Hanrahan v. Terminal Station Commission

152 A.D. 349, 136 N.Y.S. 1001, 1912 N.Y. App. Div. LEXIS 8537

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 1912
• Status: Published

Opinion

Foote,. J.:

We will first consider whether this statute violates section 10 of article 8 of the State Constitution, which, so far as pertinent, is as follows: “bio - * - city * * * shall hereafter . give any money or property, or loan its money or credit to or in aid of any individual, association or corporation * * * nor shall any such * _ * * city * * * be allowed to incur any indebtedness except for * * * city * * * purposes. ”

It is the contention of plaintiff and the defendant the city of Buffalo that this statute was intended to and does authorize and provide for payment by the city of Buffalo of a portion of the cost of lands to be acquired for railroad stations, tracks, etc., the title to which lands is to become vested-in the railroad company, and that such a contribution of city money falls within the prohibition of the above-quoted section of the. Constitution.

The defendant, the Terminal Commission, contends that the act, properly construed, does not authorize or contemplate such a contribution of city money to the railroad companies. Nor does this defendant claim that if the act does, contemplate the payment by the city of Buffalo of any part of the purchase price of lands for a new' or additional right of way or stations, yards, or facilities for improving and enlarging the terminals óf the railroads, it would be a valid exercise of legislative power. The question, therefore, turns upon the construction of the act, to ascertain its true intent and meaning.

The purpose of the act and the general power of the commissioners is thus stated in the 1st section: After naming the commissioners, this section proceeds, “ any seven of whom are authorized and directed to adopt, from time to time, plans for the purpose of relieving the congested condition of the railroad stations and terminals in the city of Buffalo, which plans shall require the railroads, or other transportation corporations operating within the city of Buffalo, to make such changes in the location or use' of any existing tracks, switches, terminals, stations or railroad facilities within said city, and which shall require the city to make such changes in the location or grades of the streets, alleys or lands owned by said city, adjacent to or contiguous to such tracks, switches, terminals, stations or facilities, which in the judgment of said commissioners will secure to the public . freedom from the obstruction of the. streets of said city by railroads and adequate services and facilities for the transportation of passengers, freight and property in..said city.”

Nothing contained in this section directs or implies that the ■city funds áre to be used to acquire additional lands for the benefit of the railroad companies. It appears to be the intent of this section that the commission shall be vested .with a power in respect to compelling railroad companies to improve then-terminals similar to that vested in the State Public Service Commissions, and, in addition, that the commission shall have power over the city streets and city-owned property, to compel the city to make such changes and alterations therein as may be necessary to permit the enlargement and improvement of the railroad terminals and at the same time relieve the streets of railway tracks and structures as far as possible in the interest of the city and its inhabitants.

After the commissioners have prepared a tentative plan for the proposed improvement of any railway terminal and have held the hearing required, after notice to all interested, section 3 of the act requires the commissioners then to make a report in writing, “wherein they shall state the plan adopted by them; the location of the railroad passenger and freight stations (which shall be located at or near their present location), yards and appurtenances and facilities to be used in connection therewith, and of the public and railroad approaches thereto, and of the streets, squares and public places contiguous or adjacent to said’stations, yards, facilities or approaches to be used for said stations, yards and therewith connected facilities by the respective railroad corporations whose railroads enter or operate within the city of Buffalo; the change in the location or grades of the streets, alleys or lands owned by said city, and the change in the grades of existing structures carrying streets over or under railroads, which may be necessary in the judgment of said commissioners to secure to the public freedom from the obstructions of the streets of said city by railroads and adequate services for the • transportation of passengers, freight and property in the use of the railroad tracks, switches, terminal stations or facilities.”

The plan for the improvement having thus been definitely determined,, the commissioners are then required by section 4 to make and serve an order directing such improvements and changes to be made within the time specified in the order, and the section then proceeds as follows: “and such railroad or other transportation corporation and the city of'Buffalo are hereby required and directed to make the improvements or changes required of them, or any of them, by such order of the commission served upon them as herein provided.”

Section 5 provides that the commissioners are authorized on behalf .of the city to contract with any railroad company for the purpose of carrying out the provisions of the act and to agree upon the change of location or grade of streets, and for the exchange or sale of lands owned by the city “ at a price therefor to he determined cos hereinafter provided.” This price, as appears from subsequent sections, is to be the fair market value of the lands owned by the city, to be determined by three commissioners appointed by the Supreme Court as in condemnation proceedings.

Thus far nothing appears in the act by which any city money is to be used to purchase property for the use of the railroad companies. We now come to section 6, which is claimed to authorize such use of city money. We quote this section in full: “ The commissioners may agree with any railroad or other transportation corporation interested, and any of them, what portion of the work necessary to be done shall be done by any such company interested, and what portion of the work shall be done by the city, and what portion of the cost of the proposed improvement shall be paid by each. The cost of any structure and the maintenance thereof built upon the lands to be used by any railroad company in the erection and maintenance of its railroad passenger or freight stations, yard or approach, shall be at the sole expense of said railroad company interested.”

The first sentence of this section is copied almost verbatim from section 9 of the Grade Crossing Act for the city of Buffalo (Laws of 1888, chap. 345), as amended by chapter 358 of the Laws of 1911, as are many other sections of the present act. Standing by itself, it might be interpreted as authorizing an agreement between the commissioners and a railroad company by which the city should pay a portion of the cost of the lands to be acquired and used for railroad purposes, the title to which is to vest in the railroad company; but, construed with the previous sections, we think it was not intended to authorize such use of city money. It certainly does not require the commissioners to enter into an agreement of that character, and in view of the constitutional prohibition, .an agreement of that character, we may assume, could not be lawfully made, and if made, could not be lawfully carried out. It is urged that the last sentence of this section, which provides expressly that the cost, of any structure to be built upon the railroad lands shall be at the sole expense of the railroad company interested, indicates an intention to permit the cost of the lands upon which these structures are to be erected to be paid in part by the city. If, in the construction of this section we were not to resort to the provisions of the prior sections, the suggestion as to the last sentence of the section would have much force in determining the meaning of the section as a whole, hut we are satisfied that it was not the intention of the Legislature by this, section to authorize the payment of city moneys for the purchase of land, or to pay any part of the purchase price of land- to be acquired and used exclusively for railroad right of way and yards, stations and structures, the title to 'which lands was to be vested in the railroad company. The purchase of lands for a railroad right of way, freight house, station, yard or other terminal.facilities to be owned by the railroad company would not, we think, be a city purpose, or a purpose for which city funds derived from taxation could lawfully be used.

If section 6 is capable of two interpretations, one of which renders it valid and constitutional, and the other void, that interpretation should be adopted which renders it valid.

By section 1 the commission is given power to require the railroads to make changes in their existing terminals, and the city, changes in the-streets, and by-section 4, after the proposed changes have been .definitely determined upon, they are to order the railroads and the city to make the improvements or changes required of them; that is to say, the railroads to. make the changes to or for the benefit of its property, and the city, the street alterations. As some of the work will consist of eliminating grade crossings or work in streets where the railroad tracks are or will be located, it is evident that there will be work to the expense of which the city and the railroads may properly contribute in some just proportion and to which section 6 may properly apply, entirely disconnected with the purchase Of additional lands for the exclusive use of the railroads.

Nor is there anything in section I which requires or permits payment of city money for the purchase of lands for the railroads. That section provides for condemnation proceedings in the Supreme Court for two purposes: First. To acquire from private owners any lands necessary for the changing of the grade of any street, closing or alteration of a street,' widening of a street, or the opening of a new street, and to ascertain the damages of any owners of property injured thereby. And, second, to ascertain and determine the fair market value of any lands owned by the city to be exchanged or sold by it. And on the coming in of the report of the commissioners appointed in such condemnation proceedings, the court is directed to order the award “to be paid by the railroad or other transportation corporation, and the city, in such proportion as shall have been fixed by the commission, or by the agreement provided for in section six.” This section further provides that upon the payment being made “ the fee of the lands sought to be taken shall vest in the city, and all claims for damages to the property injured shall be extinguished.”

It is clear that this section has no reference to lands to be acquired for railroad stations or railroad property, or for the private use of railroads, except in the case of lands already owned by the city which are to be exchanged or sold, and as to such lands, if they are exchanged with or sold to a railroad company, it is to be at their fair market value to be paid to the city by the railroad company.

Section 8 provides that: “ In case the commissioners and any company shall not agree upon the apportionment of the work or the cost of the proposed improvement between the city and any of the said companies, the commissioners may apply to the Supreme Court at a Special Term thereof for the appointment of three commissioners to make such apportionment. ”

And these commissioners are required to make their report in writing “designating what portion of the work necessary to be done shall be done by the railroad company or companies, whose tracks render the work necessary, who shall not have agreed with the commission as to the division of the work or the cost thereof, and what portion shall be done by the city, and the proportion of the cost of the proposed improvement to be paid by each. ”

This section, we think, has no reference to the expense of acquiring lands by the railroad companies which are to be their exclusive property for their stations, terminals, rights of way or yards.

By section 9 the commissioners are authorized and empowered “to acquire any lands in the city of Buffalo, to close or alter any street, alley or public place, to change in or remove from any such street, alley or public place any gas or water pipes, sewers, conduits or other objects, or change1 the grade of any street which they shall decide shall be necessary for the purpose of carrying out the plans and contracts hereby authorized, and the proceedings provided for in section seven of this act shall be applicable for the purpose of acquiring title to any lands necessary to be taken.” That is to say, they may acquire these lands by condemnation proceedings. They can acquire only such lands as are necessary for the purpose of carrying out the plans and contracts authorized by the act. This, we think, limits the power of the commissioners to lands needed for street purposes, for the alteration of streets, or'for easements necessarily connected with the elevation or depression of streets or- railroads at the crossings, or to carry existing rail • roads over or under street crossings. It does not empower the commissioners to condemn lands of a private owner for the benefit of any railroad company to become part of its railroad. That power the railroad companies already have under the Railroad Law, and there is no occasion, if indeed there is any power, to confer such authority upon the commissiouers.

Section 10 is as follows: " Any lands so taken or any part thereof, or interest or easement therein, shall be uséd by any railroad, terminal, bridge or other transportation corporation under the provisions of a plan adopted by said commission as provided herein for any of the structures directed to be erected by the commissioners appointed by this act. The commissioners shall notify such-company to pay the city the amount fixed by order of the court confirming the report of the commissioners to' ascertain the amount of compensation to be paid therefor and the costs and expenses of the proceedings to take the same, and thereupon such company shall pay the same to the city treasurer. Upon such payment being made the fee of the land taken, or the interest or easement to be acquired therein, shall vest in such company.”

This section is" almost a literal copy of section 13 of the Grade Crossing Act, as amended by chapter 358 of the Laws of 1911. In attempting to copy this section the word “ If,” being the first word in the section in the Grade Crossing Act, appears to have been unintentionally omitted, for it certainly could not have been the intention to require the railroad compames absolutely to use all the lands which the city may acquire, including the land which it must acquire for street purposes. No doubt the intention of the section is as if it had read as in the section of the Grade Crossing Act: “If any lands so taken * * * shall be used by any railroad * * * corporation,” etc.

The question is: Does this section contemplate or authorize the commissioners to proceed by condemnation to acquire for the railroad companies lands on which to erect new terminals, stations, or new or additional right of way or freight yards, or other lands to be owned in* fee by the railroad companies ? As the section was copied from a section of the Grade Crossing Act, we may look to that act to see what meaning the words had as there used. That act dealt with grade crossings, and under it a large number of railroad grade crossings in the city of Buffalo have been eliminated and viaducts constructed, carrying streets over railroads, and bridges carrying railroads over streets, and it is evident that the section in the Grade Crossing Act which provides for the railroad companies paying the awards for lands upon which are erected “ any of the structures directed to be erected by the commissioners appointed by this act,” the title to which shall thereupon vest in the company, has reference to such bridges and viaducts and not to railroad stations, freight houses or similar structures which may be provided for by the terminal commission, for no such structures were to be provided for by the grade crossing commission.

In this connection it is important to note that by chapter 358 of the Laws of 1911, an act passed at the same session as the Terminal Commission Act now under consideration, section 2 of the Grade Crossing Act was amended so as to exclude from the jurisdiction of the grade crossing commissioners certain territory in the city of Buffalo which is said to include all the territory on which are located the terminals of the various railroads in that city. Hence, the matter of dealing with grade crossings, elevation and depression of streets and railroads within this excepted territory seems to be now wholly in the hands of the terminal commission and removed from the jurisdiction of the grade crossing commission, and it was, perhaps, in view of this that section 13 and some other sections of the Grade Crossing’ Act have been copied into this Terminal Commission Act, so as to continue in the terminal commission in their territory a power and jurisdiction similar to that which the grade crossing commissioners had exercised. There may be, therefore, lands acquired by the terminal commission at or near street crossings, upon which will be erected structures in the form of bridges or viaducts, for which the plan adopted by the commissioners may require the railroad companies to take title to the lands and reimburse the city for the expense’ of acquiring them, as has been done heretofore under the Grade Crossing Act. If section 10 of the Terminal Commission Act was intended. to provide for cases of that kind, it does not contemplate the contribution of city moneys contrary to the constitutional provision here in question.

We need not at this time consider whether if section 10, in connection with section 9, was intended to authorize the commissioners to acquire by condemnation lands for stations, yards and rights of way for the railroad companies, the Legislature could lawfully confer such power upon the commission. We think such was not the purpose and intent of these sections, and that the act as a whole contemplates that the railroad companies themselves' will by purchase or condemnation under the Railroad Law acquire such additional lands as it is necessary they should own.

No other section of this act deals with the question of the manner in which lands to be owned by the railroad companies are to be acquired or paid for. We conclude, therefore, that the act does not offend against section 10 of article 8 of the State Constitution.

The plaintiff and the defendant the city of Buffalo contend that the commissioners named in the act and the commission are an illegally and unlawfully constituted body, and that their official acts are illegal, null and void, because of section 2 of article 10 of the State Constitution, as follows: “All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this Constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct.” •

The commissioners are officers whose offices have been created by law since the adoption of the Constitution in 1894. They may, therefore, be elected by the people, or appointed, as the Legislature may direct. We think it was competent for the Legislature to itself make the appointment in the act creating the commission, and it was so held as to the act creating the rapid transit commissioners of the city of New York in Sun Publishing Assn. v. Mayor (8 App. Div. 230; affd., 152 N. Y. 257).

It is also contended that the act is unconstitutional in that, being a private or local act, it authorizes the laying out, opening, altering and discontinuance of streets in the city of Buffalo, contrary to section 18 of article 3 of the Constitution, which provides: “The Legislature shall not pass a private or local bill in any of the following cases: * * * Laying out, opening, altering, working or discontinuing roads', highways or alleys, or for draining swamps or other low lands.” The Court of Appeals has held that this section of the Constitutión is not applicable to city streets. (Matter of Lexington Ave., 29 Hun, 303; affd., 92 N. Y. 629; People ex rel. Commissioners v. Banks, 67 id. 574; Matter of Woolsey, 95 id. 135.)

We have examined the other grounds of objection to this act based upon other provisions of the State Constitution, and we think that none of them are well taken or can be sustained or that they are so serious as to require discussion.

In view of the construction which we have placed upon this statute, we think there is nothing in the brief submitted by the intervening taxpayer for which we need to prolong this opinion. We think the questions considered are properly before, this court in the agreed case, and that judgment may be pronounced as to the constitutionality of the act, which is the only question before the court.

Since this case was submitted our attention has been called to the opinions of the Court of Appeals in the case of Admiral Realty Co. v. City of New York et al. (206 N. Y. 110), being taxpayers’ actions brought to restrain the-proposed contracts for the new subways in the city of Yew York. So far as the prevailing opinion in those cases touches the question's involved here, we think the views herein expressed are in harmony therewith.

We conclude that judgment should be rendered in favor of the defendant, the terminal station commission of the city of Buffalo and. against plaintiff and the defendant the city of Buffalo, adjudging: First. That the commissioners named in said act and commission are a legally and lawfully constituted body. Second. That the expenses incurred by said commissioners amounting to $5,000 are a proper and legal charge against the city of Buffalo, and that said city is liable therefor. Third. That the city of Buffalo can legally issue, and it can be compelled to issue, its bonds for the purpose of paying the aforesaid $5,000, the expenses of said commission. Fourth, That plaintiff is not entitled to an injunction preventing the issuing of said bonds or the payment of said expenses, of said commissioners, or to any other equitable or injunctive relief.

All concurred.

Judgment directed upon the submission in favor of the defendant Terminal Station Commission, without costs.