Appeal from Kings County Court.
The Transit Development Company was convicted of maintaining a public nuisance, in violation of Pen. Code § 385, and it appeals. Reversed.
[115 N.Y.S. 298] Edward W. Hatch (George D. Yeomans and Charles L. Woody, on the brief), for appellant.
Robert H. Elder (John F. Clarke, Dist. Atty., on the brief), for the People.
Argued before WOODWARD, JENKS, GAYNOR, and MILLER, JJ.
The defendant is a domestic corporation, organized under the business corporations law (Laws 1890, p. 1167, c. 567), for the purpose, among others, of carrying " on business of general contractors, including the contracting with other corporations and persons for the supply of power or for the construction, equipment or improvement of railroads, bridges, wharves, tunnels and subways and to carry out such contracts." It maintains an electric power plant on the river front at Kent and Division avenues in the borough of Brooklyn. The people's evidence tends to show that small flakes or particles of hard coal are emitted from its smokestacks, fall upon passers-by, and are blown or sifted into the houses within a given radius. A gas plant [115 N.Y.S. 299] across the street and other manufacturing plants in the vicinity burn large quantities of coal daily. The defendant's evidence tends to show that its plant was suitably located, was equipped with the best up to date devices, and was properly run; that, not being permitted to burn soft coal, it burned the only other coal commercially practicable for it to use; and that at the time of the trial it was installing at large expense a device which, though new for that use, was expected greatly to reduce, if not entirely to prevent, the emission of cinders from its smokestacks. It offered in evidence the certificates of incorporation of the railroad companies comprising the Brooklyn rapid transit system, and it offered evidence tending to prove the relations existing between them and it, that the Brooklyn Rapid Transit Company owned all of its capital stock, that it sold power only to them, and at cost, and that it was not practicable for them to get the power elsewhere. All of that evidence was excluded.
The defendant contends that the railroad corporations have legislative permission to maintain at suitable and convenient places the necessary power plants to run their roads, that they may contract with another to do that for them, and that the permission given them devolves on the one with whom they contract. The learned district attorney contends that, as the Legislature has not expressly authorized this particular plant to be run at the place and in the manner disclosed, neither the defendant nor the railroad companies have permission to run it. While there are expressions in some opinions, not necessary to the point actually involved, tending to support the proposition contended for by the district attorney, no case is cited expressly holding that to be the law of this state; but the contrary has been decided. The actual authority for the proposition is the case of Managers, etc., v. Hill, 4 L. R. Q. B. 433; Id. 6 L. R. App. Cas. 193. The reason for the decision in that case was the absence of any provision in the act for compensation to persons whose rights should be invaded, which was regarded, as expressed by Lord Blackburn, as " a reason, though not a conclusive one, for thinking that the intention of the Legislature was, not that the thing should be done at all events, but only that it should be done, if it could be done, without injury to others." But our Legislatures, unlike Parliament, are subject to constitutional limitations, and are powerless to authorize a taking of private property, even for a public purpose, without making compensation. Muhlker v. Harlem R. Co., 197 U.S. 544, 25 Sup.Ct. 522, 49 L.Ed. 872.
The question as to what constitutes a taking and what results only in consequential damages is not material to the present discussion. When our Legislature authorizes a thing to be done which may cause injury to private persons, it cannot be supposed that it was intended to be done without making compensation; and, where permission is given a corporation having the power to take property by the right of eminent domain, it must be supposed that the intention was that it should acquire the necessary rights by the exercise of that power, if not by contract. At any rate, the reason for requiring explicit authority of Parliament for the particular act does not apply in this country. However, it is undoubtedly the law that the act, for the doing of which legislative [115 N.Y.S. 300] authority is claimed, must have been within the contemplation of the Legislature, and either expressly or by necessary implication permitted by it. Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N.Y. 10, 8 N.E. 537,57 Am. Rep. 701; Bohan v. P. J. G. L. Co., 122 N.Y. 18, 25 N.E. 246,9 L.R.A. 711; Morton v. Mayor, 140 N.Y. 207, 35 N.E. 490,22 L.R.A. 241; Booth v. R., W. & O. T. R. R. Co., 140 N.Y. 267, 35 N.E. 592,24 L.R.A. 105,37 Am.St.Rep. 552; Garvey v. L. I. R. R. Co., 159 N.Y. 323, 54 N.E. 57,70 Am.St.Rep. 550; D., L. & W. R. R. Co. v. City of Buffalo, 158 N.Y. 266, 53 N.E. 44; Sadlier v. City of New York, 104 A.D. 82, 93 N.Y.Supp. 579,185 N.Y. 408, 78 N.E. 272.It should be observed that those were all private suits.
Public, not private, rights are involved in this case. There can be no doubt that the railroad corporations have legislative permission to do what is necessary for the running of their roads in the city (now borough) of Brooklyn, for that has been expressly decided. Brooklyn Heights R. R. Co. v. City of Brooklyn, 152 N.Y. 244, 46 N.E. 509.See, also, Bennett v. L. I. R. R. Co., 181 N.Y. 436, 74 N.E. 418; Friedman v. N.Y. & H. R. R. Co., 89 A.D. 38, 85 N.Y.Supp. 404.When the Legislature authorized the organization of corporations to construct and operate electric roads in cities, it of course contemplated the construction of such roads as exist in the borough of Brooklyn. In view of the location of this city and of its rapid growth, it must have been within the contemplation of the Legislature that power plants would have to be located where possible annoyance or discomfort to private persons might be caused. That did not authorize the taking of private property without making compensation, but it prevented the thing authorized from being a public nuisance. See People v. N.Y. Gaslight Co., 64 Barb. 55. In Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 Sup.Ct. 719, 27 L.Ed. 739, the court, per Mr. Justice Field, quoted with approval from Sinnickson v. Johnson, 17 N. J. Law, 151, 34 Am. Dec. 184, the following:
" It may be lawful for him [the grantee of the power] and his assignees to execute this act, so far as the public interests, the rights of navigation, fishing, etc., are concerned, and he may plead, and successfully plead, the act to any indictment for a nuisance, or against any complaint for an infringement of the public right, but cannot plead it as a justification for a private injury which may result from the execution of the statute."
However, the defendant has been endowed only with the powers which any individual may exercise, and can claim from its certificate of incorporation no greater rights. It is a mere accident that the railroads are its only customers, if that be the fact. A right, specially granted to a quasi public corporation, cannot be devolved by it upon an individual. It must be presumed that the Legislature intended that the right should be exercised by the one to whom it was granted. Permission to own and run the entire system might as well be devolved as permission to own and run any part of it. The railroads could have acquired, under the power of eminent domain, the site for this power plant and the property rights infringed by its maintenance, a cogent reason for thinking that the railroads have legislative permission to [115 N.Y.S. 301] maintain it. But the defendant had no such power, and there is as much reason for saying that the power of eminent domain to acquire the site could be devolved as that the permission to maintain the plant upon the site when acquired could be.
The cases of Benner v. A. D. Co., 134 N.Y. 156, 31 N.E. 328,17 L.R.A. 220,30 Am.St.Rep. 649; Bates v. Holbrook, 171 N.Y. 460, 64 N.E. 181, and similar cases, are not in point. In those cases, the defendants contracted to do public work, directed by the Legislature to be done. They obtained their permission, not by devolution, but directly from the public authorities authorized to make the contract. Moreover, all of said corporations could not give the defendant the right to generate at one place the power which they might separately have the right to generate at different places. Of course, we are not advised of what the proof might show respecting the right of the Brooklyn Rapid Transit Company to operate the entire system as one road or what the fact respecting such operation may be; but, in any view of the case the defendant cannot shield itself behind legislative permission. However, it does not follow that the said evidence was properly excluded.
It is important at this point to observe the distinction between public and private nuisance. Blackstone defines " public or common nuisances" to be those " which affect the public, and are an annoyance to all the king's subjects," and " private nuisances" to be " anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another." A public nuisance is a thing which " in its nature or its consequences is a nuisance, an injury or a damage to all persons who come within the sphere of its operation, though it may be in greater or less degrees." Soltau v. De Held, 9 Eng. L. & E. 104-111. A nuisance is public " when it affects the rights enjoyed by citizens as part of the public, as the right of navigating a river or traveling on a public highway, rights to which every citizen is entitled." King v. Morris & Essex R. R. Co., 18 N. J. Eq. 397-399.
Upon first examination of sections 385 and 386 of the Penal Code, it may seem that the Legislature intended to change the law. Those sections are taken from sections 430 and 431 of the draft Code, prepared by the Field Commission and submitted to the Legislature in 1865. It is evident from the report of the commission that they intended only to codify and harmonize existing laws. The four subdivisions of section 430 are supported by a note, containing numerous citations, and in the note to section 431 the reason for substituting the words " a considerable number of persons" for the words " ...