Mayor of New York v. Dry Dock, East Broadway & Battery Railroad

Majority

p. 236

Mayor, Aldermen, etc., of the City of New York, Resp’ts, v. The Dry Dock, East Broadway and Battery R. R. Co., App’lts.^[1]

(Court of Appeals,

Filed January 15, 1889.)

Headnote

Mew York (city of)—Street car license fees—Laws 1860, chap. 512— Laws 1866, chap. 883.

The provision, of the act of 1866 (Laws 1886, chapter 883) requiring the payment by the defendant company of a percentage on the net proceeds of the cars run on the extension provided for in said act, does not repeal the license provision of the act of 1860 (Laws 1860 chapter 512), and the company is not thereby relieved from payment to the cit • of a license fee for each car run over its route as provided by the act of 1860.

Appeal from a judgment of the supreme court, general term, first department, reversing a judgment in favor of the defendant, directed at the circuit.

John M. Scribner, for app’lts; D. J. Dean, for resp’ts.

The defendant, under the act of 1860, chapter 512 (passed April 17, 1860), was authorized to operate and use a railroad upon certain streets in the city of New York, and among others Grand street east of East Broadway, subject, among other things, to the payment to the city of the same license fee anuallv for each car run thereon as is now (April 17, 1860) paid by other city railroads in said" city. The franchise was accepted and the defendant, under the proof concerning license fees paid by other then-existing railroads, became liable to pay.fifty dollars for each two-horse car, and twenty-five dollars for each one-horse car run by them on the streets named.

This result follows from the decision of this court in the casé of the Broadway and Seventh Avenue Railroad Company ( 97 N. Y., 275 ), where a statute containing similar ’ provisions was considered, and concerning that liability no question now arises.

In 1866 (Laws of that year, chap. 883) the defendant was authorized to extend its tracks from the junction of East Broadway and Grand street, through Grand street and other streets to the North river, subject, however, in case it accepted the franchise conferred by the act, to the payment into the treasury of five per cqnt of the net proceeds

p. 237

of the cars run on such extension, and (sec. 7) ail acts and parts of acts inconsistent with the provisions of the act were repealed so far as they were in conflict therewith. Some rights in other streets were acquired under other acts (Laws of 1866, chaps. 866-868), but they contain no provisions respecting license fees, or compensation to the city. Under these various acts the defendant, since 1866, has operated four distinct railroad routes under separate names, one of which is designated as the “Grand street line.” It is operated by cars run separately from those of other lines, and over the streets named in the act of 1866 (chap. 883), in connection with some of those named in the other act of 1866 (supra), and through Grand, Greenwich and Washington streets to East Broadway, streets designated and indicated in the act of 1860 (chap. 512). The defendant has paid percentages of its receipts, for cars running over this route, as provided by the act of 1866 (chap. 883), and the question for our determination is whether it is also liable to pay a license fee under the act of 1860 (chap. 512).

If, as the learned counsel for the appellant contends, the grant expressed by the act of 1866 (chap. 883) and its acceptance constitute a contract between the defendant and the state, it is to be construed as the language of the defendant, who derives a great privilege under it, and if either from ingenuity or carelessness it fails in expression and leaves a doubt as to its meaning, the doubt should be solved against the company, and liberally in favor of the public. The defendants can claim nothing that is not clearly given to them by the act. In this view the case was treated by the general term. 13 N. Y. State Rep , 396.

We find no difficulty, however, in sustaining the judgment upon the plain language of the several statutes. By the act of 1860 (supra) the license fee is imposed upon every car running upon the streets named in it. It being conceded that the cars of the defendant are operated on those streets, it is for them to show exemption from the tax. To that end the learned counsel for the appellants claims that the act of 1866 (chap. 883) repeals the license provision of the act of 1860. That would be so if either the provision made for compensation to the city by the act of 1866, was in conflict with the provision in the act of 1860, or if it covered the whole subject It seems to do neither. The several schemes control different groups of streets, and although the last, that of 1866, is described as an “ extension,” the act authorizing it does not profess to be, and is not in any sense an amendment of the first, that of 1860. Each franchise stands . upon the authority of, and subject to the burden imposed by a distinct statúte, and if the defendant avails itself of the privileges offered

p. 238

by both, we see no ground on which it can be relieved from paying the price exacted for it. The two statutes are not contrary in matter,- they lead to no absurd consequences, and it cannot be doubted that had the legislature intended that one should in any respect abrogate the other, or that any provision in one should stand in lieu of any provision in the other, that intention would have been expressed. It has not been, and there is nothing in the words used by them from which it can be implied. Both statutes are in operation. If placed side by side nothing can be found in one inconsistent with anything found in the other, and if the defendant pays the license fee prescribed by the first, and the percentage called for by the other, and so complies with the conditions upon which the company received in succession the respective franchises, it will not have made a double payment nor have paid twice for the same thing.

We agree, therefore, with the general term, and think its order should be affirmed, and in pursuance of the stipulation the plaintiff have judgment absolute.

Action No. 2.

The record in this cáse presents the same question as in action No. 1, and it is to be disposed of in the same way.

The order of the general term is therefore affirmed and judgment absolute ordered for the plaintiff on the stipulation.-

All concur.