Misc.] Supreme Court, April, 1921. continuing upon the completion of the bridge, and gave to the said Williamsburg bridge commissioners, after completion of the bridge, the same powers as were exercised by the trustees of the old Brooklyn bridge over the said old Brooklyn bridge, and that the powers so delegated were the powers exercised by the Brooklyn bridge trustees over the Brooklyn bridge itself as of the date of the passage of the act, namely, May 13, 1896. A pertinent inquiry at this time therefore is, what powers did the trustees of the old Brooklyn bridge on May 13, 1896, exercise over the old Brooklyn bridge? The answer to this query is found in chapter 300 of the Laws of 1875, section 7: "The said trustees shall have power to fix the rates of toll for persons, vehicles and animals of every kind and description passing over the said bridge; and may operate and authorize to be operated, a railroad or railroads over said bridge, and fix the fare to be paid by any passenger on any railroad operated by them." The powers thus devolved on the trustees of the Brooklyn bridge were continued by the Consolidation Act (Laws of 1882, chap. 410, § 1980). The original charter of the city of New York, passed in 1897, being Laws of 1897, chapter 378, section 595, provides in substance as follows: The commissioner of bridges shall have cognizance and control of the management and maintenance of the New York and Brooklyn bridge, of the operation of the railroad on the New York and Brooklyn bridge, and of the construction, repair, maintenance and management of all other bridges except "The East River Bridge " (that is, the Williamsburg bridge). And the reason for this exception was that the Williamsburg bridge commission was still in existence and the Williamsburg bridge was still in the course of construction. The charter was amended in 1901, and by section 595 Supreme Court, April, 1921. [Vol. 115. the commissioner of bridges still had the management and maintenance of the New York and Brooklyn bridge and had control" of the operation of the railroad on the New York and Brooklyn bridge." And in subdivision 5 "the bridge commissioner was given, in general terms, the management of all other bridges." This is followed by an express statement that the Williamsburg bridge commission" is hereby abolished, and all its powers and duties are hereby devolved upon the Commissioner of Bridges of the City of New York." From the foregoing it seems reasonably clear that the Williamsburg bridge commission had the power to operate and authorize to be operated a railroad over the Williamsburg bridge, and that this power has been duly transferred to the commissioner of bridges of the city of New York, and by chapter 528 of the Laws of 1916 to the commis-. sioner of plant and structures. The act of the legislature, cited by the defendants, namely, chapter 663 of the Laws of 1897, regulating the carriage of passengers across the New York and Brooklyn bridge, has not been overlooked. That, in effect, stated that the trustees of the Brooklyn bridge might continue to maintain and "to operate the present railroad on said bridge." This act does not limit the power already delegated the Williamsburg bridge commission, which in turn is devolved upon the present commissioner of plant and structures of the city of New York. It is therefore concluded that the city of New York, through its commissioner of plant and structures, has an existing right to operate a railroad on the Williamsburg bridge. While this express question has not been before the court, the analogous question as to whether the bridge commissioner could make a contract for the operation of street surface cars over the Williamsburg bridge has been decided. In the Misc.] Supreme Court, April, 1921. case of Schinzel v. Best, 45 Misc. Rep. 455, it was held that such a contract was a valid one, and that the bridge commissioner had full power to make such contract. And while any expressions in the opinion as to the powers to operate a railroad are dicta merely and not binding upon the court, still they are persuasive in their argument and were adopted by the Appellate Division in confirming the judgment on the opinion of Judge Maddox at Special Term (109 App. Div. 917). As to the case of Dilluvio v. City of New York, 73 Misc. Rep. 122, that action involved the power of the city to operate a railroad over the Queensboro bridge, and the decision in that case was undoubtedly correct, holding that the city had no such power. But there is no such devolution of powers found in the statutes with reference to the Queensboro bridge as have been cited in support of such power in relation to the Williamsburg bridge. There is, therefore, the resulting anomaly that the city has the power to operate a railroad on the Brooklyn bridge and upon the Williamsburg bridge, but no power to operate a railroad on the Queensboro bridge. The next question presented is "Must the city, with the power to operate a railroad, first obtain a certificate of convenience and necessity, as required by section 9 of the Railroad Law, or the permission and approval required by section 53 of the Public Service Commissions Law?" There can be no doubt that if the city of New York embarks in the railroad business that it must do so subject to the limitations of the legislature as found in the Railroad Law. The city becomes a common carrier and has no greater rights, nor can it escape any liability of a common carrier. It has been held that the grant of a street railroad franchise carries with it by implication the right to maintain sidings and switches and that a Supreme Court, April, 1921. [Vol. 115. spur necessary to enable a railroad to connect with a storehouse for its cars without which the line could not be operated at all was also a right incident to the grant. See Brooklyn Heights R. R. Co. v. City of Brooklyn, 152 N. Y. 244; Brooklyn Heights R. R. Co. v. Steers, 213 id. 76, 81. It, therefore, follows that the legislature having conferred the right to operate a railroad over the Williamsburg bridge to the city of New York, there being no place on the bridge for the storage of cars, that as a necessary implication to this grant the city may erect a barn underneath the structure of the bridge and by necessary trackage connect the existing bridge tracks with the barn. If in the course of making this connection it is necessary to cross over the tracks of the defendant the law allows such crossing over. In the case of Village of Ft. Edward v. Hud-. son Valley R. R. Co., 192 N. Y. 139, it was held that a certificate under section 53 of the Public Service Commissions Law is not necessary where a railroad is constructing a crossing under section 22 of the Railroad Law. It is concluded, therefore, that no such certificate is necessary in this case and that the public service commission has correctly passed upon the proposition in the instant case when application was made to it. There remains, then, solely the question as to whether the legislature has the power to grant to a municipal corporation the right to operate a railroad. Such a grant, it is claimed, is in violation of article VIII, section 10, of the state Constitution, which, among other things, provides: "Nor shall any city be allowed to incur any indebtedness except for city purposes." This question was considered by the Court of Appeals in the case of Sun Printing & Publishing Co. v. City of New York, 152 N. Y. 257. There in substance it was held that a subway was a subterra Misc.] Supreme Court, April, 1921. nean highway. If a subway is a subterranean highway it seems equally clear that a bridge is an aerial highway. Moreover, there is an express legislative declaration that the Williamsburg bridge is a public highway. With the proposed policy of the commissioner of plant and structures and the city authorities in operating this railroad the court has nothing to do. It seems fairly apparent at this time that the immediate result of operating the railroad over the Williamsburg bridge by the city of New York will be to cause the discontinuance of all existing service of the various trolley lines now operating over said bridge. The commissioner of plant and structures thinks that this is a result to be attained and that much good will flow to the public by the operation of the city line. The existing trolley railroads contend that they cannot compete with the city at a cut price contemplated by the city, which, by the resolution of the city authorities, is limited to cost plus sinking fund charge. If the results in the future are that the public comfort and convenience are greatly increased, clearly the credit for such increase of comfort should be accorded to the city authorities. It is equally apparent that if the result is an increase of present discomfort and confusion, so that we have confusion worse confounded, then the blame for this result can readily be traced. This is not a function of the court. This is purely an executive function and the responsibility lies upon the officers of the city and not upon the court. An order may be entered appointing three commissioners under the statute. Ordered accordingly. |