BROWN, P. J.
The decision of the learned judge who heard this case at the special term is that “the court has found that such consents were granted by the common council of the city fraudulently, and as a matter of favor to the defendant companies, and for a less sum than could be secured for them in the exercise of reasonable diligence.” There is no allegation in the complaint that the aider-men were corrupt, or that the consents were the product of corruption; and the learned counsel for the plaintiff upon the argument expressly disavowed any claim to uphold the judgment upon that ground. An examination of the complaint and the testimony shows that the theory upon which the action was tried and decided was that the granting of the consents to the defendant companies “for a [1074] less sum than could be secured for them in the exercise of reasonable diligence” .was a waste of the city property, and in that sense a fraudulent act; and. that such is the sense in which the term “fraudulent” is used in the decision will appear from the allegation of the complaint and the opinion of the judge who tried the case. 33 N. Y. Supp. 732. The material allegations of the complaint are that the Union Stréet-Bailroad Company, in or about the months of June or July, 1892, “offered to compensate the city for the fair market value of the right to construct and operate a railroad through the said streets, such compensation to be fixed by the common council, or determined by a sale of the said right at public auction”; that in May, 1893, it, in substance, repeated said offer; that in June, 1893, it requested the committee “to fix the terms and conditions upon which the grants of the consent of said city would be made, so that competitors might be enabled to frame their bids”; that it offered to pay for such grant certain named sums per mile, and requested, if any other or better offer was made, it be informed thereof, “so that it might increase its money offer and bid in conformity with such other proposition”; that the common council “wrongfully, in violation of their official duties * * " and illegally and in waste of the property, funds, effects, and estate of said city,” passed the resolution complained of. It is further alleged “that the right to construct, operate, and maintain a street-surface railroad over the streets and avenues * * * is a part of the property, funds, and effects of the city of Brooklyn, for which more could be realized by said city than is provided for in said resolution, and that by the constitution and laws of the state the granting of said right to construct and operate a railroad on the said streets was vested in the mayor and common council for the said city, and in order that such grant might he made for the best attainable price, and for the pecuniary advantages of said city; * * * and the said power to make such grant was part of the property of said city, and could not be awarded for a price while any one was ready to pay a better price therefor.”
The opinion states the two propositions of fact essential to be established by the plaintiff were “(1) that the franchises were granted for a less sum than could be obtained from a competing company; |2) that such franchises were given in bad faith, and as a matter of favoritism to the defendant companies.” It is evident from the opinion delivered at special term and from the argument of counsel for the plaintiff that the decision was based upon the case of Adamson v. Union R. R. Co., 74 Hun, 3, 23 N. Y. Supp. 136. That case may stand as an authority for the interference of the courts with municipal affairs upon the precise facts there existing, but if it is to be deemed an authority that the courts may, in a taxpayer’s action, restrain the execution of ordinances and laws passed by municipal authorities in matters committed by the constitution of the state to their judgment and discretion, it is in conflict with well-settled principles of law, and I shall in this opinion endeavor to show that the act of the municipal authorities of the city in granting the consent to the defendant companies violated no provision of law and was a valid exercise of power, and, being legislative in its character, is not [1075] subject to the review of the courts. The facts which will permit the maintenance of an action by a taxpayer against municipal officers, and authorize the courts to interfere in the administration of municipal affairs and restrain officials within the limits of their powers, are quite well settled by recent decisions of the court of appeals.
In Talcott v. City of Buffalo, 125 N. Y. 280, 26 N. E. 263, the court said:
“We have referred to the origin of this statute under which the action is brought, the title of the act of 1872, and the language used by the legislature subsequently, when re-enacting it in 1881 and 1887, for the purpose of ascertaining whether it was intended to authorize a taxpayer to maintain an action against the members of the common council in a city, and the administrative officers thereof, for the purpose of restraining officials acting within the limits and scope of their powers and discretion, such as is alleged in the complaint in this action, and we are of the opinion that it was not. Full force and effect can be given to the statute by confining it to a case where the acts complained of are without power, or where corruption, fraud, or bad faith, amounting to fraud, is charged.”
And in Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. 471, it was again said:
“We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.”
In Talcott’s Case, the acts sought to be enjoined were within tht power and discretion of the common council, but were not charged to have been corrupt or dishonest. A demurrer to the complaint was sustained, and the suit dismissed. In Ziegler’s Case an injunction was sustained on the sole ground that the contract entered into by the city officials was illegal and void.
The decisions in the cases cited followed logically the rule that in the review of a legislative act the courts are confined to the consideration solely of the question of power. In People v. Draper, 15 N. Y. 533, after referring to the constitutional restraints upon legislation, Judge Denio said:
“If a particular act of legislation does not conflict with any of the limitations or restraints which have been referred to, it is not in the power of the courts to arrest its execution, however unwise its provisions may be, or whatever the motive may have been which led to its enactment.”
In People v. Flagg, 46 N. Y. 401, in speaking of the power of the courts to correct legislative abuses, Chief Judge Church said:
“But when power is conceded, we have no right to inquire into the motive or reason for doing a particular act.”
Such is the universal rule arising out of the form of our government, and settled by a long line of authorities, and it is fully applicable to the review of acts of municipal corporations done in the exercise of governmental powers. Judge Cooley, in ,his work on Constitutional Limitations (page 209), says:
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BROWN, P. J.
The decision of the learned judge who heard this case at the special term is that “the court has found that such consents were granted by the common council of the city fraudulently, and as a matter of favor to the defendant companies, and for a less sum than could be secured for them in the exercise of reasonable diligence.” There is no allegation in the complaint that the aider-men were corrupt, or that the consents were the product of corruption; and the learned counsel for the plaintiff upon the argument expressly disavowed any claim to uphold the judgment upon that ground. An examination of the complaint and the testimony shows that the theory upon which the action was tried and decided was that the granting of the consents to the defendant companies “for a [1074] less sum than could be secured for them in the exercise of reasonable diligence” .was a waste of the city property, and in that sense a fraudulent act; and. that such is the sense in which the term “fraudulent” is used in the decision will appear from the allegation of the complaint and the opinion of the judge who tried the case. 33 N. Y. Supp. 732. The material allegations of the complaint are that the Union Stréet-Bailroad Company, in or about the months of June or July, 1892, “offered to compensate the city for the fair market value of the right to construct and operate a railroad through the said streets, such compensation to be fixed by the common council, or determined by a sale of the said right at public auction”; that in May, 1893, it, in substance, repeated said offer; that in June, 1893, it requested the committee “to fix the terms and conditions upon which the grants of the consent of said city would be made, so that competitors might be enabled to frame their bids”; that it offered to pay for such grant certain named sums per mile, and requested, if any other or better offer was made, it be informed thereof, “so that it might increase its money offer and bid in conformity with such other proposition”; that the common council “wrongfully, in violation of their official duties * * " and illegally and in waste of the property, funds, effects, and estate of said city,” passed the resolution complained of. It is further alleged “that the right to construct, operate, and maintain a street-surface railroad over the streets and avenues * * * is a part of the property, funds, and effects of the city of Brooklyn, for which more could be realized by said city than is provided for in said resolution, and that by the constitution and laws of the state the granting of said right to construct and operate a railroad on the said streets was vested in the mayor and common council for the said city, and in order that such grant might he made for the best attainable price, and for the pecuniary advantages of said city; * * * and the said power to make such grant was part of the property of said city, and could not be awarded for a price while any one was ready to pay a better price therefor.”
The opinion states the two propositions of fact essential to be established by the plaintiff were “(1) that the franchises were granted for a less sum than could be obtained from a competing company; |2) that such franchises were given in bad faith, and as a matter of favoritism to the defendant companies.” It is evident from the opinion delivered at special term and from the argument of counsel for the plaintiff that the decision was based upon the case of Adamson v. Union R. R. Co., 74 Hun, 3, 23 N. Y. Supp. 136. That case may stand as an authority for the interference of the courts with municipal affairs upon the precise facts there existing, but if it is to be deemed an authority that the courts may, in a taxpayer’s action, restrain the execution of ordinances and laws passed by municipal authorities in matters committed by the constitution of the state to their judgment and discretion, it is in conflict with well-settled principles of law, and I shall in this opinion endeavor to show that the act of the municipal authorities of the city in granting the consent to the defendant companies violated no provision of law and was a valid exercise of power, and, being legislative in its character, is not [1075] subject to the review of the courts. The facts which will permit the maintenance of an action by a taxpayer against municipal officers, and authorize the courts to interfere in the administration of municipal affairs and restrain officials within the limits of their powers, are quite well settled by recent decisions of the court of appeals.
In Talcott v. City of Buffalo, 125 N. Y. 280, 26 N. E. 263, the court said:
“We have referred to the origin of this statute under which the action is brought, the title of the act of 1872, and the language used by the legislature subsequently, when re-enacting it in 1881 and 1887, for the purpose of ascertaining whether it was intended to authorize a taxpayer to maintain an action against the members of the common council in a city, and the administrative officers thereof, for the purpose of restraining officials acting within the limits and scope of their powers and discretion, such as is alleged in the complaint in this action, and we are of the opinion that it was not. Full force and effect can be given to the statute by confining it to a case where the acts complained of are without power, or where corruption, fraud, or bad faith, amounting to fraud, is charged.”
And in Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. 471, it was again said:
“We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.”
In Talcott’s Case, the acts sought to be enjoined were within tht power and discretion of the common council, but were not charged to have been corrupt or dishonest. A demurrer to the complaint was sustained, and the suit dismissed. In Ziegler’s Case an injunction was sustained on the sole ground that the contract entered into by the city officials was illegal and void.
The decisions in the cases cited followed logically the rule that in the review of a legislative act the courts are confined to the consideration solely of the question of power. In People v. Draper, 15 N. Y. 533, after referring to the constitutional restraints upon legislation, Judge Denio said:
“If a particular act of legislation does not conflict with any of the limitations or restraints which have been referred to, it is not in the power of the courts to arrest its execution, however unwise its provisions may be, or whatever the motive may have been which led to its enactment.”
In People v. Flagg, 46 N. Y. 401, in speaking of the power of the courts to correct legislative abuses, Chief Judge Church said:
“But when power is conceded, we have no right to inquire into the motive or reason for doing a particular act.”
Such is the universal rule arising out of the form of our government, and settled by a long line of authorities, and it is fully applicable to the review of acts of municipal corporations done in the exercise of governmental powers. Judge Cooley, in ,his work on Constitutional Limitations (page 209), says:
“And the same presumption, that legislative action has been devised and adopted on adequate information and under the influence of correct motives, [1076] will be applied to the discretionary action o£ municipal bodies and o£ the state legislature, and will preclude, in the one case as in the other, all collateral attack.”
And in Milhau v. Sharp, 15 Barb. 213, in speaking of the power of the common council of the city of New York, it was said:
“As far as it acts in the exercise of its public political powers and within the limits of its charter, it is vested with the largest discretion; and whether its laws are wise or unwise, whether they are passed from good or bad motives, it is not the power of this court to inquire.”
That in granting the assents to the defendant companies the mayor and common council were exercising a legislative power is too plain to require argument. The power to grant or withhold consent to the construction of a street railroad does not emanate from the legislature, but is devolved upon the municipal authorities by the constitution. The provision of the constitution is a restriction upon the legislature, and forbids the enactment of any law authorizing the construction or operation of a street railroad, except upon the consent of the local authorities having control of the street or highway upon which it is proposed to construct the road, or, in lieu thereof, the determination of commissioners appointed by the general term that such railroad ought to be constructed and operated. The power thus given is governmental, and to the extent that it is held and exercised the local authorities are clothed with sovereignty, and are as independent in its exercise as is any other department of the government; and, in my judgment, the court can no more inquire into the motives which governed or controlled the lawful exercise' of the power than it could inquire into the motives which induce the governor to give his assent to an act of the state legislature. The only question, therefore, which the court was permitted to investigate and decide in this case was whether the granting of the consents to the defendant companies was a legal act. As I have already pointed out, the plaintiff alleged it to be illegal, and this assertion was founded upon the allegations (1) that the power to make such grant was a part of the property of the city, and (2) that it could only be awarded to the person offering the highest price therefor. Whether the right to grant consent to the use of the streets can be deemed the property of the city within the meaning of the acts of the legislature authorizing taxpayers’ actions would seem not to be a very pertinent inquiry in view* of the constitutional provision empowering the common council to do the very thing complained of. But the contention that the right to grant the consent to operate a street railroad is property of the city cannot, I think, be sustained. The law is quite well settled that a municipal corporation has no private estate or interest in the public streets within its borders. While it is said to hold the title to the bed of the streets, its title is that of a trustee for the people of the whole state. This was expressly decided in People v. Kerr, 27 N. Y. 188, it being there said by Judge Wright that the trust of the city was public! juris, held, not for the benefit of the people of the city alone, but for the people of the whole state, as the agent of the state, and a part of its governmental [1077] machinery; and Judge Emott, in the same case, speaking of the title of the city of New York to the streets, and the power of that corporation over the same, said:
“This is a trust for the benefit of the public; not of the adjacent proprietors, nor of the inhabitants or citizens of New York alone, but of the whole people. * * » The title thus vested is as directly under the power and control of the legislature for any public purpose as any property held by the state, or by any public body or officer; and its application cannot be changed by a corporation which, in respect to such property, at least, zs a mere agent of the sovereign power of the people.”
This rule has, since that case was decided, repeatedly been stated by the court of appeals. The absolute control of the streets, and the direction as to their use, is in the legislature. The constitutional provision which requires the consent of the local authorities to the construction and operation of a street railroad has not abridged this legislative power. It has only qualified or regulated it. The legislature may still grant the use of the streets subject only to the condition that the consent of the local authorities be obtained before the road is constructed or operated. The franchise proceeds from the legislature, and the consent of the local authorities is the performance of a condition without which the road cannot be constructed. In re Thirty-Fourth St. R. Co., 102 N. Y. 343, 7 N. E. 172. The city has no power to alienate or appropriate the city streets, and has no property rights therein; and the provision of the statute1 authorizing an action to prevent a waste of the estate and other property of a municipality plainly refers to property owned by the city, and within its power of disposition.
We thus reach the question whether the common council was bound to grant the consents to the person offering the highest price therefor. The plaintiff strenuously insists that it was, and as one ground for declaring the consent void has referred us to a provision of the charter of the city, enacted in 1861, declaring it unlawful to grant the right to construct a street railroad except to the person who will agree to carry passengers on such railroad at the lowest rate of fare. We are of the opinion that this provision of the charter is superseded by the general railroad law (Laws 1890, c. 565), which declares that every railroad corporation has the power to construct its road across, along, or upon any highway which the route of its road shall intersect or touch, subject to the limitations and requirements of that chapter. That the legislature intended this act to do away with all provisions of local laws is, we think, very plain, and is especially made so by the amendment of section 92 by chapter 434, Laws 1893. The validity of a street-railroad franchise is, therefore, to be determined under the railroad law as limited by the provisions of the constitution heretofore referred to. There is no provision of the railroad law which requires that in the city of Brooklyn the right and privilege of using any street shall be sold to the highest bidder. The provision that such privilege shall be sold at public auction is now limited in its application to the city of New York. In the city of Brooklyn and other cities of [1078] the state the local authorities are given the power to require the payment annually into the treasury of the city of such percentage of gross receipts, not exceeding 3 per cent., as they may deem proper. The policy of the state, in this regard, as expressed in the statute of 1886 (chapter 65), which required as a condition of the consent to use the streets a sale of the privilege at public auction, has, by recent legislation, been completely reversed as to the whole state, except the city of New York. Under the present law it is entirely discretionary with the local authorities whether they will require, as a condition to the grant of the consent, the payment into the treasury of any portion of the gross receipts of the railroad to be constructed and operated therein. General Railroad Laws, §§ 93, 95.
The testimony shows that all the proceedings before the common council were regular, and that no formality made requisite to its final action was omitted; and as the right to grant consent to construct a railroad in the streets of the city is not the property of the city, and the local authorities are not required to grant such consent to the highest bidder, the conclusion necessarily follows that the grant to the defendant companies was a valid exercise of legislative power, and as such is not within the province of judicial review. By the constitution and laws of the state the granting of the consents, and the terms upon which they should be given, were ■committed to the judgment and discretion of the mayor and common council of the city. In enacting the resolution complained of they exercised a part of the sovereign power of the people, and, as was said by one of the ablest judges of our state, however unwise their action, whatever the motive may have been which led to the passage of the resolution, the courts have no power to arrest its execution.
The judgment must be reversed, and the complaint dismissed, with costs.
PRATT, J., concurs.