Broome County NyArchives Court.....Matter, Of Washington St, Asylum & Park R R Co 1889
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Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

In the Matter of Proceedings by the WASHINGTON STREET, ASYLUM AND PARK RAILROAD 
COMPANY to Acquire a Crossing of the Railroad of the Syracuse, Binghamton and 
New York Railroad Company.

Horse railroad companies — right of, to consolidate under chapter 108 of 1875 
and chapter 387 of 1883.

Under chapter 108 of the Laws of 1875, and chapter 387 of the Laws of 1883, "in 
any case where two or more railroad companies shall have been, or shall 
hereafter be, organized under the laws of this State, the whole of whose lines, 
as located by them, respectively, shall form one continuous and connecting line 
of road," although such roads may have been organized, and may be transacting 
business as horse railroad companies, such companies are authorized to 
consolidate their respective roads.

Semble, that the provision in section 3 of chapter 917 of the Laws of 1869, 
that "nothing herein contained shall apply to street railroads," is limited in 
its effect to that section of the act, but the provision in section 7," nor 
shall this act apply to street railroads," excludes street railroads entirely 
from the operation of the act of 1869.

Appeal from an order made at Special Term in Broome county, and entered in the 
Broome county clerk's office January 23, 1889, denying the prayer of the 
petitioner for the appointment of commissioners to ascertain and determine the 
point and manner of crossing, and the compensation to be paid to the Syracuse, 
Binghamton and New York Railroad Company for the use thereof; and also an appeal 
from the judgment entered in said county clerk's office January 23, 1889, upon 
said order.

At the close of the findings of fact made by the Special Term the conclusion of 
law thereon was stated as follows: "That the proceedings taken by 
the 'Washington Street; State Asylum Railroad Company' and the 'Park Avenue 
Railroad Company' to merge and consolidate their stock, franchise and property 
into a new company, 'to be known as the Washington Street, Asylum and Park 
Railroad Company,' were without authority of law, and were inoperative and void, 
and for such reason the petitioner in this matter never acquired any lawful 
existence as a corporation. That it is not, and never has been, a legally 
organized corporation, affected by or entitled to avail itself of any of the 
provisions of chapter 140 of the laws of 1850. That for such reasons the 
petitioner is not entitled to acquire a crossing over the defendant's road. And 
its application for the appointment of commissioners for such purpose should be 
denied."

It was also found as a fact that the Washington Street and State Asylum Railroad 
Company "filed articles of association in the office of the secretary of State 
on or about October 23, 1871, and thereafter acted as a corporation; and, in the 
year 1872 constructed, and had ever since, up to the time of the consolidation 
hereinafter mentioned, operated and claimed to own a street railroad in Robinson 
street aforesaid. That said articles of association, so filed, in form were in 
accordance with the provisions of said act of 1850, and the amendments thereof, 
and all the proceedings in relation to such organization, in form and manner, 
were in accordance with and in conformity to the provisions and requirements of 
said law of 1850.

"That in June, 1881, certain other persons had taken like proceedings to 
incorporate themselves under the laws of 1850, and amendments thereto, as the 
Park Avenue Railroad Company, to construct, maintain and operate a street 
railroad in said city of Binghamton, and on May 6, 1882, filed articles of 
association in the office of the secretary of State, and thereafter acted as 
such corporation. That said articles of association and incorporation, in form, 
were in accordance with the requirements of said law of 1850, and all the 
proceedings in relation to such organization, in form and manner, were in 
accordance with and in conformity to the requirements of said act, except it was 
written in such articles, and they show upon their face, the object and purpose 
of the corporation was to construct and operate a street railroad, using animal 
power as its motive power."

"In the autumn of 1887, such two companies being then engaged in operating 
continuous lines of street railroads in the city of Binghamton, proceeded, in 
manner and form, as required by the existing laws of this State, relating to the 
consolidation of railroad companies, to merge and consolidate their capital 
stock, franchise and property, and to thereby form a new corporation by the name 
of the "Washington Street, Asylum and Park Railroad Company, for the purpose of 
operating the continuous line of their said street railroads. On the 4th day of 
October, 1887, they filed their agreement and the certificates required by such 
laws in the office of the secretary of State, and all the proceedings taken by 
them for the purpose were in conformity with the requirements of such laws. The 
agreement so filed recited that they made such merger and consolidation, one 
with the other, 'in pursuance and by virtue of the provisions of chapter 108 of 
the Laws of 1875, and the acts amendatory thereof, and the several acts therein 
referred to.' The petitioner in this matter is the company so claimed to have 
been formed by consolidation, and ever since the 4th day of October, 1887, it 
has operated and managed, and now is operating and managing the street railroad 
described in the petition, claiming to be a duly organized corporation with 
power and authority to own, use and operate the same.

"That the said Washington Street and State Asylum Railroad Company heretofore 
constructed its tracks in Robinson street over and across the tracks of the 
Syracuse, Binghamton and New York Railroad Company's railroad, nearly at right 
angles and at grade without having instituted any proceedings to acquire the 
right to construct such crossing by condemnation and without having obtained any 
deed or consent, by writing or otherwise, from the Syracuse, Binghamton and New 
York Railroad Company, or its predecessors in title, or any one acting in their 
behalf. Neither had the petitioner instituted such proceedings or obtained such 
consent or deed."

It was also found that the Washington Street and State Asylum Railroad Company, 
since 1874, maintained and operated its railroad over and across the tracks of 
the Syracuse, Binghamton and New York Railroad Company's road in said Robinson 
street, and in so doing ran its cars across the tracks of the Syracuse, 
Binghamton and New York Railroad Company's said railroad during the past two 
years four times each hour, and prior to that time twice each hour, for fifteen 
hours each day.

George Whitney and W. J. Welsh, for the appellant.

D. S. & R. B. Richards, for the respondent.

Hardin, P. J.:

Assuming, as was held at the Special Term, that the Washington Street and State 
Asylum Railroad Company was organized under the general railroad act of 1850, 
and the amendments thereto in 1871; and the Park Avenue Railroad Company was 
organized under the same statute in 1882, and were being operated under their 
charters, and were existing railroad corporations under the laws of this State, 
the important inquiry presented by the appeal here is in regard to their ability 
or authority to consolidate in virtue of the laws of this State, as they assumed 
to do in 1887. Chapter 917 of the Laws of 1869 authorized the consolidation 
of "certain railroad companies." (See title of the act.) The act provides: "It 
shall and may be lawful for any railroad company or corporation organized under 
the laws of this State, or of this State and any other State, and operating a 
railroad or bridge, either wholly within or partly within and partly without 
this State, to merge and consolidate its capital stock * * * with the capital 
stock, franchises and property of any other railroad company or companies 
organized under the laws of this State, or under the laws of this State and any 
other State, or under the laws of any other State or States, whenever the two or 
more railroads of the companies or corporations so to be consolidated shall or 
may form a continuous line of railroad with each other, or by means of any 
intervening railroad bridge or ferry."

This statute contains ten sections perfecting a system or mode of consolidation. 
In the third section it is declared that corporations, upon filing the agreement 
of consolidation, "shall be deemed and taken to be one corporation by the name 
provided in said agreement and act." That section also contains a restriction 
upon the fare to be taken by the New York Central Railroad to two cents per 
mile, "and no more, wherever it is now restricted to that rate of fare; but 
nothing herein contained shall apply to street railroads." It may be inquirable 
as to the last sentence found in section 3, whether it is not limited to the 
provision of the section, instead of being intended to apply to the said 
provisions of the whole act. The words "but nothing herein contained" may have 
full effect by restricting their meaning to the provisions of the section in 
which they are found. Such would seem to be the effect of their insertion.

In section 7 of the act it was provided that "nothing in this act contained 
shall be so construed as to allow such consolidated company to charge a higher 
rate of fare per passenger per mile, upon any part or portion of such 
consolidated line, than is now allowed by law to be charged by each existing 
company, respectively; nor shall this act apply to street railroads." If the 
limiting words found in section 3 apply to the whole act, and exclude from its 
operation street railroads, the insertion in section 7 of the words "nor shall 
this act apply to street railroads," would seem to be superfluous; however, the 
force of the words in section 7, "nor shall this act apply to street railroads," 
clearly was to exclude from the operation of the act street railroads; or, to 
put the idea in another form, the legislature, by the act of 1869, authorized 
steam roads to consolidate; it did not authorize street roads to consolidate by 
the terms of that act. The use of the words "nor shall this act apply to street 
railroads," found in section 7, clearly indicates that the legislature supposed 
that the use of general words in section 1 would make its provision applicable 
to street railroads, unless the words of exclusion found in section 7 were 
inserted in the act. It may be observed, therefore, that the general words in 
section 1 of the act were broad enough to include all railroads, both steam and 
street. The pertinency of this observation will be more apparent when we come to 
consider the act of the legislature passed in 1875, found in chapter 108 of the 
laws of that year. The title is "An act in relation to railroad corporations." 
It may be observed, in passing, that the title is general; contains nothing in 
its language to indicate that it was an amendment of any preceding law; its 
provisions are in the nature of an enabling act, and each and every of its 
provisions are entitled to receive full force, and should be applied to all 
cases named therein, and all classes of railroads embraced within its general 
provisions. Its language is as follows: "Section 1. In any case where two or 
more railroad companies shall have been, or shall hereafter be, organized under 
the general laws of this state, the whole of whose lines, as located by them, 
respectively, shall form one continuous and connecting line of road, the said 
companies may consolidate their lines of road, stock, franchises and property 
according to the existing laws of this State relating to the consolidation of 
railroad companies; and any such consolidated company may thereupon construct or 
finish the construction of such continuous line of railroads and operate the 
same, subject to all provisions of law applicable to railroad corporations 
organized under the said general laws, so far as not inconsistent with this act; 
but this act shall not in any manner affect the existing laws regulating the 
rate of fare on any railroad." This language is broad and comprehensive. Surely, 
if the language of section 1 of the act of 1869 was broad enough to cover street 
railways, as was evidently so understood by the legislature, as is evidenced, as 
we have seen, by the insertion of a positive limitation of its application to 
roads other than street roads, surely the words of section 1 of the act of 1875 
are sufficiently comprehensive to embrace both classes of roads, those operated 
by steam and those known in the legislation of the State as street railroads. An 
examination of section 1 of the act of 1875 indicates an intent on the part of 
the legislature to authorize, not only the roads that "have been," but the 
companies that should be organized after its passage, "under the general laws of 
this State." If we could find in the title of the act of 1875, or in the 
phraseology of the body of the act, any evidence of an intent on the part of the 
legislature to amend the act of 1869, we might find a view favorable to the 
contention of the respondent. However, in consideration of the title of the act 
of 1875, the unqualified language used in the
body of the act, presents very clearly, evidence of an intention on the part of 
the legislature to authorize the consolidation of roads not mentioned in any 
preceding legislation.

This act was amended in 1883 by chapter 387. The act of 1883 purports to be an 
amendment of the law of 1875, as it is entitled "An act to amend chapter 108 of 
the Laws of 1875," etc., and, in its various sections, it provides that chapter 
108 of the Laws of 1875, entitled "An act in relation to railroad corporations," 
is amended so as to read as follows. Here we have a clear intention expressed by 
the legislature, in the title of the act and in the body of the act, to amend 
the act of 1875. No such evidence of any intent to amend the act of 1869 is 
found in the act of 1875. In the act of 1875 it was provided that "where two or 
more railroads shall have been, or shall hereafter be, organized under the 
general laws of this State," while in the act of 1883, the same words are used 
except the word "general" is omitted in referring to the laws of this State, and 
in the latter part of the section the word "general" is omitted in the act of 
1883, although found in the act of 1875. The omission of the word "general" in 
the act of 1883 would seem to have been for the purpose of allowing the 
provision found in the act of 1875 to apply to any railroads organized under the 
laws of the State, and to include those corporations that were organized in 
virtue of special acts, and to obviate the limitation to railroad companies 
organized under the general laws of the State. It is probable that the 
expression "general laws of the State" limited the application of the provisions 
of the act of 1875 to such railroad companies as were organized under the 
general railroad law of 1850, and the acts amendatory thereof. Even this change 
favors this construction which we are inclined to give to the act of 1875. It is 
not unreasonable to suppose that if the legislature had intended to limit the 
application of the act of 1875, or the amendment thereof in 1883, to steam roads 
it would have inserted therein a provision in express terms restricting its 
application to such roads. (Ellice v. Winn, 12 Wend., 343; Farley v. De Waters, 
2 Daly, 192; Norris v. Crocker, 13 How. [U. S.], 439.)

We are inclined to the conclusion that it was the intention of the legislature, 
by the acts of 1875 and 1883, to authorize "in any case where two or more 
railroad companies shall have been, or shall hereafter be, organized under the 
laws of this State, the whole of whose lines, as located by them, respectively, 
shall form one continuous and connecting line of road," such companies to 
consolidate. We are, therefore, of the opinion that the agreement filed in 1887, 
effectuated a consolidation of the two roads mentioned therein, and that the 
petitioner from that time became a corporate body, and thereby became subjected 
to the regulations and restrictions of the general railroad law of 1850, and the 
acts amendatory thereof, so far as the same are applicable, and also entitled to 
the benefits and privileges thereof. It follows, therefore, that the conclusion 
at the Special Term denying the motion for the appointment of a commission to 
settle the manner of crossing and the compensation therefor was improperly 
denied.

We think the order and judgment entered thereon should be reversed, with costs, 
and the petitioner allowed to bring its application before a Special Term held 
in the sixth judicial district, upon giving eight days' notice thereof, and then 
and there apply for the appointment of commissioners.

The order and judgment should be reversed, with costs, and proceedings remitted 
to the Special Term for further action.

Merwin, J., concurred; Martin, J., not voting.

Order and judgment reversed, with costs, and the proceedings remitted to the 
Special Term for further action.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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