of its title is unconstitutional and void, and hence all subsequent legislation based upon that act must fall with it. When the act of 1886 was passed, under which the defendant proposes to lay down its tracks and to construct its underground railways, it had no power to construct an underground railway for the transportation of passengers and general freight through tunnels, and, therefore, that act is in conflict with section 18 of article 3 of the constitution, which forbids the legislature to pass a private or local bill granting to any corporation the right to lay down railroad tracks or to construct a street railroad, except upon conditions mentioned in that section. (Matter of N. Y. District R. Co., 107 N. Y. 42.)

We need go no further. The conclusion already reached renders it unnecessary to solve the various other questions argued with much ability and learning by the able counsel who appeared before us. The judgment should be affirmed with costs.

GRAY, J. I concur with EARL, J., in his opinion that the act of 1873 was unconstitutional and void, in that it failed to comply with section 16 of article 3 of the constitution. But I am further of the opinion, assuming that the act of 1873 was valid, and that there was an acceptance of and a valid compliance with its conditions, and that there was a waiver of causes of forfeiture by the passage of the act of 1886, that the latter act was in violation of the provisions of the constitutional amendment, which went into effect on January 1, 1875. By that amendment the legislature was inhibited from passing a private or local bill, granting to any corporation the right to lay down railroad tracks, or any exclusive privilege, immunity or franchise whatever. The act of 1886, under which the appellant claims to have acquired its present rights, can not, in my view of what it grants, be upheld as legislation which merely regulates the exercise of powers formerly granted to and possessed by an existing corporation. It went far beyond that. It was, in fact, a new grant of substantive rights, in addition to and differing from what might have been claimed under the act of 1873. By the act of 1873 the company would have had a right to construct a railway in tubes, which should not occupy a greater space than thirty-one feet in width, by eighteen feet in height, exterior measurements. The company could not have approached within two feet of the curb line, nor within eighteen feet of the building line. These restrictions must be deemed to be important limitations and wholesome provisions, designed for the protection of the rights of the abutting property-owners and to secure to the public the rightful enjoyment of the streets as such. By the act of 1886 they would possess the right to excavate for their railways a space of fortyfour feet, inside measurements, in width, and without any limitation as to depth. They might construct railways without the use of tubes or tunnels, and use any motive power which would not permit of the emission of smoke, gas or cinders.

I think we have here a pretty wide departure from the rights and powers to be enjoyed under the act of 1873. The pneumatic tube of a diameter of fifty-four inches, for the transportation of packages

and merchandise, authorized under the original charter of 1868, and which was transmuted by the act of 1873 into a tubular passenger and freight railway, has now wholly disappeared, and in its place appears a scheme for what amounts to a complete occupation of the street for railway purposes, except so far as it leaves a roof over the excavation to take the place of the street surface. This grant of right to excavate the street to an extent practically unlimited, and the permission to abandon tubes and to construct railways in the excavations are matters of grant too serious in their nature and consequences, under the circumstances of the case, to be passed over as in mere regulation of an existing franchise. To allow such legislation is, in my opinion, to nullify the beneficial and protective objects aimed at by the constitutional amendment of 1875.

Under the guise of an amendment, there was a legislative grant to this company of franchises and privileges beyond any naturally following upon, or flowing from, those granted under the act of 1873, not in harmony with the spirit of that grant, and of necessity, exclusive in their nature. It, therefore, fell within the prohibition of the constitutional amendment.

When the people have, by amending the constitution, restricted the powers of their respresentatives in the legislature to pass private or local bills, which grant the right to lay down railroad tracks, or any exclusive privileges or franchises to a corporation, the courts should see to it that the constitutional limitation is not evaded, under the pretense of an amendment of the charter. They should scrutinize the legislative act complained of, not with the idea of seeking the way to a construction adverse to its constitutionality, but rather to uphold it, if possible. But if the scrutiny reveals a real and serious violation of the constitutional provisions, they must condemn the act as invalid.

It is said, however, that a scope of action is offered for the legislature, with respect to corporations already in the possession of corporate rights, acquired under statutes passed before the adoption of the constitutional amendment. As a general proposition this is true. Conceding to the legislature its full measure of authority to legislate, under the general grant of power by the constitution of the state, we hold that such authority, when now exercised by a private bill in behalf of a corporation, can not, under the guise of measures for the regulation of the exercise of the corporate powers and franchises, be upheld by the court, when, by a practical construction, the act permits what the amendment to the constitution prohibits. A regulation of these powers and franchises, when the act touches them so as to alter them, means their restriction rather than their enlargement. If enlargement of powers may be sometimes consistent with the constitutional limitations, it may not go to the extent of trenching on the territory of private and public rights, over which the constitution was plainly intended to operate in its limitations. When enlargement of corporate powers becomes indistinguishable from a grant of new substantive rights, within the purview of the section in question,

then the mischief is accomplished, to prevent which the constitutional amendment was designed.

In the Matter of the Gilbert Elevated Railway Company (70 N. Y. 361), Church, Ch. J., in discussing the changes of structure, etc., made by the commissioners under the provisions of the rapid transit act, said the changes were restrictive in their character. "By the charter the whole street was to be covered by the structure; by the conditions imposed only a portion of some streets could be occupied." And he says in that connection: "I can not accede to the proposition that any change in the structure and in the manner of occupying the streets, however restrictive upon the company, or beneficial to the public in the use of the streets, constitutes a fresh grant of the right to lay down railroad tracks. It is a misnomer to call such restrictions grants of any right whatever. As well might the cutting down of a fee to a life estate be termed a grant of land." Again he says: "No exclusive right or franchise was granted to the respondent corporation upon any construction of the clause. Every substantial right existed before the passage of the act, and the conditions imposed, embracing changes of structure and manner of occupying streets, should be regarded as restrictive of existing rights, and not grants, of rights or franchises within the constitutional sense. series of amendments designed to restrict the powers of the legislature in matters of detail, under general phrases and undefined words, is experimental in this state. They must be sustained and applied by a rational and practical construction, so as to subserve the purposes intended, and prevent the evils designed to be remedied; but not, by an artificial and technical construction, to extend their application to cases never contemplated."

This

If the legislative act

I think the meaning of the decision is clear. operates upon a charter in the direction of a regulation, an adjustment or a restriction of powers possessed, it could not be objectionable. Within its reserved powers the legislature may, at all times, amend or alter the charter, but the constitutional amendment will not permit it by a private bill to make any new grant of rights, comprehended within those specified by the amendment. I do not think that it can be said, in the present case, that every substantial right given by the act of 1886 existed previously.

For the reasons I have briefly given, I think the act of 1886 practically gave to this corporation a right to lay down railroad tracks, which it could not have exercised under the act of 1873, and, also, gave what are practically exclusive privileges. I think it contravened the constitution, in the letter and in the spirit, and is therefore void. All concur with EARL, J.; RUGER, Ch. J., DANFORTH and PECKHAM, JJ., concur with GRAY, J.

Judgment affirmed.

Sec. 75. (5) Two-thirds vote required.

"The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill creating, continuing, altering or renewing any body politic or corporate.'

Note. See Warner v. Beers, Thomas v. Dakin, Falconer v. Campbell and Green v. Graves, supra, pp. 2, 19, 287, 292, and notes there given.

SUBDIVISION II. THE BODY CORPORATE, ITS PARENTAGE—The PROMOTERS.1

CHAPTER 4.

FUNCTIONS AND CLASSES OF PROMOTERS.

Sec. 76. Definitions.

In the English Companies Act, 7 and 8 Vict., c. 120 (1844), the expression "promoter" or "promoter of a company" (is declared) to apply to every person acting by whatever name in the forming and establishing of a company at any period prior to the company obtaining a certificate of complete registration provided for. The same act provided that before proceeding to make public, either by prospectus, hand-bill or advertisement, any intention or proposal to form any company, it should be the duty of the promoters to make to the registration office returns as to the name of the proposed company, its purpose and the names, occupation, place of business and place of residence of the promoters; the promoters were also to file a written statement consenting to become such promoter, and a written contract entered into with some one or more persons as trustees for the company, to take one or more shares; also, afterward to file a statement as to provisional place of meeting, names of members of the committee in the formation of the company, names of the officers of the company, names of subscribers, copy of prospectus, etc.

The method of formation of English companies now, under the companies act of 1862 (25 and 26 Vict., c. 89), is much the same as was provided by the act of 1844, although "promoter" is not defined or used in the act of 1862. See, also, Directors' Liability act of 1890, 53 and 54 Vic., c. 64, § 3, ch. 2.

1892. In 2 Stimson's American Statute Law, art. 802, § 8021, it is said "the petition for incorporation or articles may be made by a number of persons. * Such persons are in this work termed the promoters; in some states they are called petitioners, in other com

missioners."

"A promoter is a person who brings about the incorporation and organization of a corporation. He brings together the persons who become interested in the enterprise, aids in procuring subscriptions, and sets in motion the machinery which leads to the formation of the

1 Upon the subject of promoters generally, their relation to each other, to the corporation, to the members and to third parties, see infra, pp. 1546–1558, 1767-1769.