Opinion
April, 1907.
William N. Dykman, for motion.
James D. Bell, Assistant Corporation Counsel, opposed.
Application having been made to the defendants for permits to open Ocean parkway, in the thirty-first ward of the borough of Brooklyn, at the corner of Avenue I, for the purpose of connecting buildings on abutting lands with electrical wires maintained by the relator in the parkway, and the permits having been refused, this motion for a peremptory writ of mandamus directing the issuance thereof has been made.
The objections to the issuance of the permits and also to the granting of these motions are stated to be, first: that the Flatbush Gas Company has never received, pursuant to article VI of the Transportation Corporations Law, the consent of the municipal authorities to lay its wires and conduits in Ocean parkway, and, second: that, if the consent which it did obtain is to be considered as coming from the proper source, yet it was void as an attempt to grant a perpetual franchise, contrary to the provisions of section 73 of the Greater New York Charter.
The Ocean parkway was, prior to 1888, a highway running from Prospect Park in the old city of Brooklyn, through a portion of that city and through the towns of Flatbush, New Utrecht and Gravesend, to the ocean.
Of course the authorities of Brooklyn had no control or jurisdiction over that portion of it lying outside the then city limits, as the highway commissioner of each town through which it passed was vested with authority over that part which was within his township. Thus, under ordinary circumstances, this highway would have been subjected to four distinct powers. The act of 1888, chapter 583 (charter of the city of Brooklyn), however, gave to the department of parks of Brooklyn full and exclusive control and power over it, with the right to direct the public use thereof and to pass and enforce laws and ordinances for its regulation and government.
Thus, under the circumstances existing in 1888, the common council of Brooklyn could legislate and grant franchises for the city, while the park department had control of and authority over Ocean parkway within and without the city. Unless this be so, the phraseology of section 2, title XVI, of the charter of Brooklyn is diffuse and confused. "The said Department of Parks," reads that section, "shall have the exclusive government, management and control subject however to the laws of the State and to the powers of the Common Council in relation thereto of all the parks, squares, parkways and public places in the City, and full and exclusive power to govern and manage the Ocean Parkway from the Circle at the southwesterly angle of Prospect Park to the Ocean," etc.
Subsequently all the outlying towns above mentioned were annexed to the city of Brooklyn, but the powers of the park department over the parkway were not changed or modified.
When, therefore, in 1896, it was determined to light this highway with electric lights, who were the "municipal authorities" whose consents were required by the Transportation Corporations Act to lay and construct wires in the street?
That the Legislature could have made the park department such an authority is determined by Wilcox v. McClellan, 185 N.Y. 9, and that it did so constitute that department seems evident from the act of 1898 and surrounding circumstances. People ex rel. N.Y. R. Gas Co. v. Cromwell, 89 A.D. 291.
Accordingly, on the 2nd day of January, 1896, the then commissioner of parks, Frank Squier, entered into a contract with the relator, the Flatbush Gas Company, to furnish a certain number of electric lights for the Ocean parkway for the period of three years from January 1, 1898, giving to that company the right to erect its poles, wires and necessary appliances in the street.
But if it be that the provisions of the charter above quoted from mean, as the corporation counsel claims, that the park department had full and exclusive control of the Ocean parkway, subject to the powers of the common council as in the case of Prospect Park, then, as the Flatbush Gas Company entered upon the highway under the contract of 1898, laid its wires, and has furnished light to the city and others for the past ten years, it must be presumed that the common council of the city of Brooklyn and the other municipal authorities succeeding that body have consented to such user, construction and operation. People ex rel. N.Y. R. Cas Co. v. Cromwell, 89 A.D. 291.
As to the first objection, therefore, I consider that the relator obtained the consent of the proper authorities.
As to the second objection to the granting of the writ a more serious question is presented.
The Greater New York Charter (Laws of 1897, chap. 378) was passed and approved May 4, 1897, section 73 of which enacted that, "After the approval of this act, no franchise or right to use the streets, avenues, parkways or highways of the city shall be granted by the municipal assembly to any person or corporation for a longer period than twenty-five years."
These words have been held to apply (Blaschko v. Wurster, 156 N.Y. 442) to designate the aldermen, common council or governing body having the power to deal with the subject-matter of the restriction prior to the date when the new government was to go into full operation and, therefore, were controlling after May 4, 1897, upon the "municipal authorities" of the city of Brooklyn having the power to consent to the laying of wires in Ocean parkway. After that date, consents or franchises could be granted for no longer period than twenty-five years.
As above stated, the park commissioner of Brooklyn made a contract with the Flatbush Gas Company, January 2, 1896, to light Ocean parkway for the period of three years by overhead construction. On August 4, 1897, or just three months after the Greater New York Charter was approved, this contract was abrogated or modified by permitting or requiring underground wires or construction and giving to the Flatbush Gas Company the right to furnish electric current to such public or private consumers as may be desirous of using it. While it is provided in this latter contract that it shall continue for three years from September 1, 1897, an added clause reads as follows: "The conduit laid by the party of the second part shall remain the property of the said party of the second part after the expiration of the term of this contract and the right and privilege hereinbefore granted to the party of the second part to occupy said conduit with wires and to extend its wires to consumers and to supply electric current to them shall continue in full force and effect, but this agreement shall in no way operate to give the said party of the second part any exclusive privilege."
If this paragraph grants or was intended to grant a consent or franchise in perpetuity, I consider it contrary to and in violation of section 73 of the charter and void as such. But the "municipal authorities" could have given such consent or made such contract for twenty-five years; and, as the company has been in use and possession of the wires and conduits furnishing lights for ten years and extending its operations during that time with the consent and permission of the city departments, I think its franchise is at least good for twenty-five years, especially as the contract of August, 1897, makes no mention of any time during which the company may supply private consumers.
The franchises attempted to be granted in the cases of Blaschko v. Wurster, supra, and Hendrickson v. City of New York, 160 N.Y. 144, were clearly an attempt to evade the provisions of the Greater New York Charter which was about to go into effect, and the circumstances of their granting evidenced bad faith and deliberate breach of duty on the part of the authorities. Consequently, these acts were void, and the courts refused to consider the grant to the railroad in the Blaschko case good even for twenty-five years. Like reasons, however, cannot apply here, where the gas company has been operating under some kind of a franchise for ten years, with the consent, approval and for the benefit of the city.
The motion for a peremptory mandamus is for the above reasons granted.
Motion granted.