Supreme Court, April, 1921. [Vol. 115. of compensation, if any, to be awarded the defendant as a condition of constructing a cross-over on the defendant's railroad tracks, and to determine the line or lines, grade or grades, points or manner of such connection, as provided in said statute. The city owns the Williamsburg bridge and owns the railroad tracks constructed upon it. The Williamsburg bridge was opened in 1904, and since that time surface railroad companies of both Brooklyn and Manhattan have operated the local and through service over the city's railroad tracks on said bridge. The fare on the local lines operated over the said bridge is at present three tickets for five cents and upon the cars operating a through service from points in Brooklyn to Manhattan or vice versa no extra fare is collected from passengers. Originally there were contracts entered into between the city and the operating railroad companies which have since been terminated, and the railroad companies now operating over said bridge are doing so as licensees only, subject to being ejected by the city without notice at any time, and, on the other hand, the railroads are free to abandon the bridge service at any time, they having no franchise on the bridge and being subject to no contractual liability to operate over the bridge. On April 27, 1920, the board of aldermen adopted an ordinance, which was duly approved by the mayor of the city of New York on May 3, 1920, which in effect said that after the termination of any existing right no permit should be granted to or any contract entered into with any person or corporation allowing such person to operate cars on the tracks owned by the city of New York over the Williamsburg bridge and the approaches on the route known as the bridge local service and at that time operated by the Bridge Operating Company. It was further declared in said ordinance that immediately after the Misc.] Supreme Court, April, 1921. termination of then existing permits all the said transportation service over the said bridge local route should be operated directly by the city of New York and the department of plant and structures was designated as the agency for the city in the operation of such service. It was further declared as the policy of the city authorities that the fare to be charged for passage on the cars so to be operated by the city should" in no case be fixed at a sum greater than the amount necessary to cover the cost of operation of such service, plus the necessary reserve for sinking funds and depreciation." By subsequent ordinances the commissioner of plant and structures was authorized, after provision for funds had been made, to enter into contracts for the construction of a barn and for the laying of rails from the Brooklyn plaza of the Williamsburg bridge to the barn, and for the purchase of cars, and also agreements for supplying the electrical current; all in connection with the operation of the local line on the Williamsburg bridge, with a limitation that the amount involved should not exceed $300,000. Thereafter the comptroller of the city of New York was authorized to issue corporate stock in amount not exceeding $300,000, to be applied for the purchase of trolley cars, extra parts, constructing new car barn, and other necessary equipment for the purpose of operating a local trolley line on the Williamsburg bridge. Subsequently the board of estimate amended a preceding resolution on September 24, 1920, and in this resolution declared that the proposed improvement was determined to have substantial present or prospective earning power. The moving papers show that the city purchased cars and that it is now constructing a car barn under the structure of the Williamsburg bridge between Bedford avenue and Berry street, and that it is constructing a single track Supreme Court, April, 1921. [Vol. 115. along the side of the said bridge for the purpose of connecting the city owned track on the bridge with the city barn now in construction. To do this it will be necessary, it is alleged, to lay the city's tracks across the tracks of the defendant company, located on Driggs avenue and Bedford avenue, and which streets pass under the existing structure of the Williamsburg bridge. It is further alleged that the parties cannot agree upon the amount of compensation to be paid for the crossing or upon the line or lines, grade or grades, points or manner of such crossings or intersections. On the part of the defendant it is alleged (1) that neither the city nor the commissioner of plant and structures has any franchise or power or authority to operate a railroad over the Williamsburg bridge; (2) that the city has not, nor has Mr. Whalen, commissioner of plant and structures, obtained a certificate of convenience and necessity, required by section 9 of the Railroad Law, or the permission and approval required by section 53 of the Public Service Commissions Law, and, finally, it is contended by the defendant that any legislative delegation of power to the city to operate a railroad would be and is unconstitutional because of the prohibition contained in the state Constitution in article VIII, section 10. Taking up these positions in their order, we first discuss the power of the city to operate a railroad on the Williamsburg bridge. The construction of the Williamsburg bridge was authorized by an act of the legislature which became a law on May 27, 1895. This act provided for the appointment of three commissioners by the mayor of the then city of New York and three commissioners by the mayor of the then city of Brooklyn, which six commissioners with the respective mayors of both cities constituted a commission for the purpose of constructing the Williamsburg bridge. These commissioners Misc.] Supreme Court, April, 1921. were authorized to prepare a plan for the bridge, were given powers to take over property by eminent. domain, and the right to acquire the land under water also. The act also prescribed that if any corporation should possess a valid charter with authority to construct a bridge such as was contemplated by the provisions of this act, that the commissioners, with the express consent of the mayors and comptrollers of the respective cities, might purchase said charter at a price to be mutually agreed upon, and thereby to take or extinguish any existing right of such corporation to operate any railroad across said bridge. But nothing in this act contained shall prevent said commissioners, in their discretion, from contracting with any corporation to operate a railroad across said bridge if said commissioners shall determine it to be in the public interest. Section 7 of said act then prescribed as follows: "When the said bridge shall be completed the said commissioners shall make their final report. and they shall file all their records and papers in the office of the trustees of the New York and Brooklyn bridge (the old Brooklyn bridge). The said bridge shall thereupon be and become a public highway for the purpose of rendering travel between the cities of New York and Brooklyn safe and certain at all times, and the care, management and control thereof shall be vested in the trustees of the New York and Brooklyn bridge, who shall possess in relation thereto like powers as are vested in them in relation to the said New York and Brooklyn bridge." It will also be observed that these powers were not to be exercised by the trustees of the Brooklyn bridge until the completion of the Williamsburg bridge. Subsequently, in 1896, section 7, above quoted, was amended by chapter 612 of the Laws of 1896, and the main change is found in the following words: "The said Supreme Court, April, 1921. [Vol. 115. bridge shall thereupon be and become a public highway for the purpose of rendering travel between the cities of New York and Brooklyn safe and certain at all times, and the care, management and control thereof shall be vested in the said commissioners and their successors, who shall possess in relation thereto like powers as are at the time of the passage of this act vested in the trustees of the New York and Brooklyn bridge in relation to the said New York and Brooklyn bridge, unless the legislature shall otherwise provide therefor." Early in the year 1896 a taypayer's action was commenced by William Gordon against the then mayor of the city of New York and others to annul a certain contract whereby the commissioners of the Williamsburg bridge agreed to purchase a franchise possessed by the East River Bridge Company. In the course of the opinion in this case the Appellate Division of this department (3 App. Div. 395) held that a clause in the contract did not purport to grant the use of the tracks on the bridge to any corporation; that it related to the plan and construction of the bridge solely and had no relation to the operation or use of the railroad tracks after the bridge was completed. And it was further held that section 5 of chapter 789 of the Laws of 1895 grants to the commissioners the power to contract with any corporation to operate a railroad across said bridge, and that such power, if exercised at all, must be exercised during the period of construction, because, under section 7 of the act just quoted, upon the completion of the bridge the management and control became vested in the trustees of the old Brooklyn bridge. The legal effect then of this amendatory act of chapter 612, Laws of 1896, was to vest in the Williamsburg bridge commissioners powers not only during the construction of the bridge, but also powers |