Schieffelin v. McClellan

Scott, J. This is an appeal from an order enjoining the board of estimate and apportionment of the city of Mew York from proceeding further with the hearing upon, and from acting upon an application for certain changes and modifications to the contract heretofore entered into between the city of Mew York and the South Shore Traction Company. The only question we have to consider is whether or not the board may legally proceed to act, and whether [666] they máy so legally proceed depends upon the question whether or not their acts are regulated by section 92 of the Railroad Law as well as by section 74 of the Greater New York charter, and if so regulated, ■ whether or not the provisions of thege apts have been complied with. The provisions of the Railroad Law read as follows: “ § 92. Consent of local authorities; how procured.—The application for the consent of the local authorities shall be in writing and before acting thereon such authorities shall give public notice thereof and of the time and place when it will' first be considered, which' notice shall be .published daily in any city for at least fourteen days in two of its daily newspapers, if there be two, if not, in one,. to be designated by the mayor'. - * * * Such consent must be upon the expressed condition that the provisions of this article pertinent thereto shall be complied with, and shall be filed in the office of the clerk of the county in which such railroad is located. Whenever the consent of the common-council of a "city is applied for, the first consideration, of which notice is hereby .required, may be by' committee of such common council. Any such notice, publication or consideration heretofore or here-' after given, made or had in substantial conformity with the requirements of this section, is and shall be sufficient notice, publication and consideration for all 'the. purposes hereof, notwithstanding any conflicting provision of any local or special act of charter.” (See Gen. Laws, chap. 39 [Laws of 1890, chap. 565], § 92, as amd. by Laws of 1893, chap. 434.) The charter provisions as they now stand are as follows : “ § 74. Before any grant of the franchise or right to use any street, avenue, waterway, parkway, park, bridge, dock, wharf, highway or public ground or water within or belonging to the city shall be made by the board of estimate and apportionment, the proposed specific grant embodied in the form of a contract with all of the terms and conditions, including the provisions as to rates, fares and charges, and together with the form of the resolution or resolutions for the granting of the same, shall be' entered in the minutes, of the board of estimate and apportionment, and after such eñtry shall be published at least twenty days in the City Record and at least twice in two daily newspapers published in the city, to be désignated by the mayor, at the expense of the proposed grantee.. The board of [667] estimate and apportionment shall, before authorizing any such contract or adopting any such resolution, set a date or dates for a public hearing thereon, at which citizens shall be entitled to appear and be heard. No such hearing shall be held, however, until notice thereof shall have been published for at least ten days immediately prior thereto in the City Record^ and at least twice in two daily newspapers published in the city, to be designated by the mayor, at the expense of the proposed grantee, and the said board of estimate and apportionment, before authorizing any such contract or adopting any such resolution, shall make inquiry as to the money value of the franchise or right proposed to be granted and the adequacy of the compensation proposed to be paid therefor, and publish the results of such inquiry at least ten days in the City Record and at least twice in the daily newspapers in which such form of contract shall be published. Every such contract or resolution shall be entered on the minutes or record of such board of estimate and apportionment, and every contract or resolution containing or making such grant shall require the concurrence of members of the board of estimate and apportionment entitled as provided by law to three-fourths of the total number of votes to which all the members of the said board shall be entitled, and the votes shall be shown by the ayes and noes as recorded in the minutes of the board. Thirty days at least shall intervene between the introduction and final passage of any such resolution or authorization of such contract. The separate and additional approval of the mayor shall be necessary to the validity of every such contract or resolution. This act shall apply to any renewal or extension of the grant or leasing of the property, to the same grantee or to others. Within five days after the adoption of any such resolution or any such authorization, a copy thereof, including the full text of the franchise, grant or contract, and duly attested by the clerk of the board of estimate and apportionment, shall be transmitted to each-of the following: The comptroller, the corporation counsel, the city clerk and the board of rapid transit railroad commissioners of The City of New York, to be preserved by them among the archives of their departments or office. All such certified copies shall be deemed to be public records.” (See Laws of 1901, chap. 466, § 74, as amd. by Laws of 1905, chaps. 629, 630.) [668] Here we have two acts providing liow the consent of the local authorities may be given to the -use of the public streets by a street railroad corporation, what notice of the application shall be given ■ and what public hearing shall be had; The earlier one is a general act covering the whole State. The’. ■ other is a local and spécial act relating exclusively to the city of Hew York. The one provides in general terms that before the local authorities act • upon such an application fourteen days’ notice shall be given of the time and place at which it will be first considered.; . Ho positive provision is made for a public hearing, which lias, to be read into the statute by implication. (Secor. v. Village of Pelham Manor, 6 App. Div. 236.) Ho directions are given us to the ’ form or contents of the notice,, that being left, wholly to the discretion of the public authorities. ■ . The later, special act designed to effect the same result, to wit, notification to the- public of any proposed consent^ and an opportunity for a public hearing thereon, is much more stringent and. : specific. It requires that the proposed specific grant embodied in the form of a contract with all the terms and conditions, including ■the.provisions as to the rates, fares and charges together with the form of .resolution for the granting'of the same, shall be entered in. the minutes of the board of estimate and apportionment and pub- . ' fished at least twenty days in the City Record, and at least twice in . two daily newspapers.. The board is-then required to set a date or ’ dates for a public hearing thereon at which citizens shall be entitled • to appear and be heard. Of this meeting tgn days’ notice niusti be given by advertisement. ’ The board must make.inquiry as to the .money value of the franchise or right proposed to be granted and the adequacy of the compensation proposed to be paid therefor, the results must, fie published for" ten days,, and finally, to prevent anything approaching haste in the action of the board, it is "provided that at least thirty days must intervene between the introduction and the - final passage of any resolution authorizing such a "contract. .It is apparent that the charter provisions require as much, and indeed much more, in the way of preliminary notice, and opportunity to - citizens to learn of the. proposed: action and to intelligently discuss- ’. it than is required by the Railroad Law; It is unreasonable to [669] assume that the Legislature intended that both procedures should be followed, especially in view of that clause of section 92 of the Railroad Law which provides that “ any such notice, publication or consideration heretofore or hereafter given, made or had in substantial conformity with the requirements of this section, is and shall be sufficient notice, publication and consideration for all the purposes hereof, notwithstanding any conflicting provision- of any local or special act or charter.” It is a well-established rule of statutory construction that a later special statute which covers the whole subject-matter of an earlier general statute* and which, although not repugnant to the earlier statute, embraces new and more specific provisions, will be held to have been intended, within the scope of its operations, as a substitute for and a repeal pro tanto of the earlier genez'al act. (Heckmann v. Pinkney, 81 N. Y. 211; Excelsior Petroleum Co. v. Lacey, 63 id. 422; People v. Gold & Stock Tel. Co., 98 id. 67; New York Cable Co. v. Mayor, etc., of N. Y., 104 id. 1, 15.) In my opinion this rule is distinctly applicable to the acts under consideration, and as the preliminai-y acts of the defendants concededly follow the requirements of the charter, the injunction should not be continued. Personally I should an'ive at the same result if I considered that both acts must be followed, for I.can see no basis for the claim that, in any event, proceedings must be carried to a conclusion under one act, before the preliminary steps may be taken under the other. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham and Houghton, JJ., concurred; McLaughlin and Clarke, JJ., dissented.