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and 136 New York State Reporter regard, as and for the municipality. The grant was, therefore, a grant from the city, the owner of the streets, for the use and benefit of the public. It was the city, therefore, the grantor of the franchise, which had the power to consent to and ratify the assignment of the franchise.
The record shows that the American Electric Illuminating Company, claiming and owning no better right to do so than the franchise in question, and the title thereto, through the assignment to Townsend, did in fact erect poles in the streets of the city and string wires thereon, and supply electricity to its customers by means of such poles and wires, and continue to do so until the completion of respondent's subways, and the forcible removal by the public authorities of all the poles and overhead wires then maintained in the more populous section of the city in Manhattan Island. Unless the American Electric Illuminating Company had municipal authority to erect poles and string wires, these structures constituted illegal obstructions, which it was the duty of the municipal authorities to remove. We are not to presume that public officers willfully fail to do their duty, and, in view of the acute public and official opposition at that time to the maintenance of overhead wires, we should find it difficult to believe that the public authorities stood by and permitted a wholly unauthorized company to add to the unsightly structures then generally condemned, and permitted the company to expend its money in erecting such structures. Of course, we do not intend or undertake to pass upon any question that may arise between the city and the relator, but the acquiescence of the city in the acts of the illuminating company appear to indicate prima facie a ratification of and consent to the devolution upon that company of the title to the franchise originally given to the manufacturing company, and if the illuminating company, when its poles and wires had been cut down, had at once applied for space in the subway, we much doubt whether it could have been denied. If it had a right to entrance then, it does not appear that its right has been lost by anything that has transpired since.
We are next brought to consider whether the respondent is in a . position to call into question the validity of the relator's title to the special franchise in question. The respondent is a private corporation, operating for its own gain. The contracts between it and the commissioners of electrical subways, as well as the act ratifying these contracts, are replete with provisions designed to prevent the monopolization of the subways. The respondent is invested with no authority to grant or withhold privileges, or to discriminate between rival applicants for space in its conduits. It is vested with no governmental functions, and represents in no sense the public either of the state or the city. Whether or not a special franchise may be assigned is a matter of public, and not of private, concern. Such an assignment is not malum in se, and the only ground for ever questioning the assignability of such a franchise is that the public were interested in its exercise by the original grantee. Accordingly, it has been held that only the public may question the validity of an attempted assignment, and that it is not a question to be raised collaterally or by any private individual. Thompson on Corpns. vol. 4, par. 5367; Oakland R. Co. v.
Oakland, etc., R. Co., 45 Cal. 365, 13 Am. Rep. 181. A similar ruie has uniformly been applied as to the right to question the validity of a company's incorporation, a closely analogous question. Thus, where an attempt has been made to create a corporation by papers with the color of law, but so far defective in execution that they would be held, in a direct proceeding, to be defective and ineffectual, and the corporation has exercised its corporate powers, it is well established that the corporation is safe from collateral attack by any person by reason of its defective incorporation, and can be directly attacked only by the state. Lamming v. Galusha, 81 Hun, 247, 30 N. Y. Supp. 767; Buff. & Atl. R. Co. v. Cary, 26 N. Y. 75; Eaton v. Aspinwall, 19 N. Y. 11:9. The relator stands in this precise position. It holds the franchise to operate under a formnal assignment from the original grantee, and its predecessor in title, holding under the same assignment, actually exercised the privilege conferred by the franchise. We do not, of course, hold that the respondent is obliged to assign space in its conduits to every one who may apply, or that it may not, before assigning such space, inquire whether the applicant has a right to enter, but we are of opinion that when application is made by a corporation having apparent right to a franchise, and which has actually, with the acquiescence of the public authorities, exercised the franchise, the validity of its right and title is not open to collateral attack. If, for any public reason, there is a doubt as to the validity of the title, that question can be raised by the proper municipal auhority when application is made for a permit. If not then raised, the question is of no concern to the respondent. That the franchise was assigned in the first instance to an individual does not suggest any defect in the chain of title. We are not aware of any statutory or inherent reason why the right to construct and maintain electrical conductors may not be conferred upon an individual, and none has been suggested. At all events, Townsend, the assignee, never attempted to use the franchise, but seems to have served merely as a conduit through whom the franchise passed from one company to another. Such a method of transfer is not invalid. Parker v. Elmira, C. & N. R. R. Co., 165 N. Y. 274–280, 59 N. E. 81. Before actually stringing its wires, it is necessary that relator shall have, not only an allotment of space, but also a permit from the commissioner of water supply, gas and electricity. It seems to be quite unimportant which is applied for first, and would be of no importance whatever, were it not for the rules made by the commissioner of water supply, gas and electricity governing such application. These rules cover both applications for leave to construct subways and for leave to enter subways already constructed. As to the latter, rule 3, read upon the motion, is applicable. It is subdivided into two parts, designated “a” and “b.” Subdivision “a” requires that application for space must be made to the subway company and certain particulars given. Subdivision “b” reads as follows:
“When applications have been made and space assigned for conduits under ground, the written consent of the Commissioners must be obtained before any conductors are placed in the space so assigned.”
If the relator had applied to the commissioners before he obtained an allotment of space, his application might well have been, and doubtless and 136 New York State Reporter would have been, refused under this rule. The unverified letter of the deputy commissioner that a contrary rule has obtained in practice cannot be considered in contradiction of the plain letter of the rule.
It is also suggested that the special franchise itself requires certain p'ans to be approved before the franchise can be operated. The grant was of the right to erect poles and hang wires thereon, as well as to place wires underground, and provided that all should be done "according to such plan as may be directed, approved or allowed by and subject to the power of the electrical subway commissioners." If the relator were applying for leave to construct conduits for its wires, it would undoubtedly be required to construct them under approved plans; but this is not what it asks. It wishes to draw wires through conduits already constructed according to plans which have been directed, approved, and allowed by the subway commissioners, which is precisely what the franchise calls for. It is stated in an affidavit included in the papers read in opposition to the motion that there are not sufficient subways constructed in the locality requested by the relator, and that, if this application were granted, additional subways wou'd necessarily have to be constructed, for which under the statute the relator would be obliged to give a bond. It is not asserted that any such bond has been demanded, and it is made quite clear that the respondent does not rely upon this objection to relator's application because it is stated in the same affidavit, made by respondent's superintendent, that "the sole reason why the respondent has refused to comply with the request of the relator is that neither has the relator been duly authorized to conduct the electric light business in the city of New York either by legislative act, or administrative act, nor is the respondent empowered by law to allot space in its subways upon the app ication made”; and in the formal answer by respondent to relator's petition it is not alleged, as a reason why the mandamus should not issue, that there are no available ducts. Hence the existence of available ducts is not put in issue. In any event, the commissioner of water supply, gas and electricity has power to order new conduits to be constructed, and it appears by his own rules that he will do so when, and if, he is satisfied that the unused facilities of existing subways are insufficient to meet existing requirements.
We are of opinion that, as against the respondent, the relator has established its right to the allotment of space in the conduits, and the order appealed from is therefore affirmed, with $10 costs and disbursements.
PATTERSON, P. J., and CLARKE, J., concur.
INGRAHAM, J. (dissenting). The relator has obtained a peremptory writ of mandamus requiring the Conso'idated & Electrical Subway Company to grant to the Long Acre Light & Power Company space in its subway ducts for the placing of the electrical conductor therein, extending through various streets in the city of New York. The proceeding was instituted by an order to show cause, based upon affidavits, and a peremptory writ was granted upon motion. To entitle the relator to a writ of mandamus he must show by undisputed facts a clear legal right to the relief demanded. People ex rel. Sherwood v. Board of State Canvassers, 129 N. Y. 360, 29 N. E. 315, 1+ L. R. A. 646. If any question of fact upon which the relator's right to relief depends is presented, or if there is a serious doubt about his legal right to such relief, the peremptory writ should be denied, and an alternative writ granted. I think upon the facts as they appeared before the court below the re'ator had not a legal right to the relief that he asks for. The relator's claim is as the owner of a franchise granted by the board of aldermen to the American Electric Manufacturing Company. It appeared that the American Electric Manufacturing Company was incorporated under the manufacturing corporation act of 1848. Laws 1848, p. 54, c. 40.
On the 31st day of May, 1887, the board of aldermen passed a resolution by which permission and authority was granted to the American Electric Manufacturing Company to locate and erect poles, and hang wires and fixtures thereon, and to place, construct, and use wires, conduits, and conductors for electrical purposes in the city of New York in, over, and under the streets, avenues, wharves, and parks therein specified, according to such plans as may be directed, approved, or allowed by and subject to the powers of the electrical subway commissioners, and subject to the provisions of chapter 499, p. 852, of the Laws of 1885, and under the supervision of the commissioner of pub'ic works and to the department of public parks, within the respective territorial jurisdictions. Nothing seems to have been done under this resolution by the American Electric Manufacturing Company; but on the 18th day of April, 1888, there was executed an instrument by which the American Electric Manufacturing Company granted unto one Townsend, his administrators and assigns, "the sole and exclusive right and privilege to operate for all purposes under the franchise, privilege, permission, authority or right granted to it by the board of aldermen of the city of New York, by a resolution adopted by the said board on the 31st day of May, 1887, to locate and erect and set up poles and hang wires and fixtures thereon, and to place, construct and use wires, conduits and conductors for electrical purposes in the city of New York, in, over and under the streets, avenues, wharves, piers and parks therein or adjacent thereto, according to such plans as may be directed, approved or allowed by and subject to the powers of the electrical subway commissioners, and to the provisions of chapter 499 of the Laws of 1885." Subsequent to the execution of this instrument, on the 29th day of December, 1888, there was incorporated under the manufacturino art of 1848 the American Electric Illuminating Company, and on the 19th day of April, 1889, Townsend assigned and transferred to this corporation “any right, title, and interest I have and hold or may have and hold, as trustee for such American Electric Illuminating Company, or individually in and to and under the paper, writing and assignment, dated April 13, 1888, made by the American Electric Manufacturing Company, a company duly organized under the laws of the state of New York, unto me, and the rights, permission, privilege, franchise and authority therein referred to. It appeared that subsequent to the execution of the instrument by Townsend, and in and about the year and 136 New York State Reporter 1889, the American Electric Illuminating Company, in the regular course of its business, duly installed an office and an electric lighting station at 426 East Twenty-Fifth street, borough of Manhattan, in the city of New York, and within said building it installed and operated a comp'ete electric light producing equipment, and in and upon certain streets in the city of New York it strung wires and poles, some of which were erected and owned by it, and others had been formerly erected and used by the East River Electric Light Company and the Thompson-Houston Electric Light Company, and by means of such electrical equipment it supplied to the public electric light under its franchise, grant, permit, license, and contract to the full extent for which its facilities were equal, and continued so to do for a period of more than one year thereafter, and until its poles, wires, and lamps, together with the poles, wires, and lamps of other companies in the city of New York, were cut down and removed by order of the board of electrical control and the commissioner of public works. It is also alleged that by such action on the part of the city of New York the American Electric Illuminating Company was injured, and its property destroyed, and, there being no electrical subways in that section of the city of New York at that time, it became incapacitated from furnishing its customers in said streets and avenues with electricity for light and all other purposes. Subsequently, and in the year 1897, judgment was obtained against this company. A receiver was appointed, who sold out all the property and rights of the company, and the rights thus sold were acquired by the relator. So far as appears, the relator simply holds whatever right it acquired under the sale by the receiver of the property, franchise, and rights of the American Electric Illuminating Company.
I think there is a serious doubt as to the right of this relator to the franchise granted by the city of New York to the American Electric Manufacturing Company. Assuming that that company was in possession of a legal franchise to use the streets of the city of New York for its wires, conduits, or conductors, it never formally assigned such franchise to Townsend. I know of no power of the holder of a franchise to grant to an individual a new franchise. While it may be assumed that the owner of a franchise, unless in some way restricted. can assign its franchise, so that, when the assignee has constructed the necessary appliances to use the franchise, his right to operate the franchise will not be interfered with, it does not appear that the owner of a franchise would be authorized to grant to another the right to use the franchise. The American Electric Manufacturing Company by this instrument did not divest itself of the franchise. If it could grant to Townsend the right to exercise the franchise, I can see no reason why it could not give a similar grant to any other person, and thus grant franchises. If such a grant would be sufficient to confer upon the grantee a right to use the franchise granted, there would apparently be two persons authorized to use the franchise, and this might be indefinitely extended to as many persons as the original grantee should desire. What, as I view it, the board of aldermen granted, assuming that their grant was valid, was the power to this corporation, organized under the laws of the state, to exercise a certain franchise.