Matter of the Thirty-fourth Street Railroad Company. is one of the acts which has been passed by the legislature to provide for the construction and operation of railroads. Neither this portion of the constitution, nor any other, has further abridged the power of the legislature than to declare that "no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value (of) the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the general term of the supreme court in the district in which it is proposed to be constructed may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination. confirmed by the court may be taken in lieu of the consent of the property owners." With these specified restrictions. as to the laws which should be passed the constitution has not undertaken to declare or define what the act may contain or be included in it. It cannot permit a street railroad to be constructed or operated except upon a compliance with these requirements. So far a disability has been imposed upon the legislature and its legislative authority has been limited, but beyond that no restriction over this subject has been placed upon its legislative power. How the end intended to be accomplished should be secured after the observance of these restraints, was necessarily left to the judgment and discretion of the legislature. For so far as the act may be made to include subjects not within these specified restraints, it would clearly be within the broad grant of legislative authority made by the constitution to the legislature. And that includes all legislative authority of every description not restricted or abridged by some express or implied prohibition of the constitution. This subject was considered in People agt. Flagg (46 N. Y., 401), where it was said, in the opinion of the chief judge, with Matter of the Thirty-fourth Street Railroad Company. the concurrence of all his associates, that "all legislative power is conferred upon the senate and assembly; and if an act is within the legitimate exercise of that power, it is valid, unless some restriction or limitation can be found in the constitution itself. The distinction between the United States constitution and our state constitution is that the former confers upon congress certain specified powers only, while the latter confers upon the legislature all legislative powers. In the one case the power specifically granted can only be exercised. In the other all legislative powers not prohibited may be exercised" (Id., 404). And Bank of Chenango agt. Brown (26 N. Y., 467) is to the same effect. So much of the enactment as is contained in section 14 of chapter 252 of the Laws of 1884 is clearly an appropriate exercise of legislative power. It was entirely judicious for the legislature to prohibit the construction of another railroad in the public streets of a city, so far as they might previously have been occupied for that object by other companies acting under the sanction and authority of the law. And no refined or purely artificial distinctions can be permitted to stand in the way of the exercise of this legislative authority. This subject was also considered by the same chief judge in People agt. Comstock (78 N. Y., 356), where it was held that "it must be borne in mind that the senate and assembly possess all legislative power, except when forbidden or restricted by other provisions of the same instrument, and hence it is necessary in order to successfully challenge the constitutionality of an act of the legislature within the purview of legislative power, to find some provision which either restricts or prohibits the power which it has exercised. Every presumption is in favor of its validity" (Id., 361). Between this section and the constitution there is neither a direct or manifest conflict, for it in no manner restricts, limits or enlarges what the constitution in any form has declared shall or shall not be done. There is no provision either in this portion or any other part of the constitution which has Matter of the Thirty-fourth Street Railroad Company. declared expressly, or by implication, that a railroad company shall be entitled to construct and operate its railroad over that portion of a public street in a city which has already been devoted to or appropriated by another railroad. These provisions of the constitution have wholly been directed to other subjects. Their object has been to prevent the construction of railroad tracks under the authority of a special law, and to require it to be done through the instrumentality of a general law. And even when a general law may be enacted, before a railroad can be constructed under its authority, it has been made requisite that the consent of the owners of one-half in value of the property bounded on that portion of the street or highway upon which it is proposed to construct or operate the railroad, as well as the consent of the local authorities having control of that portion of the street, shall be first obtained And if the consent of such owners cannot be obtained, then the general term of the supreme court may appoint three commissioners, whose determination, confirmed by the court, shall stand in the place of the consent of the property owners. So much has been required for the observance of these provisions of the constitution, but no more than that has in any form been declared. And consequently the entire range of legisla tion beyond that was within the authority, judgment and discretion of the legislature itself. And the prohibition which is now under consideration was plainly within that extent of legislative power, for it has not been declared that the legislature could make no further requirements than those declared by these provisions of the constitution. All that has been declared is, that these restraints shall be observed, and beyond them what further may be required for the protection of either public or private interests, has necessarily been confided to the good sense of the legislature. Over these streets it has control, and could determine and declare, as it has by this enactment, what further restraints should be imposed upon a street railroad company before it should have the right or privilege of using the streets for the construction Matter of the Thirty-fourth Street Railroad Company and operation of its railroad tracks. This part of the act, therefore, cannot be disregarded as a violation of any of the provisions or restraints of the constitution, but it should be considered a proper and judicious exercise of legislative power, and as such required to be observed by the court in the disposition of this application. And as it has been made entirely evident from the fact that the consent of these other railroad companies has been withheld from the construction of the applicant's proposed road, that the appointment of the commissioners to hear and determine the parties interested and report whether the railroad ought to be constructed would be entirely futile, the application should not be allowed to prove successful. It has been suggested that the court has no discretion which it is at liberty to exercise upon this subject. For by section 5 of chapter 252 of the Laws of 1884 it has been provided that upon due proof of the service of the notice required to be given, the general term "shall appoint three disinterested persons who shall act as commissioners." But that this was not intended to be mandatory is quite clear from the preceding portions of the act. For if upon mere proof of service of the notice it should become the unqualified duty of the court to appoint the commissioners there could be no useful object whatever in requiring it to be served. It would be no less than absurd to require a notice to be given to the parties opposed to the construction and operation of the railroad, and upon their appearance before the court to deny them the right to object, as that would be denied if the commissioners must be appointed upon mere proof of service of the notice. That could not have been the design of the legislature. But what was intended, as has already been observed, was that the property owners opposing the construction of the railroad should be afforded an opportunity of resisting the application for the appointment of the commissioners, and to extend this opportunity to them this notice was required to be served. The act, therefore, although in form mandatory, is required to be Matter of the Thirty-fourth Street Railroad Company. construed as merely authorizing the court to appoint the commissioners if the exercise of that authority shall appear discreet and just after hearing the parties opposed to the construction of the railroad. And that this was the design of this portion of the law is made further evident from the provisions contained in the constitution itself, for by those provisions it has been declared that the general term "may" upon application appoint the three commissioners. And it is not to be supposed as long as a different construction is well warranted by this portion of the act that the legislature designed to render the duty of the court any more imperative than that had been prescribed by the constitution itself. The rule of construction, on the contrary, would require the act as that may be done, in view of its other provisions, to be harmonized with the constitution, and to leave the power to be exercised by the general term discretionary in its nature. Instances do undoubtedly arise where the word "may," which has been employed as descriptive of the powers of the general term over this subject, has been construed to be mandatory and of the same effect as the word "shall." But that construction has not been given to the word "may" when it has been employed as it is in this part of the constitution of the state. For by no part of that which precedes or follows this delegation of authority has the constitution employed language indicating it to be the duty of the court to appoint the commissioners as a matter of course where the consent of a majority of the property owners cannot be obtained. And it is a remarkable fact that under the constitution, with very slight exceptions this word "may" has only been employed when it was intended that the power to which it referred should be of a discretionary character. Section 8 of article 1 and 7 of article 5 seem to be exceptions to this rule, but in other cases, where the intention has been manifested that the directions of the constitution shall be imperatively carried into effect, the word "shall" has with great uniformity been emploved. More care in this respect VOL. II 48 |