Putnam, J.:
This appeal raises two question's: First. Has the city through its commissioner of plant and structures, power to operate this proposed railroad on the Williamsburg bridge? Second. If so, would it require the certificate from the Public Service Commission to authorize such operation?
The charter powers of the commissioner of plant and structures, as they had been conferred on April 27, 1920, are, therefore, to be examined. Under the terms of the Greater New York charter (Laws of 1901, chap. 466, § 595, as amd. by Laws of 1916, chap. 528; since amd. by Laws of 1921, chap. 170), he has no such express power, although he has control of the operation of the railroad on the New York and Brooklyn bridge (the original bridge of 1883). He has also general authority as to construction, repair, maintenance and management of other city bridges which extend across the waters of a navigable stream, or have a terminus in two or more boroughs. Notwithstanding these limitations, in which a specific enumeration of the commissioner’s powers are in marked contrast regarding city bridges, the right to operate this Williamsburg bridge railroad is now claimed from powers and franchises conferred upon the commission that erected that bridge, which have descended to and are now vested in the commissioner of plant and structures.
Reverting to the original New York and Brooklyn bridge, the Legislature had then to provide for an organized body to erect a span between two cities, with termini in two counties. It conferred broad powers on such trustees of this first bridge. Its trustees were made a quasi corporation. They had power to operate a railroad and to contract for such operation. • The Legislature conferred on them a complete franchise not only to operate a railroad, but to fix “ the fare to be paid by any passenger on any railroad operated by them.” (Laws of 1875, chap. 300, § 7.) In this act, and confirmed in later amendments, such franchise and full quasi corporate powers were granted.
[741] In the ensuing thirty years before consolidation, an additional • East River bridge had been projected. But very different powers came to this commission. It was to prepare a plan for building what was later called the Williamsburg bridge. (Laws of 1895, chap. 789.) This commission could purchase and condemn land, but it could not itself take title (§ 3.) Such title was to be in the name of the trustees of the New York and Brooklyn bridge. On completion of the new bridge all the commission’s records were not to remain in its archives, but instead were to be filed in the office of the trustees of the New York and Brooklyn bridge; and what seems more striking, after completion, the management and control was also to be vested in these other trustees, who (§ 7) should have in relation thereto “ like powers as are vested in them in relation to the said New York and Brooklyn bridge.” The restrictions as to any railroad franchise were more strongly negatived. With the consent of the mayors and comptrollers of the respective cities, the commission could purchase charter rights of any existing corporation to construct a bridge, such as the act contemplated, with authority, “ and thereby to take or extinguish any existing right of such corporation to operate any railroad across said bridge.” (§ 5.) The commissioners were empowered to contract with any corporation to operate a railroad across said bridge; and if necessary, to proceed to acquire such corporate rights and powers through condemnation proceedings.
Obviously such a scheme for this new commission to be humiliated as permanently subordinate to the old trustees of the New York and Brooklyn bridge would work ill in actual practice. So the following year (Laws of 1896, chap. 612) this act was amended. Title to lands acquired was to be in the corporate names of the cities of New York and Brooklyn, as joint tenants. (§ 3, as amd.) Instead of separately correcting all these detailed discriminations of the original act, this was comprehensively done (by amending § 7) in a declaration that the commissioners and their successors, instead of going out of office on completion of the bridge, were to continue in control. The formula used was: “ The said bridge shall thereupon be and become a public highway for the purpose of rendering travel * * * safe and certain at all [742] times, and the care, management and control thereof shall be vested in the said commissioners and their successors, who shall possess in relation thereto like powers as are at the time of the passage of this act vested in the trustees of the New York and Brooklyn bridge * * *, unless the Legislature shall otherwise provide therefor.”
Clearly this was far from conferring a railroad franchise. It was an attempt to redress the unfair discrimination against the new commission and was intended, as for the past score of years it had been always understood, as merely to confer full commission powers as to this newly planned bridge. Long before this bridge was built, city consolidation was accomplished. The city charter of 1897 had a department of bridges. That commissioner was to succeed to the offices and duties of the trustees of the New York and Brooklyn bridge “ so far as they are consistent with and conformable to the provisions of this act.” (§ 601.) Such commissioner of bridges, with the municipal assembly (changed by chapter 466 of the Laws of 1901 to “ board of aldermen ”), should “ exercise such duties and perform such powers, subject, however, to the provisions, directions and limitations of this act.” (Laws of 1897, chap. 378, § 601.)
The other provisions of the original Greater New York charter, to which this devolution of powers was declared to be subject, authorized the new commissioner of bridges to have cognizance and control of the management and maintenance of the New York and Brooklyn bridge, the operation of a railroad and the collection of fares and tolls upon that bridge, and on no other. (§ 595.) The Williamsburg bridge had not been then completed.
On December 19, 1903, the city opened the Williamsburg bridge, and though the Manhattan approaches were incomplete, it became a public highway. In 1916, when the department of plant and structures was created to succeed that of bridges, section 595 of the Greater New York charter was materially amended, but the commissioner’s cognizance and control respecting the operation of any railroad was limited to that on the New York and Brooklyn bridge. His power as to the collection of fares and of tolls is expressed as to that bridge only. (Laws of 1916, chap. 528.)
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Putnam, J.:
This appeal raises two question's: First. Has the city through its commissioner of plant and structures, power to operate this proposed railroad on the Williamsburg bridge? Second. If so, would it require the certificate from the Public Service Commission to authorize such operation?
The charter powers of the commissioner of plant and structures, as they had been conferred on April 27, 1920, are, therefore, to be examined. Under the terms of the Greater New York charter (Laws of 1901, chap. 466, § 595, as amd. by Laws of 1916, chap. 528; since amd. by Laws of 1921, chap. 170), he has no such express power, although he has control of the operation of the railroad on the New York and Brooklyn bridge (the original bridge of 1883). He has also general authority as to construction, repair, maintenance and management of other city bridges which extend across the waters of a navigable stream, or have a terminus in two or more boroughs. Notwithstanding these limitations, in which a specific enumeration of the commissioner’s powers are in marked contrast regarding city bridges, the right to operate this Williamsburg bridge railroad is now claimed from powers and franchises conferred upon the commission that erected that bridge, which have descended to and are now vested in the commissioner of plant and structures.
Reverting to the original New York and Brooklyn bridge, the Legislature had then to provide for an organized body to erect a span between two cities, with termini in two counties. It conferred broad powers on such trustees of this first bridge. Its trustees were made a quasi corporation. They had power to operate a railroad and to contract for such operation. • The Legislature conferred on them a complete franchise not only to operate a railroad, but to fix “ the fare to be paid by any passenger on any railroad operated by them.” (Laws of 1875, chap. 300, § 7.) In this act, and confirmed in later amendments, such franchise and full quasi corporate powers were granted.
[741] In the ensuing thirty years before consolidation, an additional • East River bridge had been projected. But very different powers came to this commission. It was to prepare a plan for building what was later called the Williamsburg bridge. (Laws of 1895, chap. 789.) This commission could purchase and condemn land, but it could not itself take title (§ 3.) Such title was to be in the name of the trustees of the New York and Brooklyn bridge. On completion of the new bridge all the commission’s records were not to remain in its archives, but instead were to be filed in the office of the trustees of the New York and Brooklyn bridge; and what seems more striking, after completion, the management and control was also to be vested in these other trustees, who (§ 7) should have in relation thereto “ like powers as are vested in them in relation to the said New York and Brooklyn bridge.” The restrictions as to any railroad franchise were more strongly negatived. With the consent of the mayors and comptrollers of the respective cities, the commission could purchase charter rights of any existing corporation to construct a bridge, such as the act contemplated, with authority, “ and thereby to take or extinguish any existing right of such corporation to operate any railroad across said bridge.” (§ 5.) The commissioners were empowered to contract with any corporation to operate a railroad across said bridge; and if necessary, to proceed to acquire such corporate rights and powers through condemnation proceedings.
Obviously such a scheme for this new commission to be humiliated as permanently subordinate to the old trustees of the New York and Brooklyn bridge would work ill in actual practice. So the following year (Laws of 1896, chap. 612) this act was amended. Title to lands acquired was to be in the corporate names of the cities of New York and Brooklyn, as joint tenants. (§ 3, as amd.) Instead of separately correcting all these detailed discriminations of the original act, this was comprehensively done (by amending § 7) in a declaration that the commissioners and their successors, instead of going out of office on completion of the bridge, were to continue in control. The formula used was: “ The said bridge shall thereupon be and become a public highway for the purpose of rendering travel * * * safe and certain at all [742] times, and the care, management and control thereof shall be vested in the said commissioners and their successors, who shall possess in relation thereto like powers as are at the time of the passage of this act vested in the trustees of the New York and Brooklyn bridge * * *, unless the Legislature shall otherwise provide therefor.”
Clearly this was far from conferring a railroad franchise. It was an attempt to redress the unfair discrimination against the new commission and was intended, as for the past score of years it had been always understood, as merely to confer full commission powers as to this newly planned bridge. Long before this bridge was built, city consolidation was accomplished. The city charter of 1897 had a department of bridges. That commissioner was to succeed to the offices and duties of the trustees of the New York and Brooklyn bridge “ so far as they are consistent with and conformable to the provisions of this act.” (§ 601.) Such commissioner of bridges, with the municipal assembly (changed by chapter 466 of the Laws of 1901 to “ board of aldermen ”), should “ exercise such duties and perform such powers, subject, however, to the provisions, directions and limitations of this act.” (Laws of 1897, chap. 378, § 601.)
The other provisions of the original Greater New York charter, to which this devolution of powers was declared to be subject, authorized the new commissioner of bridges to have cognizance and control of the management and maintenance of the New York and Brooklyn bridge, the operation of a railroad and the collection of fares and tolls upon that bridge, and on no other. (§ 595.) The Williamsburg bridge had not been then completed.
On December 19, 1903, the city opened the Williamsburg bridge, and though the Manhattan approaches were incomplete, it became a public highway. In 1916, when the department of plant and structures was created to succeed that of bridges, section 595 of the Greater New York charter was materially amended, but the commissioner’s cognizance and control respecting the operation of any railroad was limited to that on the New York and Brooklyn bridge. His power as to the collection of fares and of tolls is expressed as to that bridge only. (Laws of 1916, chap. 528.)
[743] I conclude that the claim of a franchise power over any bridge between two different boroughs in the greater city would be as tenable as to say at this day that such commissioner has unearthed a railroad franchise upon the Williams-burg bridge by reason of general words in the amendment of 1896. There is the further difficulty to suppose that the Legislature’s grant to a corporation like the trustees of the New York and Brooklyn bridge was meant in 1896 and 1901 to be transferred to an individual departmental head, such as the former commissioner of bridges, or the present commissioner of plant and structures. No doubt section 601 of the original Greater New York charter did transfer to the commissioner of bridges the power to continue operating a railroad and collecting fares on the New York and Brooklyn bridge. But where was given or transferred any franchise for a railroad on the Williamsburg bridge? It never existed, and was never before asserted. (See Schinzel v. Best, 45 Misc. Rep. 455; affd., 109 App. Div. 917.) By the charter, the commissioner’s powers over bridges other than the New York and Brooklyn bridge, are those of construction, repair, maintenance and management, and this specification by ordinary statutory construction, limits and excludes other bridges. (See Manhattan Bridge Three-Cent Line v. Third Ave. R. Co., 154 App. Div. 704.)
In such legislative grants of a right to exact fares, nothing should depend on mere implication. This is on a principle that serves to defeat any purpose concealed in the use of terms not apparent on the face of the act, and requires open dealing with legislative bodies. (12 R. C. L. “ Franchises,” § 21, p. 194.) As was laid down long ago in grants by the public, nothing passes by implication. (Charles River Bridge v. Warren Bridge, 11 Pet. 420.)
Second. The majority of the court are also of opinion that such an application as is here made requires the approval of the Public Service Commission. It is not alone the additional track, but the more complicated question of the safety and convenience of the public. On any view of the plaintiff’s rights, it is not under a legislative command, as was the Hudson Valley railroad, in Village of Fort Edward v. Hudson Valley R. Co. (192 N. Y. 139).
[744] Hence I advise that the orders of the Special Term, both appointing commissioners and confirming their report, be reversed, with ten dollars costs and disbursements to the appellant.
Jaycox, J., concurs; Blackmar, P. J., concurs in a separate opinion; Mills, J., reads for affirmance, with whom Kelly, J., concurs.
Blackmar, P. J.:
I am inclined to agree with Mr. Justice Putnam that the statutes, read together, cannot be construed as vesting in the departmental official known as the commissioner of plant and structures a franchise to operate a railroad over the Williamsburg bridge. By the act authorizing the construction of the Brooklyn bridge, the power to operate and contract for the operation of a railroad over the bridge was given to the trustees of the New York and Brooklyn bridge. This was a quasi corporation which held the bridge as trustees for the cities of New York and Brooklyn, and the act, I think, conferred upon these trustees a franchise to operate a railroad over the bridge, which was an extension of a public highway.
The statutes regarding the commissioners of the Williams-burg bridge, in 1895 and 1896, have been cited. The question is whether by these statutes and by the charter of 1897, together with the amendments of 1901 and 1916, the franchise which theretofore was conferred upon the trustees of the New York and Brooklyn bridge was extended to the Williamsburg bridge and vested in the commissioner of plant and structures.
I find it extremely difficult to hold that a franchise conferred upon a quasi corporation like the trustees of the New York and Brooklyn bridge was meant to be transferred to an individual departmental official such as the commissioner of plant and structures unless the intent plainly so appeared and even then it might be doubtful.
I can understand how such a franchise might be transferred to the city of New York. Section 601 of the original Greater New York charter (Laws of 1897, chap. 378) provides that upon the appointment of the commissioner of bridges the respective offices of the trustees of the New York and Brooklyn [745] bridge shall be vacated and the powers and duties which vested in and devolved upon them shall, so far as they are consistent with and conformable to the provisions of the act, devolve upon the commissioner of bridges of the city of New York and upon the municipal assembly. This was a transfer of the power to operate a railroad from the trustees of the New York and Brooklyn bridge to the commissioner of bridges and the municipal assembly, in effect to the city of New York.
As to the Williamsburg bridge I cannot find that there is. anything which indicates that this franchise was transferred to the city of New York. The commissioner of plant and structures is simply the head of a department. His duties are prescribed by statute. They are special as to the New York and Brooklyn bridge, but they are duties of operation only; and as to the Williamsburg bridge, by the charter of 1901, his powers over bridges other than the New York and Brooklyn bridge are powers of construction, repair, maintenance and management. The clause in the act quoted, “ The board of commissioners established by chapter seven hundred and eighty-nine of the laws of eighteen hundred and ninety-five is hereby abolished, and all its powers and duties are hereby devolved upon the commissioner of plant and structures of the city of New York,”