November Term, 1898.
Frederick E. Hawkes, for the respondent village of Waverly.
George M. Diven, for the appellants, Waverly and State Line Railway Company and Lehigh Valley Railroad Company.
Frederick Collin, for the appellant, Erie Railroad Company.
At the time of the presentation of the petition to the board of trustees of the village of Waverly, for the extension and laying out of Spaulding street across the defendants' tracks, chapter 62 of the Laws of 1853 was in full force and effect. That statute provided that it should be lawful for the authorities of any city, village or town to lay out streets or highways across the tracks of any railroad without compensation to the corporation owning such railroad, and that, after receiving notice thereof, it should be the duty of any railroad corporation, across whose tracks a street or highway should be laid, to cause the said street or highway to be taken across their tracks in the manner most convenient and useful for public travel, and to cause all embankments, excavations and other work to be done on their road for that purpose.
July 1, 1897, chapter 754 of the Laws of 1897 took effect; that chapter amended article 2 of the Railroad Law (Laws of 1890, chap. 565) by adding thereto a number of sections, which, among other things, provided for taking streets and highways across the tracks of railroads; and by section 3 all acts and parts of acts inconsistent with that act were repealed. The provisions of this act, in relation to railroad crossings, are inconsistent with those of chapter 62 of the Laws of 1853.
Under chapter 62 all expenses of taking a street across the tracks of a railroad corporation are to be paid by such railroad corporation, and the manner of its being taken across is largely in the discretion of such corporation.
Under chapter 754 of the Laws of 1897, in one class of cases, the expenses of taking a street or highway across the tracks of a railroad are to be divided between the railroad corporation and the municipality, and, where a change is made in an existing crossing, the expense is to be divided between the railroad corporation, the State and the municipality; the manner in which it shall be taken across is to be determined by the Railroad Commissioners.
The policy of the State, as evinced by its legislation, is to avoid grade crossings.
Chapter 754 provides a complete scheme regulating all kinds of crossings, whether the tracks of a railroad crossing streets already laid out or streets newly laid out, opened or extended, across the tracks of a railroad already in existence, or whether a change in the grade of a crossing already in existence, and commits the control of the manner of making and constructing such crossing to the discretion of the Railroad Commissioners. ( People ex rel. City of Niagara Falls v. N.Y.C. H.R.R.R. Co., 52 N.Y. Supp. 234; City of Yonkers v. N.Y.C. H.R.R.R. Co., 52 id. 1074.)
And the court should not by its order or direction compel anything to be done in anywise contravening the public policy of the State, except in a case of absolute right existing in the party asking such action.
The contention of the respondent is that its proceedings are not affected by the passage of chapter 754 of the Laws of 1897; that its resolution to extend Spaulding street was adopted before that act took effect, and that by virtue of section 31 of the Statutory Construction Act (Laws of 1892, chap. 677) it is entitled to proceed under the provisions of chapter 62 of the Laws of 1853.
It is not necessary, however, for us to pass upon the meaning or effect of section 31 of the Statutory Construction Act at this time.
The remedy by mandamus is not an absolute legal right, but the writ is one that may be granted or refused in the discretion of the court, which discretion should be exercised in accordance with the peculiar circumstances of each case. ( People ex rel. Hackley v. Croton Aqueduct Board, 49 Barb. 259; People ex rel. Slavin v. Wendell, 71 N.Y. 171.)
It is a remedy that will not be granted where there is an adequate remedy at law. ( People ex rel. Lunney v. Campbell, 72 N.Y. 496.)
And while it may be said that the village of Waverly has not an adequate remedy at law, in the sense that is meant in the case cited, still the principle is applicable, because it is not necessary, in order to have Spaulding street extended across the appellants' tracks, that such street should be carried across such tracks under the statute of 1853; it may be done under section 61 of the Railroad Law, as amended by the statute of 1897, without the passage of any new or additional resolution for the extension or opening of such street.
We must also consider the fact that chapter 754 was passed May 22, 1897, while the resolution to extend this street was pending before the board of trustees of the village of Waverly, and that during the hearings that were had before such board in relation thereto its attention was called to the fact that such act had been passed and would become operative July 1, 1897; also that the village of Waverly has gone to no expense in procuring lands necessary for the extension and opening of the street.
To compel the defendants to proceed in the manner asked by the village of Waverly is to ask the court to enforce a proceeding contrary to the policy of the State, as evidenced by chapter 754 of the Laws of 1897, and to take the construction of such crossing out of the supervision and control of the Railroad Commissioners, in a case where the party asking such action has not yet been to any expense under the former statute, and when it can obtain the crossing under the present statute and in conformity with the policy of the State in such matters. To issue the writ under such circumstances is not, it seems to me, exercising a sound judicial discretion.
For these reasons the orders appealed from should be reversed, with ten dollars costs and disbursements, and the application for a writ of mandamus denied, with ten dollars costs.
Orders reversed, with ten dollars costs and disbursements, and application for writ of mandamus denied, with ten dollars costs.