West Side Electric Co. v. Consolidated Telegraph & Electrical Subway Co.

The matter in contest between the parties to this record is brought before the court by two appeals—one from a judgment in an action in which the relief was sought of a perpetual injunction against the defendant to restrain it from interfering with or obstructing the plaintiff in the maintenance of certain cables and electrical conductors, located in subways or ducts in the city of New York, and the other from a final order dismissing and quashing an alternative writ of mandamus, which had been directed to the defendant, to enforce a right claimed by the appellant to lay. or place other cables for electric lighting purposes in subways in the city of New York.

The single question involved in both the action and the special proceeding" relates to the existence of a right on the part of the appellant to use the subways, as claimed by it. It is conceded that it has what may be called an apparent authority to use those subways; that is to say, it has received the consent and authority of the board of electrical

“To carry on the business of lighting by electricity or using it for heat or power in cities, towns and villages within this state, and in the streets, avenues, public parks and places thereof, and public and private buildings therein ; and for the purposes of such business to generate and supply electricity; and to make, sell or lease all machines, instruments, apparatus and other equipments therefor, and to lay, erect and construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures in, on, over or under the streets, avenues, public parks and places of such cities, towns or villages, for conducting and distributing electricity, with the consent of the municipal authorities thereof, and in such manner and under such reasonable regulations, as they may prescribe.”

The appellant, on October 30,1896, procured from the board of electrical control of the city of New York, an authority, permit, or certificate, which recited 'that the appellant had petitioned the board of electrical control for a franchise to do business in the city of New York, and had filed a certificate of its incorporation with that board and it was therefore resolved—

“That the West Side Electrical Company having filed the necessary certificate with the secretary of the state of New York and the clerk of the city and county of New York permitting it to do business, be, and it hereby is, authorized and empowered to lay and construct suitable, wires or other conductors in subways under streets, avenues, public parks, and places in the city of New York for conducting and distributing electricity under the direction of the board of electrical control, subject to all existing rules applicable thereto, and to all regulations which the board may hereafter impose by resolution or otherwise, provided always, and this consent is given on that express condition,. and not otherwise, that until the further order and resolution of this board, the electrical conductors of said company shall be laid or constructed by the Consolidated Telegraph & Electrical Subway Company, under and in pursuance of the statutes of the city of New York, and under the ordinance of this board.”

Acting under the authority thus conferred, or sought to be conferred, the appellant procured permits to open the streets and to introduce its wires or cables in subway ducts-.

“The general nature of the obligation of the subway company under said contracts and statute, is to supply ducts to all corporations duly authorized to install and operate electrical conductors in the streets of the city, giving equal facilities to all, and receiving equal rentals from all.”

After the appellant received the permit or certificate from the board of electrical control, the respondent permitted it to open the streets and lay cables in the ducts, and for some time the appellant used those cables and ducts and paid rent therefor, and the right of the appellant seems to have passed without challenge until June 15, 1903, when it was notified by the respondent, through its secretary, and general superintendent, that it had been advised that the appellant was a company not having lawful power to operate electrical conductors in any street of the city of New York, and that the respondent was not therefore authorized to lease its subways and ducts to or permit the use by the appellant. Reasons in the nature of excuses for the respondent delaying action in the premises are then set forth in the notice (which reasons it is not now necessary to consider); but the distinct requirement was made that the appellant forthwith remove and withdraw all its cables from the subways and ducts of the company “on the ground that you are not a company having lawful power to operate electrical conductors in the city of New York, or any part thereof.” Counsel for the appellant calls attention to the history of the legislation respecting electric lighting-in the state of New York, and points out that the first statute concerning that subject was chapter 512, p. 562, of the Laws of 1879, subsequently amended by chapter 73, p. 70, of the Laws of 1882, whereby the formation of corporations was authorized to carry on the business of lighting by electricity; and section 2 of the act provided that such a corporation shall have power to lay, erect, and construct suitable wires in cities, towns or villages—

“With ‘the consent of the municipal authorities thereof, under such reasonable regulations as they may prescribe.”

It is conceded that at the time of the passage of the act of 1879, the common council of the city of New York was the municipal authority vested with the powder to grant consents on behalf of the city, and it is also admitted that that power remained in the common council until the year 1887. In 1884 and 1885, a new body to be known as the board of commissioners of electrical subways in the city of New York, was created by the Legislature, and to that new board was confided the duty of regulating and controlling the use of the streets of the city of New York for electrical wires or conductors. In 1887, the Legislature passed an act (chapter 716, p. 928) relating to electrical conductors in the city of New York, and by that act was constituted the board of electrical control in and for the city of New York. By section 1 of that act, it is provided that:

“All the powers and duties conferred or imposed by the said act (chapter 499 of the Laws of 1885) upon the commissioners appointed thereunder in and for the city of New York, and all the powers and duties heretofore by any law conferred or imposed upon the local authorities of said city, or any of them, in respect to or affecting the placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits or subways for electrical conductors in said city are hereby transferred to and conferred and imposed upon, and shall hereafter be exclusively exercised and performed by the said board of electrical control, constituted as provided in this act, and its successors as hereinafter provided.”

That is the board from which the appellant received the consent upon which it relies.

What has been heretofore stated is sufficient to indicate the general aspect in which the controversy now comes before us, and it will be seen that the real issue is whether the appellant acquired a franchise to do business in the city of New York under the provisions of the transportation corporations law. The court below determined that it had not, and we are compelled by authority to acquiesce in that determination. It is evident that the appellant and the respondent and the board of eletrical control were all of opinion that the municipal 'authority referred to in subdivision 2 of section 61 of the transportation corporations law was the last-mentioned board—a view which would be now adopted by us were it not for a contrary expression of opinion by the Court of Appeals, which -we deem to be controlling. Subdivision 1 of section 61 of the transportation corporations law relates to gas companies. Among the powers conferred are:

“To furnish such quantities of gas as may be required in the city, town or village where the same shall be located, or said two or more villages or towns, not over five miles distant from each other * * * and to lay conductors for conducting gas through the streets, lanes, alleys, squares and highways, in such city, villages or town.s, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe,” etc.

In Ghee v. Northern Union Gas Co., 34 App. Div. 551 , 56 N. Y. Supp. 450 , a taxpayer brought an action under the Laws of 1881, to restrain the laying of gas mains in certain streets of the city of New York, upon the ground that that company had no" franchise or right to do so, and that certain officials of the city, the commissioner of highways and the deputy commissioner of highways of the borough of the. Bronx had illegally granted a permit for the laying of such mains. The Northern Union Gas Company was organized in 1897, under the transportation corporations act for the purpose of manufacturing and supplying gas and electricity to public and private buildings in the city of New York. The question arose in the case as to the power of the commissioners to issue the permit or grant the authority which was given to the gas company. Upon a consideration of the whole subject, it was determined by this court that the proper municipal authority under the provisions of the Greater New York Charter of 1897, to grant the consent was in the commissioner of highways and not the common council of the city of New York, and we remarked in that case that:

“It is difficult to avoid the conclusion that the municipal authorities whose consent is necessary for the laying of gas mains in the streets are the department of public buildings, lighting and supplies, and the department of highways. This is an undoubted departure from the plan or scheme under which.

the old government of the city was conducted, for therein the local "authorities to which reference is made in nearly all prior legislative acts were the municipal council or board of aldermen.”

On appeal to the Court of Appeals our decision was reversed ( 158 N. Y. 511 , 53 N. E. 692 ), and it was held that in the city of New York the municipal authority,” within the meaning of that term as used in section 61 of the transportation corporations law, whose consent is required to lay conductors for conducting gas through the streets of the city, is the municipal assembly. That determination of the Court of Appeals is announced as a general proposition, not confined to a case arising under the provisions of the Greater New York Charter, and the reasoning of the opinion is, in our judgment, decisive of the present case. Were it not for that, it might well be claimed that a franchise to carry on the business of generating and supplying electricity, or of making, selling) or leasing apparatus or other equipment, is granted directly from the state without any consent of the municipal authorities required by the statute, and that such consent, if so required, relates to the exercise administratively of a granted franchise to lay, erect, and construct suitable wires or other conductors in, over, or under the avenues, streets, public parks, and places of said cities; or, in other words, that the authority was only that of an administrative authority as to the methods and manner in which particular things pertaining to the exercise of the franchise' once granted, should be done. But in the Ghee Case, the Court of Appeals has gone much farther, and has declared that a part of the franchise is the distinct specific right which the appellant claims as against the respondent and that that right was not complete, and a franchise was not duly conferred, until the municipality gave a supplementary consent to the general power which the appellant sought to acquire under its' certificate of incorporation. If it be true that the right to the use of the streets is a part of the franchise of the appellant, then it results from the Ghee Case that the board of aider-men was the legislative body, having the power to grant a franchise to use the streets. In the case cited, it was held in effect, that previous to 1897, the board of aldermen of the city of New. York, the legislative branch of the city government, was the body which had the power to confer franchises to use the streets. Therein it is said that:

“The accumulation under ground, during the past few years of sewers, electrical subways, cable and electrical railway conduits, pneumatic tubes, steam-heating, water and gas pipes, seems to.indicate that the day may come when there wijl be no more unoccupied space beneath the surface of the streets, and of this situation the Legislature and the learned commissioners who drafted the charter undoubtedly had full knowledge. It is difficult to believe that, with such knowledge, they would attempt to take away from general and responsible representatives of the people, the power to grant such, important and valuable rights and vest them in subordinate administrative officers,” etc.

Those words are significant with respect to the intent of the Legislature in passing the act of 1887, conferring powers on the board of electrical control, and although nothing is definitely decided on that subject, the question is left fairly open for consideration when it is presented in a proper case.

We are unable to see that the language of the act of 1887, confers

: “Any company subject to this act may lay its mains or pipes, and supply its gas through the same, without any further proceedings, conditions, or authority, than those herein contained, save the consent thereto of the mayor, comptroller and president of the department of taxes and assessments of the city of New York.”

. The reference to this subject made in the opinion of the Court of Appeals proceeds upon a concession which was seemingly made by all the. parties to that case. The inaccuracy is not material, if we correctly apprehend the full force and effect of the opinion. In the light of that decision, the provisions of the act of 1887, relating to the board of electrical control, and the powers and duties conferred upon local authorities in respect to or affecting the “placing, erecting, construction, suspension, maintenance, use, regulation or control of ‘electrical conductors in said city are hereby transferred' to and conferred and imposed upon, and shall hereafter be exclusively exercised and performed by the "board of electrical control,” do not relate to granting a consent which in and of itself would' operate as a completion of a franchise.

Notwithstanding the very elaborate and learned argument of the counsel for the appellant, we feel constrained by the authority of the Ghee Case to affirm the judgment and order appealed from.

The judgment and order should be affirmed, with costs.

O’BRIEN, P. J., and McLAUGHLIN, J., concur. LAUGHLIN, J., concurs in result:

The relator was denied its right to use ducts in the subway in the streets of the city of New York for its wires to furnish electricity for light to its customers, upon the sole ground that it had not lawful power to operate electrical conductors in any street, avenue, or highway in the city of New York; and the only question presented upon this appeal is whether the relator is so authorized." The relator was duly organized on October 21, 1896,

“If incorporated for the purpose of using electricity for light, heat or power, to carry on the business of lighting by electricity or using it for heat or power in cities, towns and villages within this state, and the streets, avenues, public parks and places thereof, and public and private buildings therein; and for the purposes of such business to generate and supply electricity; * * * and to lay, erect and construct suitable wires or other conductors, with the necessary piles, pipes or other fixtures in, on, over and under the streets, avenues, public parks and places of such cities, towns or villages, for conducting and distributing electricity, with the consent of the municipal authorities thereof, and in such manner and under such reasonable regulations, as they may prescribe.”

The provisions of this section were taken from chapter 512, p. 562 of the Laws of 1879, section 2 of that act giving to any gaslight company organized under chapter 37, p. 48 of the Laws of 1848 the authority to manufacture and supply electricity, with the power to lay, erect, and construct suitable wires or other conductors, with the necessary poles, pipes, or other fixtures, in, on, over, and under the streets, avenues, parkways and places of such cites, towns or villages, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe. The 1st section of this latter act was amended by chapter 73, p. 70, of the Laws of 1882.

Upon the incorporation of the relator it thus became vested with a franchise to lay, erect, or construct suitable wires, or other conductors with the necessary poles, pipes, or other fixtures in, on, over, and under the streets, avenues, public parks, and places of the city of New York when the consent of the municipal authorities of that city was obtained. I think it must be conceded that the Legislature, having power to grant this franchise absolutely, without the consent of the municipal authorities, had power to impose a condition requiring the consent of the municipal authorities of the city of New York before the franchise should be exercised; and having power to thus impose a condition, it could designate the officers who should give that consent. Whether we call this conferring a franchise, or a condition required by the sovereign power before the franchise should be used, it was for the Legislature to say what officer or board of the municipality should be required to give his or its consent before the grant of the franchise became operative. The statute requires the consent of the municipal authorities, and this, without other legislátion would undoubtedly require the municipality to act through its legislative body by a resolution of the board of aldermen; but the Legislature had also the power at any time to modify this provision, and grant the franchise without condition, or to designate some other! officer or board as the authority upon whose consent this franchise or right to use the streets of the city would become operative.

The claim of the relator is that section 1, chapter 716, p. 928, of the Laws of 1887 vested the power to give the consent required by chap

The first section of that act provides that:

“From and after the passage of this act and until the first, day of November, eighteen hundred and ninety, the board of commissioners of electrical subways in and for the city and county of New York, heretofore appointed under authority of the act, chapter four hundred and ninety-nine of the laws' of eighteen hundred and eighty-five, together with the mayor of said city for the time being, are hereby constituted the board of electrical control in and for the city of New York. * * * AH the powers and duties conferred or imposed by the said act, chapter four hundred and ninety-nine of the laws of eighteen hundred and eighty-five, upon the commissioners appointed thereunder in and for the city of New York, and all the powers and duties heretofore by any law conferred or imposed upon the local authorities of said city, or any of them, in respect to or affecting the placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors in

said city, are hereby transferred to and conferred and imposed upon, and shall hereafter be exclusively exercised and performed by the said hoard of electrical control, constituted as provided in this act, and its successors as hereinafter provided.”

Section 3 (page 929) of the act provided that whenever, in the opinion of the board, in any street or locality of the city a sufficient construction of conduits or subways underground shall be made ready under the provisions of the act, the said board shall notify the owners or operators of the electrical conductors above ground in such street or locality to make such electrical connections in said street, or through other streets, localities or parts of the city with such underground conduits or subways, and to remove the poles, wires or other electrical conductors above ground; and that the commissioner of public works shall cause the same to be removed in case the owners or operators of such wires, piles, fixtures, or devices shall not cause them to be removed from the streets. Section 4 provides that it shall be unlawful after the passage of the act for any corporation or individual to take up a pavement of the streets of the city of New York, or to excavate in any of said streets for the purpose of laying underground any electrical conductors unless a permit in writing therefor shall have been first obtained from the said board, or its predecessor; and 'further provides :

“The said board of electrical control may establish, and from time to time may alter, add to or amend, all proper and necessary rules, regulations and provisions for the manner of use and management of the electrical conductors, and of the conduits and subways therefor constructed or contemplated under the provisions of this act, or any act herein mentioned.”

Section 5 provides that:

“From and after the first day of November, eighteen hundred and ninety, all rights, powers and duties vested or existing in the said hoard of electrical control by this act created, or in the board of commissioners of electrical subways, heretofore existing in said city, shall vest in and shall thereafter be held and exercised by the commissioners of the sinking fund in the city of New York.”

And section 9 (page 931) provides that:

“All acts and parts of acts inconsistent with this act are hereby repealed.”

It must be plain from a study of this act, that it was the board of electrical control that was to have the absolute control over all electrical conductors, either under or above the streets in the city of New York. Under the provisions of section 3, no corporation after the passage of the act could excavate in the streets of the city of New York for the purpose of laying underground an electrical conductor, or construct, erect, or maintain any electrical conduits above the ground, unless a permit in writing therefor was first obtained from the board. _The consent of the board was necessary before any corporation could use a franchise conferred under chapter 532, p. 562, of the Laws of 1879, as amended by chapter 73, p. 70, of the Laws of 1882, or the transportation corporations law; and this board was further authorized, by section 4 of the act under consideration, from time to time to make, alter, add to, or amend, all proper and necessary rules, regulations, and provisions for the man-

Consider the authority conferred upon the board of section 1 of the act. All the powers and duties conferred are imposed upon the commissioners appointed under the act of 1885, and—

“All the powers' and duties heretofore by any law conferred or imposed upon the local authorities of said city, or any of them, in respect to or affecting the placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits or subways for electrical conductors in said city are hereby transferred to and conferred and imposed upon, and shall hereafter be exclusively exercised and performed by the said board of electrical control, constituted as provided hy this act, and its successors as hereinafter provided.”

Undoubtedly the board of aldermen, who prior to that time had the power to consent to the use of the- streets by a corporation organized to furnish electricity in this city, were local authorities .of the city, and under section 512, p. 562, of the Laws of 1879, had power to give the consent of the municipal authorities to a corporation organized - under the act to lay, erect, and construct suitable wires or other conductors in, on, over, and under the streets, avenues, parks, and .places of such city.. By the express terms of the act of 1887, there was conferred and imposed upon the board of electrical control, to be thereafter, exclusively exercised and performed by that board, all power, and duties theretofore by any law conferred or imposed upon the local authorities.' If the board of aldermen at the time of the passage of this act wa's a local authority of the city of New York, and if the power conferred upon it to consent to the use by a corporation organized-under chapter 512, p. 562, of the Laws of 1879, of the streets of New, York, was in respect to the placing, erecting, construction, suspension, maintenance, use, regulation, or control of electrical conductors or conduits or subways for electrical conductors in said city, then that power was transferred, conferred, and imposed upon the board "of electrical control, and thereafter was to be exclusively 1 exercised and performed by it. It seems -to me that the power to 'consent tó a corporation using the streets for that purpose was conferred upon the board of electrical control. This board of electrical control was continued in existence by various acts of the Legislature up to' and beyond the year 1896, and during that year continued " to exercise all powers and authority conferred upon it by the act of 1887. In the year 1890 the transportation corporations law was passed, and there, was incorporated in section 60 of that act substantially the same, provisions that were contained in chapter 512, p. 562’, of.the Laws of 1879. The relator having been incorporated under the transportation corporations law, it was required to obtain the

It is said, however, that the decision of the Court of Appeals in Ghee v. Northern Union Gas Co., 158 N. Y. 510 , 53 N. E. 692 , is a controlling authority under this question, and that under it we are bound to hold that "the municipal authorities whose consent was required under the transportation corporations law were the board ,of aldermen; but it seems to me that in that case an entirely different question was presented, which had no relation to the act of 1887 or the authority conferred thereby upon the board of electrical control. The question in that case arose under the charter of 1897 (chapter 378, p. 1, Laws 1897), and the question certified to the Court of Appeals was:

“Are the municipal authorities of the city of New York, whose consent is required to lay conductors for conducting gas through the streets of such city, under the transportation corporations law, the head of the department of public buildings, lighting and supplies, and the head of the department of highways, under the powers conferred by the charter of the city of New York, or are the ‘municipal authorities’ referred to in the said transportation corporations law the municipal assembly, or any other officer or body in the city of New York?”

The charter of 1897 united under one municipal government the cities of New York and Brooklyn, and other territory, creating a new city of New York. It provided for a municipal assembly, giving to it broad legislative powers, created heads of the departments upon whom was imposed administrative duties, and the question there was whether, under that charter, the power to consent was vested in the legislative body or in one of the administrative departments of the city of New York. One of the sections of the. charter gave to the commissioners of the department of public buildings lighting and supplies cognizance and control of the making and performance of contracts in the matter of furnishing the city, or any part thereof, with gas, electricity, or any other illuminant, and of the use and transmission of gas, electricity, pneumatic power, and steam for all purposes in, upon, across, over, and under all streets, avenues, etc., and of the construction of electric mains, conduits, conductors, and subways in any such streets, and the granting of the permission to open streets, when approved by the department of highways.; and another section of the charter provided that the commissioner of highways should have cognizance and control of regulating, grading, curbing¡ flagging, and guttering of streets and laying of crosswalks; and that no removal of the pavement or disturbance of the surface of any street for the purpose of constructing vaults or lateral ways, digging cellars, laying foundations of buildings' or other structures making sewer connections, or repairing sewers or pipes, of laying down gas and water pipes, steam pipes, and electric wires, or introducing, the same into buildings, or for any purpose whatever, shall be made until a permit is first had from the department of highways. The con

“To describe a power strictly limited to the regulation of existing rights, and they cannot now be given an entirely different meaning from that in which they were used in the previous statutes referred to and relied upon, to some considerable extent, by the draftsmen of the present charter, in order to imply a power in these administrative officers, which otherwise, as we have seen, was properly vested in the municipal assembly. Examining the provisions of this charter bearing upon this subject, as we have seen, in the light of previous legislation, to which reference has been made, we have had no .difficulty in reaching the conclusion that the consent that is necesary to confer a franchise upon a gas lighting corporation, can be given only by the municipal assembly through appropriate ordinances, but that when the consent has been granted to a corporation duly created, by which a corporate franchise, which is property, has been acquired, the administrative officers must be applied to for a permit that will allow the corporation to exercise such rights in order that the public convenience may be subserved.”

It seems to me that a determination of a question a.s between the municipal assembly, and a strictly administrative officer, in considering the construction to be given to the provisions of the charter, had no bearing upon the power given to the board of electrical control, upon whom much broader power was conferred by the act of 1897, and which, as I view it, clearly includes within the powers to be exclusively exercised by the board the power to consent to the use of the streets of New York by a corporation organized to furnish electricity for lighting purposes.

My conclusion is that the relator was entitled to the mandamus asked for, and that the order appealed from should be reversed, with' $50 costs and disbursements, and ,the mandamus granted, with costs.