Opinion
February, 1898.
James A. Deering, for plaintiff.
Sheehan Collin, for Union Railway Co., defendant.
John Whalen, Corporation Counsel, for Haffen and city.
It is claimed by the plaintiff that chapter 361 of the Laws of 1863 is unconstitutional, because it embraces more than a single subject. The only portion of this act that relates to a subject not mentioned in its title is section 9, and this section may be declared to be unconstitutional without affecting the legality of the other portions of the act, or the existence of the defendant, the Union Railway Company. Section 9 is entirely independent of the other sections, and provides for an extension of the road, the building of which is authorized by the other sections, and may easily be separated from such sections. Without this section the act is complete in itself and constitutional. 148 N.Y. 540. Moreover, an act which has stood as long as this act has stood should be declared unconstitutional by a trial court only when the question is without doubt. The act of 1892 (chap. 340, Laws of 1892), is not unconstitutional. The amendments provided for in this act were amendments within the reasonable scope of the subject named in the title of the original act. They were fairly and reasonably connected with the subject of the original act, and, therefore, may properly be incorporated in the act and are germane to its title. Wilcox v. Baker, 22 A.D. 299; People ex rel. City of Rochester v. Briggs, 50 N.Y. 553. Nor is it unconstitutional because it creates a railroad by a special instead of a general law. It does not "create" a railroad, it simply authorizes the consolidation of two or more railroads, and such an act has been held to be constitutional. Sandham v. Nye, 9 Misc. 541, and cases there cited. The powers and rights of the roads consolidated are defined by the acts creating them. The fact (if it be the fact) that the said defendant is constructing a railroad which its charter does not authorize it to construct furnishes no reason for declaring the act creating it unconstitutional. Nor does the fact that the act of 1892 dissolved the original company and created a new corporation with a new name, render that act unconstitutional. The very thing was done by the act which was declared constitutional in Sandham v. Nye, supra. It is claimed by the plaintiff that the charter of the original company lapsed because the road was not completed within ten years as required by section 47 of the General Railroad Law. Chap. 140, Laws of 1850. Section 4 of chapter 361 of the Laws of 1863 (the act creating the original company) provides that a certain portion of the railroad shall be completed in six months, and a certain other portion in twelve months from the passage of the act. It also provides that "if the said corporation is delayed in commencing or completing the said railroad by any other cause than its own act, the time during which such delays continue shall not be included in such period." The evidence shows that that portion of the said railroad mentioned in the first eight sections of the act of 1863 was completed within the time mentioned in that act, and, therefore, section 47 of the general act, even if it does apply to that portion of the railroad mentioned in the ninth section of the act of 1863, does not apply to those completed portions of the road. But the legislature by acts passed more than ten years after the passage of the act of 1863, namely, on the 15th day of May, 1873, the 22d day of May, 1874, the 13th day of May, 1875, and the 20th day of April, 1892, recognized the existence of the corporation formed under the act of 1863, and granted to it other and further powers than those given to it by that act; and by an act passed as late as May 9, 1894, approved, ratified and confirmed any and all proceedings taken in substantial compliance with the provisions of chapter 361 of the Laws of 1863, as amended. By these acts, the legislature waived all forfeitures that existed at the time of their passage, if any such there were. The state which imposed the conditions may waive their performance. Matter of N.Y. El. R.R. Co., 70 N.Y. 327. It is also claimed by the plaintiff that the defendant corporation has not a legal existence, because the consent of the local authorities was not obtained, as required by sections 91 and 92 of the Railroad Law (chap. 676, Laws of 1892). This claim cannot be sustained, because the local authority referred to by the plaintiff was not in existence when the acts relating to the corporation were passed, and also because the act of 1892 does not class the person referred to by the plaintiff as a local authority among those whose consent is necessary to the existence of the corporation. The act of 1892 (§ 91) provides in effect that in the city of New York the common council shall be the local authority whose consent must first be obtained, and the evidence in this case shows that such consent has been obtained. There are many other claims made by the plaintiff against the existence of the defendant corporation, but most of them are based upon grounds which I have held to be untenable; the others are not of sufficient importance to merit a discussion. The acts incorporating the defendant railroad have frequently been before the courts of this state and never have been declared unconstitutional, although their constitutionality has been attacked. The complaint is dismissed, with costs. Judgment to be entered on notice.
Complaint dismissed, with costs.