Opinion
July 25, 1913.
William P. Burr [ William J. Clarke and Archibald R. Watson with him on the brief], for the appellant.
Charles L. Woody [ George D. Yeomans with him on the brief], for the respondent.
Relator is a domestic street railroad corporation, and is the successor in interest of the Broadway Railroad Company, a similar corporation. Prior to December 31, 1892, the latter company had constructed its road to points on Atlantic avenue in the then city, now borough, of Brooklyn, substantially coterminous with the southerly portion of Troy avenue, Utica avenue and Ralph avenue, respectively, lying between Atlantic avenue and the boundary line of said city. It seems to be conceded that the original franchise permitted such construction to the points named, or to a short distance southerly therefrom. On December 31, 1892, it caused to be filed and recorded in the appropriate offices a certificate of extension, pursuant to the provisions of the then existing Railroad Law (Laws of 1890, chap. 565, § 90, as amd. by Laws of 1892, chap. 676). The act as amended provided that "A street surface railroad corporation may file in each of the offices in which its certificates of incorporation are filed, a statement of the names and descriptions of the streets, roads and highways in which it is proposed to extend its road. Upon filing such statement such corporation shall, except as otherwise prescribed by law, have the same power and privileges, to extend, construct, operate and maintain its road in such streets, roads and highways as it acquired by its incorporation to construct, operate and maintain its road in the streets, roads and highways named in its certificate of incorporation." In said certificate eight separate and distinct streets were named, neither of which communicated with either of the others. The certificate contained eight paragraphs, in each of which the extension therein described was denominated a "route." The 6th, 7th and 8th paragraphs thereof were as follows:
"6. A route commencing at the end of the track of said Company on Ralph Avenue between Atlantic Avenue and Pacific Street, thence through Ralph Avenue to the City Line.
"7. A route commencing at the end of the track of said Company in Utica Avenue at Atlantic Avenue, thence along Utica Avenue to the City Line.
"8. A route commencing at the track of said Railroad Company at the intersection of Bergen Street and Troy Avenue, thence along Troy Avenue to City Line."
On July 17, 1893, the Broadway Railroad Company obtained from the local authorities of the city of Brooklyn its consent to the construction and operation of the street surface railroad over, among other streets named therein, "Troy avenue, from Fulton street to St. Marks avenue." Over a part of this route, namely, from Fulton street to Atlantic avenue, this road had been already constructed, but by the same consent permission was given to change the motive power "from horse to the overhead electric trolley system of propulsion." On July 24, 1893, a further consent was obtained by said railroad company from the local authorities to the construction and operation, either by horse power or electricity, of a railroad over thirty-four streets named therein, among which were "Ralph avenue, from Pacific street to the city line. Utica avenue, from Atlantic avenue to the city line" and "Troy avenue, from St. Marks avenue to the city line." Within five years thereafter railroads were constructed along the routes designated in the certificate of extension as routes numbered 6 and 7, and referred to in the consent of the local authorities as the Ralph avenue and Utica avenue routes. Up to this time there has been no construction upon any part of the Troy avenue route designated as No. 8 in said certificate.
Relator being now desirous of building a railroad through said avenue, applied to the president of the borough of Brooklyn for the necessary permit to open the street for that purpose. Upon his refusal this proceeding was instituted to obtain a peremptory writ of mandamus, and from an order granting its application defendant appeals.
By section 5 of the Railroad Law of 1890, as amended (Laws of 1893, chap. 433; now Consol. Laws, chap. 49 [Laws of 1910, chap. 481], § 12), it is provided that "if any domestic railroad corporation shall not, within five years after its certificate of incorporation is filed, begin the construction of its road and expend thereon ten per centum of the amount of its capital, * * * its corporate existence and powers shall cease." This statute is applicable to street surface railroad companies, and is self-executing. ( Matter of Brooklyn, Queens County Suburban R.R. Co., 185 N.Y. 183.) Upon the Ralph avenue route and the Utica avenue route within the prescribed period relator has expended a sum equal to ten per cent of the capital necessary to construct a railroad upon all of the eight routes named in the certificate, and the total mileage of track thus laid exceeds ten per cent of the entire trackage upon all of said additional routes. The learned court at Special Term fairly stated the controversy in these words: "The relator claims that all eight routes named in the certificate of extension filed December 31, 1892, constitute one extension. The city authorities on the other hand contend that the one certificate of extension enumerating eight routes contains in law and fact eight separate extensions." ( 80 Misc. Rep. 324.) We think that the latter construction is correct. An extension involves the idea of something pre-existing, with which it is connected, and which is thereby enlarged. In Bohmer v. Haffen ( 35 App. Div. 381, 388; affd., 161 N.Y. 390) Presiding Justice VAN BRUNT said: "In considering the provisions of chapter 676 of the Laws of 1892, in relation to extensions by street surface railroad corporations, it would seem that the word `extend' was not intended to be used in its restricted sense of prolongation in a given direction, but rather that it was intended to enable the railroad company to acquire a right of construction, maintenance and operation of additional routes which might be operated in connection with its existing lines." But each extension which is unrelated to any other extension except through the thing which they enlarge would naturally be spoken of as a separate extension just as the certificate in question described them as separate and additional routes. The branch must of necessity be joined to the vine and be a part thereof, but as between themselves each branch has a separate and distinct entity. In Matter of Brooklyn, Queens County Suburban R.R. Co. ( supra) the court said (p. 183): "The certificate of extension which a corporation files is in effect, clearly and simply, an amendment of its original articles of incorporation. Those original articles prescribe the line and extent of its proposed route. The certificate of extension prescribes the line and route of an additional road and to that extent amends the original articles of incorporation. For the purposes of this provision, we think it may naturally and easily be treated as an amendment to the articles of incorporation made to include the proposed extension, and the date of filing of which will fix the periods within which a corporation must act as to said extension." This language must of course be construed in the light of the facts then under consideration. In that case but a single extension, that along Saratoga avenue, was involved, and the court had before it the question whether the provisions of this statute were applicable to street surface railroads, were self-executing or otherwise, and the meaning of the words "ten per centum" of the amount of its capital. The learned court at Special Term, however, making use of this language as a basis for its argument, says: "It can hardly be contended that if all the streets named in the various routes in the certificate of extension of December 31, 1892, had originally been named in the articles of incorporation of the company, and over ten per centum of the total cost of the first projected railroad had been made in actual construction, there could have been a forfeiture." If the argument proves anything, it proves too much. If the original articles of incorporation are to be deemed amended in this broad sense, and were these new roads automatically to become part of the original system, then if the company had expended upon its original route ten per cent of the amount necessary to construct both its original and extended road, no actual construction would ever become necessary on the parts added by extension to prevent forfeiture for violation of the statutory requirement above referred to. Again, although more than ten per cent had been expended upon the construction of the original route, if when the certificate of extension was filed less than ten per cent of the cost of the original route plus the extension had been expended, instantly forfeiture would follow. The question actually decided in Matter of Brooklyn, Queens County Suburban R.R. Co. ( supra), that the ten per cent provision referred to the cost of the extension only, clearly indicates that the language of the opinion cannot be enlarged to the extent claimed. We think that the manifest purpose of the statutory requirement that within five years actual construction should begin, and ten per cent of the capital be then expended, was to prevent a railroad company from obtaining a franchise from the State for the operation of a railroad through a large number of designated streets, and then indefinitely postponing actual construction of track through any portion thereof. The subsequent history of the legislation confirms this view. The statute relating to extension as originally passed (Laws of 1892, chap. 676) in express terms authorized only the filing of one certificate of extension. In the succeeding year (Laws of 1893, chap. 434) a continuing power was given to file such certificate "from time to time," and in express terms such certificate was made to refer to the construction of "branches" as well as extensions. The section was further amended (Laws of 1895, chap. 933) in particulars not here important, and is now found in section 170 of the present Railroad Law (Consol. Laws, chap. 49, supra) in these words: "Any street surface railroad corporation, at any time proposing to extend its road or to construct branches thereof, may, from time to time, make and file in each of the offices in which its certificate of incorporation is filed, a statement of the names and description of the streets, roads, avenues, highways and private property in or upon which it is proposed to construct, maintain or operate such extensions or branches." There would seem to have been no necessity for the amendment of 1893, perpetuated in the present Railroad Law, if at one time a railroad company could file a certificate of extension, relating not only to its present needs, but to every street or avenue that by any excess of imagination it might conclude would be useful in the future. We think, therefore, that when there is included in a certificate of extension several separate and distinct routes, unrelated to each other, each route must, for the purpose of the statute under consideration, be deemed a separate extension. If, availing itself of the provisions of the amended statute, relator had "from time to time" and on eight successive days, filed eight separate certificates, designating in each a single route, we think that it would not be contended that these eight certificates were to be read together as constituting a single extension. The fact that eight unrelated routes, separately described, were included in a single instrument, cannot make any difference as to the construction or meaning thereof.
The order should be reversed, with ten dollars costs and disbursements, and the motion for a peremptory writ of mandamus should be denied, with fifty dollars costs.
JENKS, P.J., THOMAS, CARR and PUTNAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for peremptory writ of mandamus denied, with fifty dollars costs.