ Richard’s Patent Girder Rail,” and to be laid so that their edges shall be flush with the pavement; and, further, that the company receiving the grant should, at all times, keep and maintain the pavement between its rails in good condition and repair; and that passengers should be carried by the company receiving the grant from Seneca street through the said route to Forest avenue for a single fare of five cents for one continuous passage. And notice of sale as prescribed in the statute was thereafter published as follows: ‘‘ Hotice is hereby given that the right, privilege and franchise of using the streets, avenues and public places in the city of_ Buffalo, hereinafter described for the purposes of a street railroad, will be sold by the comptroller of said city, at his office, at the city and county hall, at Buffalo, H. Y., on the 6th day of August, 1887, at 10 o’clock, a. m., at public auction, to the incorporated railroad or railway company, organized to construct, maintain and operate a street railroad in the city of Buffalo, which shall be the bidder who will agree to give for such right, privilege and franchise,

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the largest per centage per annum of its gross receipts, with security for the fulfillment of such agreement, and for the commencement of said road within one year, and for the completion thereof within three years from the date of said sale according to the plan and along the route hereinafter specified.

The security to be given by the purchaser upon such sale ■ as aforesaid shall be a bond or undertaking in writing and under seal in such form, condition, amount and securities-as shall be required and approved by said comptroller. The purchaser at such sale of such grant, right or privilege shall take the same only upon and subject to the following further conditions, viz;

First. That the rails to be laid in the construction of said railroad shall be of the kind known as the Richards patent girder rail; the said rails to be so laid that their edges shall be flush with the pavement, and the purchaser at said sale at all times to keep and maintain the pavement between its rails in good condition and repair.

Second. That the purchaser as hereinbefore specified, shall charge no greater than a five cent fare for one continuous passage from Seneca street along Main street and over the route specified in this grant to Forest avenue.

, Third. The right, privilege and franchise as aforesaid to. be sold, is the right, privilege and franchise of using the following streets, avenues and public places in the city of Buffalo, for the purpose of constructing, operating and maintaining a street railroad, as follows:

(As stated in the resolution of the common council).

“WILLIAM E. DELANEY, City Clerk.”

The relator bid at the sale thirty-six per cent of its gross-receipts per annum, which was the highest bid as determined by the comptroller and the franchise was awarded to it subject to its giving security as required by chapter 643 of the Laws of 1886. Thereafter and within a reasonable time the comptroller caused to be prepared and presented to the relator for its execution and then and there demanded and required it to execute á bond in the penalty of $20,000, containing the conditions prescribed in the statute and many other conditions. The relator deeming the bond illegal and unauthorized by the Law of 1886, made objections to certain conditions contained therein and refused to exethe same. Thereupon it caused to be prepared and executed a bond which it presented to the comptroller in the penalty of $20.000, in the same general form as the bond demanded by the comptroller, containing the conditions prescribed in the Law of 1886, as well as some further conditions which were also with others contained in the bond prepared by the comptroller; and it demanded that he should accept and

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approve the bond as the security required by the act of 1886. This he refused to do, giving as a reason for such refusal that it did not contain all the conditions specified in the bond presented by him to the relator, expressly admitting, however, that the sureties and the amount of the penalty were satisfactory.

Ho objection was made to the general form of the bond, or that it did not contain all of the conditions required by the statute of 1886, or by the resolution of the common council, or by the notice of sale, as published.

We are of.opinion that the comptroller was bound to accept and approve the bond. It contains all that the statute requires, and he had no right to exact any other conditions. He did not object and could not object to the other conditions contained in the bond. His sole objection was that some conditions were omitted from the bond, which he determined ought to be contained therein. The conditions, aside from those required by the statute for the payment of a percentage of gross receipts, and for the commencement and completion of the road within the prescribed times, were harmless, not illegal or against public policy, but were mainly, if not exclusively, conditions for the performance of such things as the law, without any agreement whatever, required the relator to observe and perform. There is no ground for claiming that the bond would be illegal and void, as given colore officii, because it was voluntarily executed and tendered to obtain a franchise and privileges from the city; and certainly, after by mandamus compelling the comptroller to accept and approve the bond, it could not be maintained by any of the obligors, that it was illegally exacted from the principals.

The bond being sufficient and unobjectionable in form, and the comptroller having approved of the amount of the penalty and of the sufficiency of the sureties, he had no further discretion to exercise, and was bound to accept and approve it, and these further acts were administrative merely. The bounds of discretion and judicial action having been passed, this is a proper case to compel the performance of his further duties by mandamus.

It has been said that the action of the common council was illegal and void, because it required the purchaser of the franchise to carry passengers from Seneca street through the route specified in the grant, for a single fare of five cents for one continuous passage. The resolution undoubtedly required the railway company taking the grant to carry passengers to and from points beyond one of its termini. This was a condition which it could impose.

It might be difficult for the company taking the grant to perform it. But it was not impossible to perform it be

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cause, under the statutes, there was a way by which the-relator could obtain the right to run upon the tracks of the East Side Street Railway Company, which owned the road between Seneca street and one terminus of the route granted. If it should turn out that it could not comply with the terms of the grant in the respect mentioned, the-result would simply be that it would be exposed to the forfeiture of its franchises and rights.

It may be that the common council did not sufficiently protect the rights of the city and the interests of the public in the resolution granting consent to the use of the streets-for the railway. But there is no help for that now. Its action is final and everybody must abide by that. Its neglect, if there was any, cannot be remedied by exacting of' the purchaser a bond which it is not bound to give. If,, however, it should abuse its privileges or violate any law or condition applicable to it, or so operate its road as to-annoy. oppress or seriously discommode the public, the attorney-general in behalf of the people, or the local authorities in behalf of the city, or the legislature in the-exercise of the sovereign power, will doubtless find or devise some adequate remedy for every serious grievance.

Our conclusion, therefore, is that the orders of the general and special terms should be reversed and the writ of peremptory mandamus should be issued, without costs.

All concur, except Danforth, J., not voting.