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The People agt. Long Island Railroad Company.

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sibly the original purchaser, Mr. Richardson, or his immediate assignee, the Atlantic Avenue Railroad Company, might have been bound by the provision in the mortgage foreclosure decree, but the Long Island Railroad Company cannot be, because the contract was to and with it, and not by it. As to the other exceptions and reservations contained in the decree of foreclosure — relating to the acts under which the tunnel was closed — it will presently be seen, that nothing therein contained prevented these defendants, or either of them, from acquiring a future right to use steam upon the avenue.

Let us now examine the argument, which seeks to deduce from the act of 1859, an agreement between the State and the owners of the property assessed, to the effect that the use of steam should be forever prohibited upon the avenue.

There is certainly nothing in the law indicating an agreement on the part of any person. There is no voluntary payment to be made for the surrender of existing rights, nor for an agreement as to future conduct. The act simply provides for the raising of $130,000 upon a district, which is defined, for the purpose, among other things, of procuring “a contract in writing with the Long Island Railroad Company, or its assigns, that they shall close the entrances of the tunnel in Atlantic street, in the city of Brooklyn, and restore and pave and regulate the same to its proper grade, and also for the relinquishment by said company and its assigns of the right to use steam power within said city.” Instead of the payment being voluntary by the owners of the property within the district, we know from the history of litigation in this state, as contained in the reports, that payment of the assessments under the law was resisted ; and their legality was sustained upon the ground that it was the exercise of the taxing power of the state (Litchfield agt. Vernon, and People ex rel. Crowell agt. Lawrence and others, Commissioners, 41 N. Y., 123; Litchfield agt. McComber, 42 Barbour, 288). The extract above given from the act shows for what purpose the assessment was made, and the money paid. No agreement was

The People agt. Long Island Railroad Company.

required to be exacted from the Long Island Railroad Company or its assigns, in regard to the future use of steam, but only one requiring the closing of the entrances to the tunnel, the restoration of the street and the “relinquishment

of the right to use steam power within said city.” Bearing in mind that the right to use steam then existed, the language is easily understood. The surrender of a right existing by its owner is no covenant against a future reacquirement thereof, any more than a sale of present interest in any property or business, is an agreement against a future repurchase. Perhaps the owners of the property on Atlantic avenue, who were instrumental in obtaining the legislation and the consummation of the proceedings authorized by law, expected that steam would not thereafter ever be used thereon as a propelling power, but whatever their expectation in that regard was, it is certain that they have failed to insert any such prohibition in the statute. But even though it had been embodied in the act, it would have been ineffectual to control a subsequent legislature. It is beyond the power of the law-making authority of a state to control future legislation upon matters of public interest. Such a doctrine, if sustained by the courts, would bar all progress, and restrain growth and prosperity by legal barriers, which would be unendurable. It is unnecessary, however, to reason either upon the effect of the language in the act of 1859, or its validity, if it could be construed as claimed by the counsel for the plaintiffs. The case of Newton and others agt. Commissioners of Mahoning (vol. 21, Albany Law Journal, page 350 date of publication of journal, May 1, 1880, and now reported in 10th Otto, 548), decided by the supreme court of the United States, settles every question thereunder. It was sought in that action to restrain the removal of the county seat of Mahoning county, Ohio, from Canfield to Youngstown. The location had been made at the former place by an act of the legislature of that state passed in 1846, which declared it should be “permanently established" there upon the fulfill

The People agt. Long Island Railroad Company.

ment of certain prescribed terms and conditions, which were fully complied with. After the county seat had remained at Canfield for about thirty years, in 1874 another act was passed removing it to Youngstown. It was held by the court, Mr. justice Swayne writing the opinion, “ (1.) That the contract clause of the Constitution had no application. (2.) That the act of 1846 was a public laro relating to a public subject, with respect to which a prior had no power to bind a subsequent legislature. (3.) Conceding there was a contract as claimed, it was satisfied on the part of the state by establishing the county seat at Canfield, with the intent that it should remain there. (4.) There was no stipulation that the county seat should be kept or remain there in perpetuity. (5.) The rule of interpretation in cases like this, as against the state, is, that nothing is to be taken as conceded, but what is given in express and explicit terms, or by an implication equally clear. Silence is negation, and doubt is fatal to the claim” (See, also, The People agt. Roper, 35 N. Y., 629).

Upon both reason and authority, then, we are constrained to decide that no contract whatever existed by force of the act of 1859, preventing the state in the future from conferring the right to use steam on Atlantic avenue, Brooklyn, upon the defendants, and it will next be considered whether any actual agreement has been made by any one, either with the general public or property holders, or the city of Brooklyn, that steam power should not be thereafter used to propel cars upon Atlantic avenue.

It has been already said that the Long Island Railroad has made no such covenant, but it is proper to refer to it again in this connection. A reference to its contract with the Brooklyn and Jamaica Railroad Company makes the assertion that such company has not so agreed clear. The former corporation was about to change its eastern terminus from the South Ferry to Hunter's Point, and was desirous, as it surrendered its lease to the latter, to prevent it (the Brooklyn and Jamaica Company) from using steam within the city of Brooklyn, not

Vol. LX 52

The People agt. Long Island Railroad Company.

only for the benefit of property holders on Atlantic avenue, but “also for the private interests of the Long Island Company connected with its change of location,” and it therefore exacted from the Brooklyn and Jamaica Railroad Company an agreement to itself to abandon forever the right to use steam within the city limits, with an express stipulation that it (the Long Island Railroad Company) should, in case steam was ever so used by the Brooklyn and Jamaica company or its assigns, “be entitled in its own name to have an injunction against its use and to have the covenant of the Brooklyn and Jamaica Railroad Company,” in such agreement contained, specifically enforced.”

To the agreement subsequently made between the Brooklyn and Jamaica Railroad Company and the commissioners appointed under the act of 1859, the Long Island Railroad Company was not a party as a covenantor. It (the latter) had surrendered to the former all its rights acquired by the lease, and had obligated it (the Brooklyn and Jamaica Railroad Company) to itself (the Long Island Railroad Company) not to use steam within the city limits, and it simply gave its consent to the Brooklyn and Jamaica company making such covenants as it pleased. The contract is expressly declared to be “between the Brooklyn and Jamaica Railroad Company, party of the first part, and the said Theodore F. King, John L. Lawrence and John Winslow, commissioners, parties of the second part." The covenants and obligations are only those of the Brooklyn and Jamaica Railroad Company, to which the Long Island Railroad Company assented (i. e., that the former might bind itself as it chose), because, to use the language of the agreement, it was “thought advisable” that it should “assent” thereto, and it therefore did “ so far as it had any right so to do, and so far as it has any interest therein."

Before proceeding to consider the agreement which was made between the Brooklyn and Jamaica Railroad Company and the commissioners appointed under the act of 1859, it

The People agt. Long Island Railroad Company.

should be borne in mind that, as that statute prescribed the terins to be exacted thereunder, such contract is valid only to the extent of the power conferred by such law; and also, that the franchise now claimed by the defendants is not derived from the Brooklyn and Jamaica Railroad, but under a law of the state enacted in 1876. It is not, therefore, very important for the purposes of this case, to consider what obligations that corporation has incurred, but it may not be improper briefly to consider them.

There is, as has been previously argued, a wide difference between the surrender of a franchise, with an agreement not to exercise it (that is, the present right which is surrendered), and a covenant against an acquisition of a new right thereafter. Such a construction of the language of the agreement we are considering is not technical, but the reverse. Corporations are created for the public good, and any contract, which one may have made, abridging its powers, which should ever remain in full force to be exercised for the convenience of the public as it may require, should be construed, if possible, in accordance with the public interests, and not against them. Whether an agreement by a railroad company, which cripples its ability to fill the public needs is valid at all, is a qnestion which will be hereafter discussed. We are now dealing with another, which is, did the Brooklyn and Jamaica Railroad Company, by its agreement with the commissioners, agree never thereafter to acquire a new right or franchise for the use of steam within the city? The corporation was simply surrendering property and rights it then possessed, and in speaking of such surrender, the language relied upon by the counsel of the plaintiffs is employed. It obligated itself to perform all things required by the act of 1859, and the act of 1860 (chap. 100 of Laws of 1860), and then, as a time had to be fixed for the termination of the then existing right to use steam within the city, it provided that “steam power shall not be used, or permitted upon its road, or any part thereof within the city of Brooklyn, at any time or times after the

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