In re the New York & Long Island Bridge Co. — 27 N.Y. St. Rep. 503

Majority

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In the Matter of the New York & Long Island Bridge Co.^[1]

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Bridges—Constitutional law—Laws 1885, chap. 392.

Petitioner was incorporated by chap. 395, Laws 1867, for the purpose of building a bridge, no description of bridge being prescribed. By chap. 393, Laws 1885, the time for building the bridge was extended, and it was provided that it should be for railway, foot and carriage travel. Held, that while the legislature had power to waive the forfeiture under the former act it had no power to grant a right to lay railroad tracks; that the proviso that it should be built for railway travel was unconstitutional and was so far interwoven with the other purposes of the act that it could not be severed, leaving the revival of the old charter to stand.

Appeal from an order denying the petitioner’s application for the appointment of commissioners to ascertain and appraise the compensation to be made to the city of New York for so much of Blackwell’s Island as may be required by the New York & Long Island Bridge Company for the purpose of constructing and operating its proposed bridge over the East river from the city of New York to Long Island.

Francis M. Scott, for app’lt; David J. Dean, for resp’t.

In denying the petitioner’s application at special term, Presiding Justice Van Brunt filed a careful opinion which in my judgment demonstrates the unconstitutionality of the act, Laws of 1885, ch. 392, under which these proceedings are instituted. But little may be added to this opinion. The original act under which the petitioner was incorporated, Laws of 1867, ch. 395, conferred upon it no authority to construct a bridge for railway travel. That act plainly contemplates an ordinary bridge for the passage of “persons, animals, carriages and vehicles.” In § 6 -of the act, provision is made for the usual toll-gates and rates of toll. In § 7, the purchase of the bridge by the counties of New York and Queens is authorized “ provided it be made free to be passed by travelers and vehicles without toll or other charges.” There is not a suggestion of any other than the ordinary and well-understood use. Bailroad bridges or bridges for railway purposes were entirely different structures created for different purposes, governed by different rules and requiring as a pre-requisite to "their construction, legislative authority. A bridge of the latter ■character was never contemplated by this act nor indeed by any of the numerous amendments thereto down to that of 1885. The appellant misapprehends the language of the presiding justice in this regard. He nowhere intimates that the act of 1867 autho

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rized the building ofta bridge for railway travel. On the contrary,, referring to all the acts passed prior to that of 1885, he declares that in none of them does any power to build a bridge for railway travel seem to have been conferred. He does not say that, but for the constitutional inhibition of 1875, there seems to be no reason why the bridge might not have been built capable of accommodating railway travel.

Clearly what he means by this observation is that but for the constitutional inhibition the act of 1885 would be valid and the--bridge might then have been built for railway travel under its express authority. Such is the view I take of his opinion, and this view is borne out by these various statutes. The first attempt to bring in the railway element is in this act of 1885. When it was, passed, the petitioner’s charter had been forfeited by the failure to-comply with the act of 1879, chap. 426. This latter act was a legislative waiver of previous forfeitures, but it provided that the-construction of the bridge should be commenced “ under contract for the entire structure within two years’’ from the 30th of May, 1879. § 1. Nothing was done by the petitioner towards the-commencement of construction within the time so limited, and consequently the forfeiture declared by the original act, § 12 of chap. 395, Laws 1867, became operative. Matter of Brooklyn & Newtown R. R. Co., 72 N. Y., 245 . This case distinctly holds-that the penalty for non-compliance with such a condition, declared in the original act, attaches to non-compliance with the act enlarging or extending the term. The penalty for non-complionce, specified in the act of 1867, is that “ this act and all rights- and privileges granted hereby shall be null and void.”

Now while the legislature in 1885 had power to waive the forfeiture of May, 1881, just as it had waived previous forfeitures, it had not the power, under the guise of this waiver and under the-semblance of reviving the forfeited charter, to confer a distinctly new right never before thought of, namely, the right to build the-bridge for railway travel. It is entirely apparent that this was an-evasion of the constitution. The act, with this new right speciously embodied in it, was evidently applied for and obtained because of a complete change in the petitioner’s original scheme.

The proofs show that the idea of a bridge for the passage of persons, animals, carriages and vehicles, as contemplated by the-original act, had been entirely abandoned. The bridge and it-s-approaches are now designed for a double track railway. It is-simply a railway viaduct, upon which both through and local-trains are to be run. There are to be no carriage ways, and even-the “ limited ” footway is to be mostly for bridge service.

I do not doubt that the power of the legislature to grant special charters for the building of bridges over the East river is limited by the constitutional prohibition against the passage of a private- or local bill granting to any corporation, association, or individual the right to lay down railroad tracks. The right conferred by the-act of 1885 to build the bridge in question for railway travel plainly implies a grant of the right to lay down railroad tracks- and thus runs counter to the constitutional prohibition. The pre

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siding justice’s reasoning on this head is quite satisfactory and needs no amplification.

The same observation applies to his treatment of the petitioner’s effort to sever this grant from what would otherwise have been a valid waiver of the existing forfeiture.

The unauthorized grant was so interwoven with the other provisions and purposes of the act that it cannot be severed therefrom and rejected, leaving the revival of the old charter to stand. See Cooley on Const. Limitations, p. 213; In re N. Y. Dist. R. Co., 107 N. Y., 54 , 55; 11 N. Y. State Rep., 753 ; Allen v. Louisiana, 103 U. S., 80 .

There is still another, and an equally fatal difficulty in the petitioner’s way, and that is that it has again forfeited all its rights and privileges. I mean the very rights and privileges attempted to be conferred by the act of 1885. Section 3 of the act provides that the actual construction of the bridge shall' be commenced on or before the 30th day of May, 1888. The evidence is clear and conclusive that this provision was not complied with. The petitioner’s own proofs fail to show anything more than preparation prior to the 30th of May, 1888, while the-affidavits read on behalf of the city give the 7th of June, 1888, as the precise date when the first cargo of stone was placed upon Blackwell’s Island by any representative of the petitioner. It follows, on the authority of the case previously cited, 72 N. Y., 245 , that upon the failure of the petitioner to commence the actual construction of the bridge within the time limited by the act of 1885, the penalty attached to the original condition, declared in the act of 1867, became operative and all rights and privileges granted to the relator became null and void.

It is not necessary therefore to consider the question whether the legislature intended to appropriate any part of Blackwell’s Island to the use of this bridge company nor to consider any of the other questions which were so thoroughly discussed.

The order appealed from, for the reasons assigned, as well as those furnished by the presiding justice, should be affirmed, with costs.

Daniels, J., concurs.