In re Metropolitan Transit Co.

By chapter 833 of the Laws of 18Í2, the legislature created a body corporate under the tithe of “The Metropolitan Transit Company.” Its capital stock was fixed at $5,000,000, with liberty to the stockholders to in-, crease it, but accompanied by a provision that “work on the road authorized by the act, should not be commenced until ten per cent of the capital stock shall have been paid in in cash.” The corporation so creatéd was endowedwi ill all the powers and privileges, .and made subject to all the provisions of the act of 1850 (chap. 140), so far as the samé were consistent with the provisions of the act first mentioned (1872, chap. 833), and authorized to construct a railroad on the line described in the act, and beneath and over certain specified streets in the city of New York.

The act indicates the streets and routes, forming a main line and branches, and the use and occupancy of the streets are limited by its provisions (secs. 3, 4). The route or line described was to begin at Broadway opposite Bowling Green, and terminate, after passing through the enumerated streets, at the Harlem river, and three branches, the first from a point south of Forty-second street, oír and th connect with the line described in the act above referred to; “easterly and northerly to the Grand Central depot at Forty second street and Fourth avenue.”

The act also provided that “the exact location of the lines of the three branches heretofore authorized shall bé such as is deemed most practicable and best calculated to promote the public interests by a board to be composed of the state engineer and surveyor, the chief engineer of the Croton aqueduct and an engineer to be appointed by the corporation hereby created. The necessary surveys and maps for determining the lines of said branches shall be made under the direction of the said board of engineers at the expense of the corporation hereby created.” The line prescribed in some instances passed through private property,, and the act declared that the road should be constructed upon property “to be purchased or acquired,” and that the corporation might purchase and occupy a space not more than fifty feet in width upon the lines indicated, and might also, make the necessary connections, stations, etc., and acquire land necessary for those purposes, and if unable to do so by purchase through inability to agree with the owners, it might obtain title “in the manner and by the proceedings!

It also provides that “where the route or routes of the railroads herein ruthorized to be constructed and operated shall be along any street, avenue or public place, the said corporation shall compensate the corporation of the city of New York for such use or occupancy of said streets, avenues" or public'places; the amount of'such compensation to be determined in the sanie manner as damages to private .property.” ' "

The corporation so formed was given (§ 12) six months from the time of “the first election of directors within, which to commence the construction of the said railways, B,nd "one year thereafter within which to complete at least one" of said railways to the Harlem river, and one branch road' to the Grand Central depot at Forty-second street and Fourth avenue.”

On the 28th of December, 1875, the company so formed, presented a petition to the supreme court, stating,among other things “ that-it is-the intention of said'company, in good'faith, .to construct-, operate and maintain a railroad on the lfiiés mentioned in' Said act, and the necessary sidings,, switches, depots and workshops, and to convey passengers, freight and property in cars propelled by steam power, as mentioned in said act; ” that it desires to ascertain the amount which, under its charter must be paid to the city in relation to the construction of its road in such portions of the streets as are required for the described routes, referring to the act of 1872, and stating that they have been unable to agree with the city authorities as to the-required amount, and'they ask for the appointment of commissioners of ap - praisal to ascertain the same. The hearing on this petition

The supplemental petition reiterated the prayer for the appointment of commissioners of appraisal, and the city answered, putting in issue many of the allegations of the petitioners, and denying among other things that it is the intention of the company to construct and operate a road as mentioned in the act of 1872, alleging that “ the petitioner does not control sufficient pecuniary means to successfully perform the work proposed; that neither the petitioner’s capital or credit is sufficient to enable it to commence, carry, on, or complete the construction of its proposed railroads/ or to properly compensate the public and private interests which will inevitably suffer in the building and operation of its proposed railroads,” and alleged that the company did not begin the construction of the road as required by section 12, of the act of 1872, or spend ten per cent of its capital thereon, or finish its road, or put it in operation within the times limited by chapter 775 of the Laws of 1867, or of section 47 of the general railroad act, passed April 2, 1850, a§ amended by chapter 775, of the Laws of 1867; that its right to exercise its corporate powers under the said acts has wholly ceased by reason of non user and delay; that in no event is there any right in the said Metropolitan Transit, Company, under said acts, or otherwise, to acquire 'any right of way, or any lands in said city, or to build any such railroad as it proposes along the following named streets, to wit: Broadway in the city of New York,ana the streets known as the boulevards in the city of New York; that the act of 1881 (chapter 636), is void as violating section 16 of article 3 of the constitution of the state; that neither in the title of the said act of 1881, nor in the body of the said act, was any power or authority given to locate any new route or routes for the lines of the petitioner’s proposed railroad. That acting in pursuance of authority alleged to have been

. Upon the hearing of the petition it appeared that the first election of directors was held on the 3d of July, 1874, and the secretary of state issued a certificate of the organization of the company. Among other things the city upon the objections raised by their answer, offered evidence to show the inability of the company to build the road, and other circumstances to controvert their expressed intention to do so. The judge held that the application was sufficient evidence of that intent, and excluded the evidence.

We agree with the general term in the conclusion that in so ruling the learned judge at special term erred. Good faith on the part of the company, so far at least as intention to - build and complete its road is concerned, is made essential by the act of 1850 (chap. 140, § 14), and there is no reason to suppose that the legislature, in giving life to this company, with power qualified in some degree at least by the provisions of that act, so far as they relate to the acquisition of land, or rights against the will of the owner, intended to dispense with this important condition. It was á fact stated, and being stated, was subject to denial and might be disproved. If it had not been stated, and it had appeared in evidence that such intention did not exist,. that the company did not intend to construct and finish the described road, the party affected by its proceedings would have “ shown cause against granting the prayer of the petition,” and any further action would have been idle. Section 15, act of 1850, supra.

.Moreover, the petitioners gave evidence to sustain the alleged intention, and that offered by the city was competent in answer to it. This difficulty might be got along with upon another application or rehearing. There are others of a fatal and conclusive character. One of these is found- at the starting point of the proceedings in question.

■ The privilege given to the Metropolitan Transit Company was defined and limited by the act (Laws of 1872), and it was bound to exercise the privilege, if at all, according to 'the terms in which it was. conferred. It could not take part and reject the rest. As a condition upon which the court could be asked to intervene in its favor, the company must show, under the solemnity of an oath, that it is its “intention in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association.” Laws of. 1850, supra.

The statute describes the streets through which the line may pass, authorizes branches connecting with it, but, as above stated, leaves' their exact location to be fixed by a board of engineers.

The supplemental petition embraces these last locations. First. So far as the main line, or “the line,” as it is called in the statute, is concerned, neither board had jurisdiction to name the streets through which it should pass. It is defined by statute and the statute itself declares that the corporation shall “have no right to acquire the use or occupancy of any of the streets or public places of the city of New York under the provisions of said acts, or by any agreement or grant of the city authorities, except such use or occupancy as is granted or provided for in this act, and except such temporary rights and privileges during the period of constructing said railways authorized in this act,, as the proper authorities may grant to said corporation to facilitate such construction.”

No discretionary power is vested in the board as to this line, and the company, if they took any part of the franchise as to the main line, were bound to take it as given. They could not operate over one street and avoid another, nor could they substitute a street not named. As to that line, so described, the court had no jurisdiction. The learned counsel for the appellant contends, however, that if the location of the main line cannot be sustained as within the authority of the act of 1872, the branches need not also fail. The rule I have referred to forbids this conclusion. A charter must be accepted or rejected in toto. If accepted, it must be taken as offered by the legislature. The one under which the claim is made contains no permission and confers no power to accept in part and reject in part. People v. Albany and Vermont R. R., 24 N. Y., 261 .

It follows that the branch line locations are ineffectual. The statute has in view a main line and’ branches, the whole accommodating the public over a large territory. A branch or two of these disconnected from the trunk might be of value to the owner, but such a gift was not described in the statute, and there is no reason to suppose it was in

Other questions have been presented by counsel for the appellant as against the objections of the respondent and argued with great ability and force. We do not think it necessary to discuss them, for in our opinion they would require no different conclusion from that which must follow the views above expressed.

; We think the order of the court below was right and should be affirmed.

All concur, except G-ray, J., not sitting.