Opinion
Argued January 16, 1894
Decided February 6, 1894
B.F. Tracy for appellants. William C. De Witt and Jesse Johnson for respondent.
The appeal is from a judgment of the general term of the City Court of Brooklyn, affirming an interlocutory judgment of the special term, overruling demurrer of the defendant, the Equity Gas Works Construction Company, to the complaint in this action.
This is a suit in equity brought by the attorney-general, upon his own information, to restrain the defendants from opening the streets of the city of Brooklyn and laying gas pipes therein. The complaint alleges the incorporation of the defendant, the Equity Gas Light Company, under an act of 1848, entitled "An act to authorize the formation of gas light companies;" also that its rights and powers were modified by chap. 144, Laws 1874; that certain streets, described, in the city of Brooklyn are public highways of the state of New York, and are so used and occupied; that the said Equity Gas Light Company has no right to lay pipes in any of said streets, for the reason that its corporate powers long since ceased by failure to commence the transaction of its business within the period prescribed by law; that defendant, the Equity Gas Works Construction Company, claims the right to lay said pipes under a contract with the Equity Gas Light Company; that the defendant Devlin claims the right to lay said pipes by virtue of being an officer of said Equity Gas Light Company; that the Equity Gas Light Company and its officers are claiming the right through said Construction Company and Devlin to lay said pipes; that the claims and threats of the gas light company and of the other defendant are made under and by virtue of the articles of incorporation of said, the Equity Gas Light Company and the act of 1874, and that if the defendants are allowed to proceed great injury will be done to the highways of the People of the state and a nuisance created by the tearing up of the pavements, making the trenches and laying the pipes therein. The prayer for relief is that the defendants, and each of them, be enjoined and restrained from committing the said acts.
On the argument the counsel for the People devoted much time to a very able discussion of three questions, viz.: First, was the forfeiture under the charter of the Equity Gas Light Company self-executing; second, if so, had the corporation incurred the penalty of forfeiture by reason of failure to organize and commence the transaction of its business as required by law; and third, did the act of 1874 relieve the company from this forfeiture. Under the disposition we feel constrained to make of this case it is unnecessary to pass upon any of these questions. We are of opinion that this action cannot be regarded as brought under any of the provisions of the Code of Civil Procedure.
The court below held, and the counsel for the People in his argument here contended, that this action is maintainable under section 1948 of the Code of Civil Procedure, subdivision 3. The general term stated this conclusion was reached after some hesitation.
Section 1948 provides when quo warranto can be maintained as follows, viz.: "The attorney-general may maintain an action upon his own information or upon the complaint of a private person in either of the following cases: * * *
"3. Against one or more persons who act as a corporation within the state without being duly incorporated, or exercise within the state any corporate rights, privileges or franchises not granted to them by the law of the state."
It is obvious from the bare reading of this section that the case at bar is not within its provisions. The section contemplates an action against individuals and not against corporations. This case is not in the nature of a quo warranto, but is a suit in equity to restrain the commission of an alleged nuisance by a corporation, its contractor and officer.
It is not averred that the Construction Company and Devlin are acting as a corporation without being duly incorporated, or are exercising any corporate rights, privileges or franchises not granted to them by the law of the state, but, on the contrary, it is specifically alleged that the Equity Gas Light Company, the Construction Company and Devlin are claiming to act under and by virtue of the articles of incorporation and the act of 1874. The present action must, therefore, be treated as a suit in equity to restrain the commission of an alleged nuisance.
The learned counsel for the People urged that if this action could not be sustained under section 1948 of the Code, subdivision 3, it is maintainable in equity, as a matter of common law. This brings us to the question in the case we regard as controlling.
It is familiar law that the People can maintain a suit in equity to abate a public nuisance in the highways of this state when the circumstances of the case show it involves the public safety or convenience. It is equally true that a court of equity will not interfere when the matter can be dealt with effectually by the local officials, to whom the state has delegated a portion of its authority.
This was held in Attorney-General v. Metropolitan Railroad Co. ( 125 Mass. 515).
The court said: "The jurisdiction of a court of equity to abate an existing or prevent a threatened nuisance, upon information filed by the attorney-general, is limited to those public nuisances which affect or endanger the public safety or convenience, and require immediate judicial interposition. ( Attorney-General v. Tudor Ice Co., 104 Mass. 239.) The nuisance must be clearly established. ( District Attorney v. Lynn Boston R.R. Co., 16 Gray, 242.) And the court will not interfere where the obstruction to the rights of the public is of such a character that it may with equal facility be removed by other constituted authorities and public officers. ( Attorney-General v. Bay State Brick Co., 115 Mass. 431, 438.)
"There must be a want of adequate sufficient remedy and the injury to public rights must be of a substantial character and not a mere theoretical wrong."
This same principle is sustained by the English cases. In Attorney-Genl. v. The Sheffield Gas Consumers' Company (3 De Gex, M. G. 304) it was held that the disturbance of a pavement in a town by an unincorporated gas company for the purpose of laying down gas pipes was not such a nuisance as to warrant an injunction either upon a bill or upon an information.
In the case at bar the People have abundant remedy without coming into a court of equity.
The state has delegated to various officials acting under the present charter of Brooklyn ample power to protect and maintain the streets of that city.
We are, therefore, of opinion that the facts in this case do not warrant the intervention of the equitable powers of the court and the complaint must be dismissed as to the appellant, the Equity Gas Works Construction Company.
Judgment reversed and complaint dismissed as to defendant, the Equity Gas Works Construction Company, with costs.
All concur, except O'BRIEN, J., taking no part.
Judgment accordingly.