MAYOR, ETC., OF NEW YORK v. M.R. CO

PECKHAM, J.

The foundation of the plaintiff's claim in this action rests upon section 9 of the act of 1867.

That section provides for the payment of five per cent of the net income of the railroad company into the treasury of the city "in such manner as the legislature may hereafter direct, as a compensation to the corporation thereof, for the use of the streets thereof." The act provided for the construction in the first instance of an experimental elevated railway to be operated exclusively by means of propelling cables attached to stationary engines, for a distance of half a mile along the southern extremity of Greenwich street. The corporation was given, by the tenth section of the act, one year in which to construct the experimental section, and after its completion it was to be inspected by the commissioners provided for in the act, and if they approved it was then to be built within five years of that time along Greenwich street to Ninth avenue, and along that avenue or streets west of it to the Harlem river. It is plain, therefore, that there was no idea that the railroad would be ready for business or put in operation prior to another annual session of the legislature. Indeed the probabilities for even a later period would seem to have been very strong. It follows that it was not important to state in the statute then passed when or in what manner the five per cent should be paid by the corporation then empowered to go on and construct within the year an experimental section of railroad. That detail might safely be left for future legislation. But as the corporation was given by the act various powers and privileges, it was certainly appropriate, even though not necessary, to state the burdens or conditions which were to be imposed upon the corporation in return. If not stated at that time, there might be given an improper force to the argument against the imposition of any other or greater burdens in the future than were contained in the act of 1867. Hence, the statement of the condition as to the five per cent. The burden was plainly and in terms imposed, but the time and manner of payment were just as plainly stated to be as the legislature should thereafter direct. Why the manner of payment should have been deferred for future direction by the legislature is a question not now easily answered; yet the fact that it is so deferred by the act of 1867 is as definite and clear as language can make it. The language is so plain and peremptory that unless it is wholly rejected as meaningless, the only effect that can be given to it is to put off the immediate obligation to pay until the legislature at some future time gave directions upon the subject.

It is a waste of time to cite the general canons of construction which obtain in the discharge of the judicial duty to construe an act of the legislature. They are familiar to us all and they result in the question, what is the real meaning of the enacting body? That meaning is to be first sought in the language used, and if that be plain, unambiguous and imperative, there is nothing left for the courts other than to obey the directions of the statute as manifested by its language. There is nothing necessarily unconstitutional or otherwise illegal even in an absurd statute, although a proper respect for the legislature will prevent any court from lightly imputing absurdity to any legislative enactment. Effect must be given to the whole of the language used, if it be plain and do not lead to anything manifestly so unjust or absurd that it cannot be assumed the legislature really intended such result. This statute, as we construe its plain language, contains nothing that is either absurd or unjust. In this case the counsel for the city claims that the language providing that the five per cent shall be paid in such manner as the legislature may thereafter direct, is unimportant and the corporation may be required to pay without such subsequent direction. It is said that the city has and always has had ample provision by general laws for the payment, receipt and disbursement of all its revenues and under proper safeguards and securities, and that this five per cent could, ever since the amount was imposed by the act of 1867, have been properly collected and disbursed under those laws. I have no doubt of the existence of laws of this nature as claimed by the learned counsel, and if the statute of 1867 had provided that this five per cent should be paid to the city in the same manner, at the same time and be disbursed for the same purposes that its other general revenues were, the railroad corporation would have been liable and obliged so to pay that sum. But these facts must be supposed to have been within the knowledge of the legislature when it passed this act, and it is plain that the facts did not furnish to it reasons appropriate for enacting that the payments should be made in the manner so provided by those laws. On the contrary, the legislature, by enacting another provision in regard to the manner of payment, must be held to have distinctly refused to provide for a payment in accordance with existing provisions. Instead of that, it says the payment shall be made in the manner in which the legislature may thereafter direct. If nothing further were done or directed, and the company should have organized and built and operated its road and refused to pay the five per cent, it is quite clear to me that the company could not be placed in default because of such refusal, and that no action could be maintained against it to recover such amount until the legislature had given directions upon the subject. When the corporation, in the course of operating its road, should receive a fare, the city would not thereby have a title to five per cent thereof, nor would such five per cent be the property of the city while it remained in the treasury of the railroad company. The five per cent which the railroad must pay is that proportion of the net income of the corporation, and what that sum may be is, of course, the result of an inquiry into expenses, which must result in the further inquiry as to what are expenses or other proper deductions from the main sum before the net income is arrived at. This inquiry is absolutely necessary, and the point is how often and upon what actual basis shall it be made. It is wholly unlike the case of Mayor, etc., v. Twenty-third Street Railway Company ( 113 N.Y. 311), which provided for the payment of a percentage of the gross receipts of the company.

In any view that may be taken, I am unable to construe this act of 1867 other than according to its plain meaning, and then it appears that as to the manner and time of payment of this percentage, the legislature has said that it should be as it should thereafter direct.

In this condition of affairs the legislature, by chapter 855 of the Laws of 1868, passed an act by the second section of which it is conceded that directions were given for the manner (and time) of the payment of this five per cent on the net income of the corporation. This act has been held unconstitutional by the courts below because passed in violation of section 16 of article 3 of the Constitution, which provides that no private or local bill shall be passed which shall embrace more than one subject and that shall be expressed in its title. In the Matter of New York Elevated Railroad Company ( 70 N.Y. 327, 336) EARL, J., referred to this act and, while believing the objection to it to be well founded, assumed without deciding that it was unconstitutional and then quoted the act of 1875 (Chapter 595) as curing any defect which the company might otherwise have suffered from because of this invalidity of the 1868 statute.

It was not held that the act of 1875 validated the unconstitutional act of 1868, or otherwise infused life into it. It was simply held that the act of 1875 by force of its own provisions supplied any defect which existed by reason of the invalidity of that of 1868.

We think the courts below were right in holding that the act of 1868 was invalid for the reason that it violated the constitutional provision already referred to. The whole act is so inseparable, its different parts are so interwoven and dependent one upon the other that the attempt to uphold any portion after striking out the other would be a hopeless undertaking. It cannot be supposed that one part would have been enacted with the other portion left out, and the invalidity of a portion carries down with it the balance of the act. In truth the first part of the title of the act is insufficient to express any subject whatever, as has been already held. ( People v. Hills, 35 N.Y. 449; People ex rel. v. Briggs, 50 id. 553, 561.) The second portion of the title, that which relates to the application of revenue in the county of New York, is misleading and wholly insufficient as an expression of the subject of the act. It gives a very false idea as to the subject and nature of the legislation actually embodied in the bill. Taking the title in detail and as a whole, it appears to us to be a plain violation of the Constitution.

Standing alone we are compelled to hold that the directions given by the Legislature, in an act which is wholly unconstitutional, cannot be referred to as the directions called for by the act of 1867. There are, however, other facts to be yet alluded to. It would seem that the corporation named in the act of 1868 proceeded to avail itself of the extended time given it thereby, in which to construct the experimental section provided for in the third section of the act of 1867, and after such experimental section had been approved by the commissioners appointed under that act (1867), which approval was in July, 1868, the company further proceeded towards the construction of the railroad along the route provided for in section 4 of the act of 1867. But the construction of the railroad was not, as to motor power, a compliance with section 2 of the act of 1867, inasmuch as, by the plan adopted and approved by the commissioners above mentioned, the railroad was not to be operated exclusively or at all by means of propelling cables attached to stationary engines, but, on the contrary, the plan actually adopted and carried out was that which was approved by the above commissioners under the provisions of section 1 of the act of 1868. That act permitted the company to adopt any other form of motor which might be approved by the commissioners appointed under the act of 1867, and the form actually adopted was carried out in the construction of the road by the company; and this construction has been permitted by the state and the city authorities, all parties then assuming the validity of the act. The company also availed itself of the permission to change its name, granted by the fifth section of the act of 1868, and in July, 1868, it filed for that purpose supplementary articles of association in the office of the secretary of state. It also, and on or about September 1, 1868, made and executed the bond of $100,000, provided for in section 3 of the same act, and on or about September 18, 1868, it executed the bond provided for in section 11 of the act of 1867.

Prior to 1871 the corporation, by two several mortgages, mortgaged its property, franchises and rights for the purpose of constructing and equipping the railroad from the Battery along Greenwich street and Ninth avenue to Thirtieth street. These mortgages were duly foreclosed, and by virtue of the sale made under and pursuant to the judgments of foreclosure entered in August and September, 1871, and the conveyances and transfers duly made pursuant thereto, the New York Elevated Railroad Company acquired all the rights, powers, privileges and franchises which had belonged to or were vested in and held and enjoyed by the companies described in those judgments and in the acts of 1867 and 1868. The New York Elevated Railroad Company had been incorporated under the General Railroad Act of 1850 and the several acts amendatory thereof, for the purpose of operating, etc., a railroad from the Battery through the westerly part of the city to Westchester county and thence to Putnam county, and its articles of association were filed in the office of the secretary of state about October 27, 1871. Subsequent to the conveyances just mentioned the New York Elevated Railroad Company continued the construction of the railroad from the south end of Greenwich street along through the same to Ninth avenue, and along Ninth avenue to Sixty-first street with the acquiescence of the state and city authorities, and such railroad was in operation as an existing elevated railroad prior to the passage of either of the acts of 1875, hereafter mentioned.

Prior to the time when the defendant took possession of the Ninth avenue line (in 1879), and while the road was operated by the other companies, they did not question the obligation to pay this five per cent, but, on the contrary, it was paid quarterly to the city. In 1875 the act (Chap. 595) was passed. The New York Elevated Company was by the first section of the act confirmed in the possession and enjoyment of all the rights, powers, privileges and franchises as fully and at large as they were granted in and by the acts of 1867 and 1868 to the predecessor company. The fourth section gave the company power to adopt certain alterations in the motor power, as the commissioners under the act of 1867 should authorize or approve. By the sixth section of the act of 1875, the company was empowered to demand and receive certain rates of fare from passengers carried on its railroad, and with the assent required by the third section of the act of 1868, a sum not exceeding two cents for each mile or fractional part thereof over five miles. The New York Elevated continued the payment of the five per cent after this act of 1875 was passed and down to the time of the execution, in 1879, of the lease by it to the defendant, and the defendant, during all the time of the existence of such lease, paid to the city treasury what it alleged to be five per cent on the rental of the New York Elevated Company. After the surrender of the old and the execution of a new lease, and up to the commencement of this action, the defendant has paid what it claimed was five per cent of the amount of the rent secured by the lease.

The question is whether, by virtue of these various actions of defendant and its predecessors, together with the acceptance of subsequent legislation on the subject, based upon the assumed validity of the act of 1868, there has not been a waiver of the defense that the act was unconstitutional. Persons, or corporations even, may waive in some matters, and upon some occasions, a constitutional or statutory provision in their favor. ( Embury v. Conner, 3 N.Y. 511; In re Application of Cooper, 93 id. 507-512; In re Petition of R.R. Co., 98 id. 447-453; Sentenis v. Ladew, 140 id. 463-466.) In the last-cited case it is said: "A party may waive a rule of law, or a statute, or even a constitutional provision, enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public morals are involved, and having once done so he cannot subsequently invoke its protection." Although the provision as to a local act containing but one subject, which shall be expressed in its title, is of a public nature and was placed in the Constitution for the purpose of preventing surprises as to the object and purpose of any proposed legislation, yet when an act has been so passed, and its enactments bear upon the private rights of an individual, the constitutional provision then becomes as to him, one which is, within the meaning of the expression, enacted for his benefit, and it is then a matter which such individual may, as to his private rights, waive the benefit of, and consent to perform or submit to the requirements of the act, the same as if the constitutional provision had not been violated. And when once such waiver has been made and such consent been given, the party so waiving and consenting is forever concluded thereby. Especially should this be so where the party takes benefits granted by the act. But for the defect in the title of the act of 1868 it must be conceded that a sufficient direction as to the manner of payment of the five per cent was given by that act. The burden of payment had been already placed upon the company by the act of 1867, and it was therein declared that it should pay this per cent of its income to the city as a consideration for the use of the streets. The time and manner of such payment were left for future legislation, and when the act of 1868 gave these directions we see no reason, in the nature of the subject, why the company could not waive the defense that the legislation was void and proceed to recognize and obey it to the same extent as if it were valid. The company availed itself of the extension of time granted it for the construction of its road under the first section of the act and changed its motor power and constructed its road as therein permitted and under the acquiescence of all the public authorities, and it also changed its corporate name by virtue of another section of the act, and it or its successor paid the five per cent of its net income as provided for in the second section of the same act. Is not this a waiver of any defense to the further payment of the percentage founded upon the unconstitutionality of the enactment? What is it other than a recognition by the company of the sufficiency of the directions and a final and full consent to recognize the obligation to pay thereafter and to put aside and waive the defense that the legislature had not yet spoken as provided for in the act of 1867 ? Under these circumstances it ought to be held estopped from setting up thereafter a defense grounded upon the invalidity of an act by virtue of some provisions of which and by the consent and acquiescence of all the public authorities, state and city, it had proceeded to change its motor power, construct its road and change its name. Further than this, the predecessor of the defendant accepts the act (Chap. 595 of the Laws of 1875) in which the act of 1868 is referred to as if it were a valid enactment, and while availing itself of the provisions of this act of 1875, the defendant's predecessor continues payment of the percentage in the time and manner provided in the act of 1868. All the foregoing conduct must be regarded as a waiver of a constitutional provision which would otherwise operate, if insisted upon, in favor of defendant, and it must be held that the defendant has duly consented to the binding force of the directions of the act.

It is said that if the defendant be held to the waiver of the defense of invalidity as to the act of 1868, it must be granted the rights as well as be saddled with the burdens of the act. If this be assumed as a correct statement it will be difficult to point out any rights belonging to the railroad company which are not now assured to it outside of that act. The rights or privileges spoken of in the first section of the act of 1868 have been practically covered and provided for by the act of 1875, and if without the benefit of the act of 1868 it might have been urged prior to the passage of the act of 1875 that the company had forfeited its right to build the road because of the time limit in the act of 1867, and was also building it for use by an unauthorized motor, it is clear that the act of 1875 by its provisions recognizes and validates the right to build the road and to use such motor, and it gives further directions in regard to it. It is the second section of the act of 1868 which has been complied with by defendant and which provides for the payment of the percentage. It is true it is also provided in the following section that the rates of fare theretofore or therein legalized are not to be changed without the mutual consent of the parties, and it would appear that the rates never have been changed without such consent. There is nothing else in the act which the defendant or its predecessors would have to depend upon for their rights or privileges. The consideration, as stated in the third section of the act of 1868 for the payment of the five per cent, is the use of the streets by the railroad as provided by law. The ninth section of the act of 1867 stated the same consideration for the exaction. In neither act did it appear that the compensation was to be for the use of the streets as against any one but the city, and the eleventh section of the act of 1867 provided otherwise. If all rights and privileges spoken of in the act of 1868 were necessarily brought into full life and vigor by holding that defendant had waived a defense founded upon the invalidity of that act, there would be no valuable franchise thereby renovated and brought into active existence for the benefit of the defendant. It is not necessary, however, to say what the effect of our holding may be upon the rest of the act.

The burden of paying the five per cent was imposed upon the corporation by the act of 1867, and that obligation has been a valid and subsisting one ever since the passage of that act. It was not a creation of the act of 1868, for that act simply gave formal directions in regard to the manner in which a previously existing legal obligation should be discharged. We hold now that the defendant and its predecessors, by reason of their acts of payment and the acceptance of some of the privileges conferred by the act of 1868, and also by reason of its accepting the provisions in its favor already spoken of as given by the act of 1875, and the payments of the moneys up to the time of the commencement of this action, have waived and are estopped from setting up any objection that might otherwise have been offered to the provisions of the second section of the act of 1868, so far as they provide for the manner and the time of the payments of the five per cent imposed upon the defendant's predecessor as a burden by the ninth section of the act of 1867. This waiver having once been made, operates effectually for the future as well as for the past. It is an answer to the alleged illegality of the statute when such illegality is set up as a defense to an action to enforce payment of the percentage in the manner prescribed in such act. It is just as potent in such case as it would be if interposed to a claim to recover back moneys already and actually paid according to the terms of the act.

Nor can it be said that the payments can operate only as a recognition of liability to the extent that they were made. The liability is to pay a sum of five per cent of the net income, and the defendant recognizing its liability has paid a sum which it alleges satisfies that requirement. The plaintiff denies it, and the question whether the payment has or has not equaled in fact what each party assumed was the real legal liability may be hereafter tried out between them.

On this branch of the case our conclusion is that the defendant rests under an obligation to pay into the city treasury a sum of five per cent of the net income of the railway of the defendant on the Ninth Avenue line, from Greenwich street up to Sixty-first street, and from the latter street to Eighty-third street, a sum of one-half of five per cent. The accounting will show how much of this sum has been in fact paid since 1880.

Second. The next inquiry is as to the liability of the defendant to pay the percentage upon the passenger traffic on its so-called Third Avenue line. I shall assume its own liability if it ever existed on the part of its predecessor, for it does not seem to be controverted that the defendant succeeds to such liabilities. The answer to the question depends upon the construction of the latter part of section 36 of the Rapid Transit Act. (Chap. 606 of Laws of 1875.) Prior to entering upon its discussion it will be well to state the rule which should obtain in the consideration of the statute. I do not think it is a case where a construction should be adopted that is most strongly adverse to the company assuming to build and operate its road under the provisions of the act, or any section thereof, nor is the public to be entitled as of course to the benefit of any doubt as to the true construction of the language to be found in the statute. Where privileges are granted or exemptions conferred by the legislature, in the shape of charters or grants to third parties, the grantees are to take only what is clearly granted, and they shall take nothing by implication which is not necessary for the full and fair enjoyment of the thing granted.

The principle is quite well settled, and the only subject of discussion is whether the particular case comes within it. ( Langdon v. Mayor of N.Y., 93 N.Y. 129, 144; Mayor of N.Y. v. Dry Dock, etc., R. Co., 47 Hun, 199; S.C. on appeal, 112 N.Y. 137.)

When the Rapid Transit Act of 1875 was passed the answer to the question whether the plan therein provided for would prove a success was in great doubt. Certain privileges and franchises were provided to be given companies organized or operating a road under the act, and in return certain conditions and burdens were exacted from and imposed upon such companies. The persons who might be found willing to invest capital in the project might, in one sense, be termed "adventurers," because they would be investing their money in a scheme the result of which was then most doubtful, and which might leave them with their capital wasted, and with a costly and at the same time worthless structure on their hands. It is safe to say if at that time the interest of abutting owners had been understood to be as it has been since decided, not a railway would have been built under the provisions of this act of 1875. It is matter of public history that at this time capitalists were timid as to venturing their money in what seemed to be a somewhat visionary scheme. Some reasonable prospect of possible future profits to arise from the experiment would necessarily have to be presented before the risk would be taken. The above act was the means of testing by practical experiment the question of the feasibility of elevated railways, and the possibility of their becoming a paying investment while at the same time furnishing a satisfactory solution of the problem of rapid transit through the city.

The roads have been built under the provisions of the act, and subsequent to their building (many think in consequence thereof) the upper part of the city has grown enormously and has, in truth, become transformed from vacant swamps to streets bounded by rows of costly buildings. The roads have certainly shared in this prosperity, but the burden and effect of payment for the interests of abutting owners have been, still are and always must be felt most powerfully. The large amounts of these payments make a very strong drain upon the financial ability of the companies. That they are able to go on under the obligation and yet earn enough to make the property a valuable one is surely not a cause of regret, nor should it furnish a reason for treating the companies other than in a fair spirit. Looking at the facts as they existed in 1875 we think the act should be fairly construed like any other grant made by the state upon consideration, and the language of the act should not be twisted out of its fair meaning, or any violent and strained construction adopted for the purpose of holding the defendant to the payment of this percentage.

The following is the text of the thirty-sixth section of the Rapid Transit Act, under which mainly the question arises:

"§ 36. Whenever the route or routes determined upon by said commissioners coincide with the route or routes covered by the charter of an existing corporation, formed for the purpose provided for by this act, provided that said corporation has not forfeited its charter or failed to comply with the provisions thereof requiring the construction of a road or roads within the time prescribed by the charter, such corporation shall have the like power to construct and operate such railway or railways upon fulfillment of the requirements and conditions imposed by said commissioners as a corporation specially formed under this act; and the said commissioners may fix and determine the route or routes by which any elevated steam railway or railways, now in actual operation, may connect with other steam railways or the depots thereof, or with steam ferries, upon fulfillment by such elevated steam railway company, so far as it relates to such connection, of such of the requirements and conditions imposed by said commissioners, under section four of this act, as are necessary to be fulfilled in such cases, under section eighteen of article three of the Constitution of this state, and such connecting elevated railway shall, in such case, possess all the powers conferred by section twenty-six of this act; and when any connecting route or routes shall be so designated such elevated railway company may construct such connection, with all the rights and with like effect as though the same had been a part of the original route of such railway."

This act contemplates three conditions under which an elevated railroad might be built: (1) A company might be formed pursuant to its provisions, and upon complying therewith it might proceed to build a road. (2) The commissioners provided for in the act might determine upon certain routes, and if they coincided with those covered by the charter of an existing corporation, then such existing corporation shall have the power to construct the road over those routes as if it had been specially founded under the act, upon fulfilling the requirements and conditions of the commissioners. (3) The commissioners might fix upon and determine the route by which any existing elevated railway then in actual operation might connect with other steam railways, etc. The provision for building under the second above-named condition in fact only applied to the Metropolitan, formerly the Gilbert Elevated railroad. That company had its charter, and instead of forming a new company under the general provisions of the act, the Metropolitan came in under the thirty-sixth section as a company having a coincident route. It is conceded that this company thus coming in under that section to operate a substantially rival road on the east portion of the city, was not, by this statute, bound to pay any percentage of its income to the city. It was to be subject to the requirements and conditions of the commissioners, but the statute provided for no direct burden of this kind, and none such has ever been imposed upon any other elevated railroad in New York.

The New York Elevated Company applied to the commissioners pursuant to the provisions of this same thirty-sixth section, and those commissioners exacted from the company as a condition precedent to their laying out any connecting routes for that company under this section, an agreement and consent which is fully set forth in the record. Among the conditions therein imposed was the time within which the construction should be commenced and completed, and there was also one relating to the rates of fare which it should charge and in regard to the running of so-called commission trains during certain hours. These rates of fare were, in many respects, lower than those which the West Side and Yonkers road was authorized to charge and receive for the same service. Another condition imposed was that the company should pay such proportion of the expenses of the board of commissioners as the board might designate. The conditions having been assented to and an agreement signed by the company, the commissioners laid out the routes and transmitted to the common council their report of the conditions obtained from the company, and the common council, on September 7, 1875, duly ratified the report and gave its consent to the building of the road upon the conditions named in the agreement. Since the time when the legislature had granted for a consideration expressed in the statute of 1867 the use of the streets of the city for railroad purposes, an amendment to the Constitution had been adopted which rendered the consent of the local authorities and also that of the owners of one-half in value of the property abutting on the streets, necessary before railroad tracks could be laid down in the streets of a city, or in lieu of the consent of the property owners, the favorable report of a commission to be appointed by the General Term of the Supreme Court and a confirmation of such report by the court. The abutting owners in this case did not consent, and a commission was appointed as above provided for, and its report was duly confirmed and the road was built.

The claim of the plaintiff rests upon the last few words of the thirty-sixth section, viz.: "And when any connecting route or routes shall be so designated, such elevated railway company may construct such connection with all the rights and with like effect as though the same had been a part of the original route of such railway."

The argument is that the language bestows the right to build just the same as if it were a part of the original route, and if the connecting routes had in fact been part of the original route of the railroad company and built under the power granted by its charter or special laws, the road would have been also built subject to all the burdens imposed under the same authority, and among them the obligation to pay the percentage.

I do not think the plaintiff's claim is well founded. In the first place it seems to me to be a most forced and unnatural meaning to give these words, something not called for, but, on the contrary, plainly at war with the immediate context. The right to build the connecting routes is plainly derived solely from this thirty-sixth section. The language there used is a clear grant of power thus to build upon fulfilling the conditions mentioned. The section gives to the existing company, after fulfilling the stated requirements, all the powers conferred by section 26 of the same act, and then grants in particular language the power to construct such connecting road with all the rights and with like effect as though the same had been a part of the original route of such railway. It is the power, not the burdens, with which this portion of the statute is dealing. This is the language of an affirmative grant of power, and is not such fit and appropriate language as would ordinarily be used to express the idea that burdens and conditions were to be thereby imposed not at all connected with the power to construct. It was in terms authorizing the construction on the routes fixed. The language did not mean that the routes were to be constructed under the powers given by the old acts relating to the West Side and subject to the conditions therein imposed. It meant that the company should have the same power to build the connecting routes that it had had to build its old ones. It is said the words have no useful office to perform if the plaintiff's construction be not given them, because by force of the language of the section granting to the company, upon complying with the conditions, all the powers conferred in section 26 of the act, the company would have, under that grant, full power to construct its road. I think the power to build is to be found in that section, but the draughtsman, by simply referring to the twenty-sixth section for the powers to be possessed by the company, did not state in terms in the thirty-sixth section what those powers were, and it would be quite natural, under such circumstances, to state explicitly and in so many words that the company should specially have power to build the road with all the rights, etc., as therein mentioned. It was further assurance, though clothed in different language that in so building the connecting road the company would be regarded as building it the same as if it had had direct authority to build under its original route. The language does not mean that the company was to build upon the connecting routes under the same obligations and subject to the same burdens as if its road were built under the old statutes, because the act, while granting the right to construct the road over these connecting routes, contained within itself provisions for the imposition of conditions and burdens. The power to impose them lay with the commissioners under sections 36 and 26, already referred to, and with the city authorities. The commissioners could exact them before laying out the connecting routes, and the city authorities could do so before consenting to the construction of the road. The language used, when fairly construed, means that in building the road over these connecting routes the company should be regarded as having the same right to build them as if that right had been granted by the old statutes. This is very different from the case of The Mayor, etc., v. Twenty-third Street Railway Company ( 113 N.Y. 311, 319). In that case it was held that where the defendant had succeeded to and taken all the property rights, privileges and franchises of the Bleecker Street road it took them burdened with its charter obligations. We re-affirm such doctrine here when we hold defendant liable to the burdens imposed upon the corporations of which it is the successor.

There is, however, nothing in that or any other case cited by counsel which holds that, by language such as is used in the section under consideration, the legislature while granting the power intended to burden the grant with a condition not necessarily connected with or affecting the exercise of the power granted.

We know that language is frequently used in a statute which is not really necessary and which, perhaps, is to some extent superfluous. The same idea is frequently repeated in different words. Because different language may be used it is not at all necessary to attribute a different meaning to it each time. The question is on looking over the whole context what is the true meaning of the legislature, and if it be quite plain that the same power has in truth been given in different portions of the statute, although by the use of different language, it should be so held, instead of making an effort to give different meanings to the language, one of which it does not aptly and appropriately express. This holds good, even though the effort is made for the purpose of imposing a burden upon a railroad corporation which it is plain was not in the contemplation of the legislature. That it was not in the contemplation of the legislature appears to me to be true also for other reasons. The first reason and one already given is that the language is not appropriate to impose this burden. Looking at the surrounding facts, I think the same conclusion must be arrived at. A perusal of the whole act must, I think, convince any one that it was passed, having the three possible kinds of companies above described in view. All of the provisions up to the thirty-sixth section are with reference to the companies to be formed under it. The thirty-sixth provides for the building of the coincident routes by an existing company, while connecting routes were to be built by an elevated railroad company then existing and actually operating a road. Such companies were to go on and construct their respective roads along the routes and operate them under the same act, and in the language of Judge EARL in the Elevated Railroad Case ( 70 N.Y. 327, 353), these various corporations were "simply placed on a footing of equality with new companies which may be formed under the act." As to the new roads which were to be built under the special grant of power coming from the Rapid Transit Act, it is impossible to think that the legislature meant to discriminate in favor of or against any road coming under the act. The whole spirit of the act is to treat all alike and not to impose conditions or limitations upon one which would operate unfairly and as a special burden upon it when compared with the other company which was very likely to be a rival looking to substantially the same population for support. This would be manifestly unfair.

It is conceded that no obligation of payment on income has ever been imposed upon any other road under the Rapid Transit Act of 1875, and the claim here is worked out at the expense of the fair meaning of the language used.

Other considerations are not wanting. The burden of the payment of the percentage was originally imposed upon the Yonkers Company as a consideration for the use of the streets which the legislature granted. It is unnecessary to hold that this meant the use of the streets as against any rights of abutting owners as well as the city. For this purpose it can be confined to the use of the streets as against the city only. This at least was in terms granted. Since the passage of that act the amendment of the Constitution has been adopted prohibiting such use without the consent of the city authorities. If this language of the thirty-sixth section operates to impose this percentage burden upon defendant, it rests upon it without the grant of the use of the streets for which use the payment formed the consideration in the former case. The burden is the same but nothing is secured to the defendant on account of its being thus imposed. Could this have been intended? And if so, then we find the company under the necessity of making this payment in any event and also bound to submit to such other and further conditions as the commissioners or city authorities should see fit to impose before they would lay out and determine the connecting routes contemplated by the act or consent to the laying of the tracks thereon. These conditions could be made as to the payment of a percentage and as to rates of fare as well as in regard to other matters. Such a company would be at the greatest disadvantage, for by reason of the percentage burden it might be unable to compete upon the same terms which might be imposed upon the coincident routes company and thus it would be treated unjustly. We do not think that a construction which would permit such injustice would be the correct one. The commissioners or the city authorities or both would have the subject entirely under control, and they could impose such conditions as they thought appropriate before laying out the routes or before granting consent to construct the road. In this way provision would be made for all interests and all would probably be treated alike.

Again, the rate of fare allowed by the old statute for the Ninth Avenue route could be materially reduced with regard to the road to be built by the exercise of this power to consent upon condition as already stated. The power was, in truth, used by the commissioners and the city authorities, and so the defendant had to consent to the reduction before it could obtain the authority to build. Thus, the section of the statute in granting the right to build upon the connecting routes, with all the rights and with like effect as if part of the original route, must be held not to mean what it is contended to mean, at least to the extent claimed. If it is meant to give all the rights literally then the company would have the power to charge the rates of fare provided for in the statute of 1867 or 1875, and the plaintiff so assumes and argues that in consenting to take less the company consented to a condition which the commissioners had no right to impose.

We think the commissioners or the city authorities had the right to impose conditions upon that as well as other subjects concerning the building of the road, hence "all the rights" were subject to modification by the action of those bodies. Not having "all the rights" certainly the special burdens should not be imposed by a mere implication. The commissioners having full power in the case of the defendant's predecessor to consent to lay out the routes upon such conditions as they might think appropriate and such as they could impose in the case of companies who were to build coincident lines, why should an unnatural construction of the last two or three lines of the section (36) be resorted to for the purpose of holding defendant to this five per cent obligation on the Third Avenue route when none such was or ever has been imposed in the case of the other railroads which have been erected and operated under and by virtue of the provisions of the Rapid Transit Act ?

There is another reason why the language used cannot be given the literal meaning claimed for it.

The provision assumes to give all the rights, and with like effect, as if the route had been a part of the original route. All the rights would include the free and unconditional use of the streets of the city, as given by the former statutes, and without the consent of the city authorities, and for no other compensation than the five per cent payment. Yet this, it is conceded, cannot be done, because of the constitutional amendment, and, therefore, this clause in the statute must be so read as to mean that the company is to have all the rights which may remain after the commissioners shall have announced the conditions upon which they will fix and determine the routes, and the city authorities shall have given their consent upon their own conditions and the consents of the proper number of property owners shall have also been given. In granting rights which are thus made wholly uncertain as to their nature and extent, and which are incapable of enumeration until after the above-mentioned determination and consents have been made and given, can it be possible to plausibly contend that the legislature, while affirmatively granting a power, yet by the use of these words, "with the same rights and with like effect," nevertheless meant to impose a burden to which no other company taking rights under the act was subjected? It is seen that "the same rights were, in truth, not given. Why should burdens be imposed when rights were lessened? We think our construction of the words is much more plausible and much nearer the real intention of the legislature itself.

Conditions might be imposed before fixing these routes, and, indeed, in this very case they were imposed, which are inconsistent with the exercise of "all the rights" under the other statutes, the rates of fare being a very forcible example.

It is said the commissioners had no right to impose any condition as to rates of fare, and that they knew it, and, therefore, obtained an agreement as to the fare from the company. I deem the manner in which the rate of fare is established to be of small importance, whether by imposing such rates in the first instance, and as a condition upon which the route is fixed and determined, or by saying to the company: If you do not agree we will not fix the routes. It is found here that these conditions were imposed upon the company in the way of an agreement by it, but it was made a condition precedent to marking out the routes. And we think the commissioners had the right to demand such an agreement as a precedent condition. It is also worthy of remark that the commissioners, while evidently assuming jurisdiction over the whole subject of the conditions and exactions upon compliance with which they would proceed to fix and determine these routes for defendant's predecessor, and while exacting from it an agreement which it is seen covers the whole general subject, never placed this burden upon the company, nor can it be seen by any writing or evidence upon the subject that such burden was supposed to exist.

Upon the whole statute and in light of the surrounding facts known to the legislature at the time, we cannot but think that the construction of this section, as contended for by the plaintiff, is strained, unnatural and incorrect. There can be no fair reason assigned for any distinction between the rights of these various companies granted under this act to the disadvantage of the defendant's predecessors.

Finally, it is said that the defendant ever since 1879 has recognized its liability to pay this amount, and in fact has paid what it claims is a sum equal to the five per cent up to the time of the commencement of this action. Practical construction of the parties, it is claimed, makes the claim of plaintiff valid. I do not attach the same importance to the fact of payment that the plaintiff does. There must be at the bottom some statutory liability of defendant, or else it is not obliged to pay the amount in the future.

In relation to the obligation to pay on the Ninth Avenue route, it was placed in the act of 1867, which was concededly valid. The method and time of payment were thereafter prescribed by the act of 1868, which defendant consented to obey and waived the right to defend on the ground of its invalidity. But here there is no statute which authorizes the exaction, however mistaken the parties may have been in regard to its construction. There has never been any statutory authority for its payment, and there has been nothing for the the defendant to waive. The payment has been purely gratuitous. If the statute were ambiguous enough to allow a fair and rational doubt as to how it ought to be construed, and the construction actually given it by the parties were as near the true one as any could be said to be, in such case it might be the inclination of courts to construe it in accordance with such practice of the parties. In this case, however, we do not feel that the act can be fairly or naturally construed in the way plaintiff claims.

This leads to a reversal of the judgment as to the Third Avenue route.

Third. The counterclaims of the defendant we do not think can be allowed. There was never any warranty in regard to the free use of the streets by defendant as against abutting owners. On the contrary, the very act under which defendant claims the right to recover the sums paid to abutting owners, provides for the payment thereof by the company. (Sec. 11, act of 1867.) The amounts heretofore paid by defendant cannot be recovered back as involuntary payments within any principle, and the plaintiff is entitled to retain the same. There has been no mistake of fact under which payments have been made, and the defendant must remain where it is in relation to moneys paid heretofore.

We express no opinion upon the proper construction of the expression "net income," but leave that for decision when it necessarily arises. The accounting can go on if necessary, and upon it full evidence may be given so that a decision as to the true meaning of the expression may be arrived at in the light of all the facts surrounding the discussion which it may be material to know.

For the reasons above given the judgment should be reversed and a new trial granted, with costs to abide the event.