author: Cardozo, Ch. J. Crane, J.

text:
    In the Matter of Joseph A. LaRocca, Respondent, against Edward J. Flynn, as Secretary of State et al., Appellants, Impleaded with Others.

      (Argued July 15, 1931;
    decided July 15, 1931.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Amos D. Moscrip of counsel), for Edward J. Flynn, appellant.
    The resolution of the New York city Board of Aldermen is in all respects a constitutional and valid enactment. (Schieffelin v. Goldsmith, 253 N. Y. 243; People ex rel. Cotte v. Gilbert, 226 N. Y. 103; People ex rel. Henderson v. Supervisors, 147 N. Y. 1; People v. Budd, 117 N. Y. 1; People ex rel. City of Rochester v. Briggs, 50 N. Y. 553; Whitney v. California, 274 U. S. 357; Ogden v. Saunders, 12 Wheat. 213.) There is here no unconstitutional delegation of legislative power. (Matter of Gilbert Elevated R. R. Co., 70 N. Y. 361; People v. Long Island R. R. Co., 134 N. Y. 506; Citizens Savings Bank v. Town of Greenburgh, 173 N. Y. 215; Buttfield v. Shanahan, 192 U. S. 470; Cincinnati, etc., R. R. Co. v. Commissioners, 1 Ohio St. 77; People ex rel. Descher v. Session, 222 N. Y. 387; Barto v. Himrod, 8 N. Y. 483; People ex rel. Unger v. Kennedy, 207 N. Y. 533; Bank of Rome v. Village of Rome, 18 N. Y. 38; Clarke v. City of Rochester, 28 N. Y. 605; People v. Fire Assn., 92 N. Y. 311; Matter of 34th St. R. R. Co., 102 N. Y. 343; People ex rel. Wakeley v. McIntyre, 154 N. Y. 628.) Long-continued practice will not be overlooked. (People ex rel. Einsfeld v. Murray, 149 N. Y. 367; Muller v. Oregon, 208 U. S. 412; People ex rel. Snyder v. Hylan, 212 N. Y. 236.)

      Arthur J. W. Hilly, Corporation Counsel (William E. C. Mayer and Charles Horowitz of counsel), for John R. Voorhis et al., appellants.
    The resolution of the Board of Aldermen of the city of New York whereby the Board determined that the office of Surrogate in Richmond county shall be a separate office and that such officer shall be elected, is a valid and constitutional action. (N. Y. Const, art. VI, § 13; art. Ill, § 26; County Law, § 231; Greater N. Y. Charter, § 1586; People ex rel. Weller v. Townsend, 102 N. Y. 430; Needleman v. Voorhis,
      254 N. Y. 399; Matter of Adler v. Voorhis, 254 N. Y. 375; Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202.)

      Alfred V. Norton for David S. Rendt, appellant.
    The terms of the County Judge and Surrogate in the county of Richmond are not coterminous. (Weller v. Townsend, 102 N. Y. 430.) Every presumption is in favor of the constitutionality of an act of the Legislature. (Schieffelin v. Goldsmith, 253 N. Y. 243; People v. Gillson, 109 N. Y. 389.)

      James Burke and Frank H. Innes for Joseph A. La Rocca, respondent.
    The resolution is invalid because the Legislature alone is vested with the authority to separate the office of County Judge and Surrogate, and to provide for the election of a separate Surrogate in Richmond county. (Matter of Sweeney, 12 Misc. Rep. 174; 145 N. Y. 401; Matter of People v. Wurster, 152 N. Y. 345; People v. Palmer, 154 N. Y. 133; O’Reilly v. Utah Co., 87 Hun, 486; Wingate v. Flynn, 139 Misc. Rep. 779; Lewkowicz v. Queen Co., 207 N. Y. 290; People v. Mosher, 163 N. Y. 32; People v. Albertson, 55 N. Y. 50; People v. Comptroller of Brooklyn, 152 N. Y. 399; People v. Gillson, 109 N. Y. 389; Rathbone v. Wirth, 150 N. Y. 459; Baird v. Helfer, 12 App. Div. 23.) The resolution was beyond the powers of the Board of Aldermen under the provisions of the Constitution relating to home rule and under the provisions of the City Home Rule Law. (Matter of Spingarn, 175 App. Div. 806; McGrath v. Grout, 37 Misc. Rep. 64; 69 App. Div. 314; 171 N. Y. 7; Saratoga v. Saratoga Gas Co., 191 N. Y. 138; Matter of Gilbert, 70 N. Y. 361; Schieffelin v. Mills, 241 N. Y. 96; Schieffelin v. Berry, 217 App. Div. 451; McAnning v. Board of Estimate, 232 N. Y. 377; Ledwith v. Rosalsky, 244 N. Y. 406; Prendergast v. Cohalan, 101 Misc. Rep. 712; 179 App. Div. 883; 226 N. Y. 636;
      Matter of Siracusa, 125 Misc. Rep. 882; Rochester v. West, 164 N. Y. 510; People ex rel. Burly v. Howland, 155 N. Y. 270; City of New York v. Village of Lawrence, 250 N. Y. 429; Adler v. Deegan, 251 N. Y. 467.) Unconstitutional statutes cannot be validated by acquiescence or long-continued violations. (Wendell v. Lyon, 246 N. Y. 115; Simpson v. Kempner, 154 App. Div. 674; 208 N. Y. 16; Gardner v. Ginther, 232 App. Div. 301.)

      Charles G. Keutgen for Thomas F. Cosgrove, respondent.
    The power to separate the office of Surrogate from that of County Judge has been intrusted by the Constitution exclusively to the Legislature, and cannot be delegated to local legislative bodies. (Matter of Adler v. Voorhis, 254 N. Y. 375; Opinion of Attorney-General, 7 St. Dept. Rep. 509; Parker v. Board of Supervisors, 106 N. Y. 392; Kingsley v. Bowman, 33 App. Div. 1; Prendergast v. Cohalan, 101 Misc. Rep. 712; 179 App. Div. 883; 226 N. Y. 636; Ledwith v. Rosalsky, 244 N. Y. 406; Healey v. Dudley, 5 Lans. 115; Gardner v. Ginther, 232 App. Div. 296.) The time when the power to create a separate Surrogate may be exercised is only at the end of an incumbent's term or on the occurrence of a vacancy. (People ex rel. Burby v. Howland, 17 App. Div. 165; 155 N. Y. 270; Warner v. People, 2 Den. 272; People ex rel. Wogan v. Rafferty, 208 N. Y. 451; People ex rel. Plancon v. Prendergast, 173 App. Div. 618; People ex rel. Fowler v. Bull, 46 N. Y. 57.)

      Frederic W. Lakr and Ernest T. Lindemann for Alfred L. Breor, respondent.
    The resolution is repugnant to section 13 of article VI of the Constitution of the State of New York. (Matter of Adler v. Voorhis, 254 N. Y. 375; People ex rel. Devery v. Coler, 173 N. Y. 115.) The resolution cannot be sustained under section 231 of the County Law. (Gardner v. Ginther, 232 App. Div. 301; Stanton v. Board of Supervisors, 191 N. Y. 428; Spring v. Wait, 22 Hun, 442; People ex rel. Attorney-General v.
      Kane, 23 Wend. 414; Geraty v. Reid, 78 N. Y. 64; Matter of Church, 92 N. Y. 1; Matter of Healey v. Dudley, 5 Lans. 15.)
   Cardozo, Ch. J.

On June 9, 1931, the Board of Aldermen of the City of New York adopted the following resolution: “ Resolved. That the office of Surrogate in the County of Richmond shall be a separate office and that there shall be elected by the electors of the County of Richmond at the general election to be held in the year Nineteen Hundred and Thirty-one, a separate officer as Surrogate in and for the said County of Richmond for a term of six years, from and including the First day of January, nineteen hundred and Thirty-two. Successors of such Surrogate shall be elected by the electors within said County at the general election to be held in the year at the end of which the term of such Surrogate, or any of his successors, shall expire, or in the event of the resignation or death of the incumbent of such office prior to the expiration of the term thereof, then as provided by law.”

The petitioner, challenging the validity of this resolution, has applied for a mandamus commanding the Secretary of State, the Board of Elections of the city of New York, and the chairmen of the party organizations of the county to refrain from performing their respective functions in giving effect to the resolution and in certifying an election pursuant thereto.

An order of mandamus has been granted, and the case is now here upon an appeal by the officers and chairmen whose action is restrained.

The Judiciary Article of the Constitution of the State, as amended to take effect January 1, 1926, provides inter alia: “ In any county having a population exceeding forty thousand, wherein there is now no separate surrogate, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years ” (Art. VI, § 13).

There was a similar provision in almost the same words in the Judiciary Article of the Constitution of 1894 (Art. VI, § 15); and in the Judiciary Article of the Constitution of 1846 (Art. VI, § 14), both as originally adopted and as amended in 1869.

Section 231 of the County Law (Cons. Laws, ch. 11) is a re-enactment of section 221 of the County Law of 1892, which in turn goes back to statutes enacted by the Legislature in 1871 (Laws of 1871, ch. 859, § 3) and in 1847 (Laws of 1847, ch. 276, § 13).

The statute now in force, which is substantially the same as the earlier ones, provides as follows: “The board of supervisors of any county, except Kings, having a population exceeding forty thousand, may, by resolution at a meeting thereof, determine that the office of surrogate therein shall be a separate office, and provide for the election of such officer therein. The clerk of the board shall immediately deliver the resolution to the county clerk, who shall file the same in his office and, within ten days thereafter, transmit a certified copy thereof to the secretary of state; and thereafter a surrogate shall be elected for such county.”

We think this enactment is not deprived of validity by reason of the fact that the Legislature has delegated to the local authorities the duty of determining the measure of the local needs (People ex rel. Unger v. Kennedy, 207 N. Y. 533).

The locality does not create the court, does not prescribe the powers and functions of a Surrogate. The court is created by the Constitution, which prescribes also the functions of the office and the tenure of the officer. The Legislature, empowered by the Constitution to provide for an election, has said that it will exercise the power thus conferred whenever the governing body of the county shall signify a belief that provision for an election will promote the local interests (People ex rel. Unger v. Kennedy, supra). The locality does no more than declare its willingness and desire to take advantage of a privilege upon the terms and in the manner ordained by the established organs of the State.

The validity of the resolution, if otherwise involved in doubt, is made impregnable through the reinforcement of a practical construction of more than eighty years.

During all that time a like statute has been in force ■ with the acquiescence and the tacit approval of the bar, the bench and the executive officers of the State (See opinion of the Attorney-General printed in the reports of the Attorney-General for 1900, p. 265). Forty-five years ago, this court, in passing upon the validity of other provisions of the act of 1871 (Laws of 1871, ch. 859), gave a summary of the provisions whereby an option was conferred upon the local board, and took their validity for granted. “ Under these provisions,” it was said, “ nearly one-half of the counties, elected to avail themselves of the privilege of choosing separate officers as surrogates, and the duties of the offices of county judge and surrogate throughout the state were thereafter distributed among three classes of persons, viz.: those who performed the duties of both county judge and surrogate, those who discharged those of county judge alone, and those who acted as surrogate only.” (People ex rel. Weller v. Townsend, 102 N. Y. 430, 434). Many Surrogates have been elected and have exercised the functions of their office under the title thus conferred (Opinion of Attorney-General, supra). Only the clearest demonstration of error would justify a belated pronouncement that the office was non-existent and its incumbent an intruder (People ex rel. Snyder v. Hylan, 212 N. Y. 236).

The practical construction supplied by the acquiescence of bench and bar and the executive officers of the State does not exhaust the evidence upholding the action of the Legislature. There is to be added to all this a practical construction by the sovereign people. The successive judiciary articles of the Constitution were adopted, we must presume, with knowledge of a course of legislation and a tenure of office so open and notorious. Instead of an expression of dissent there was confirmation and approval. “ The existing Surrogates Courts are continued, and the Surrogates now in office shall hold their offices until the expiration of their respective present terms ” (Constitution, art. VI, § 13, Judiciary Article of 1926; Constitution, art. VI, § 15, Judiciary Article of 1894).

We do not readily overturn the settled practice of the years ” (Story v. Craig, 231 N. Y. 33, 40).

The practice does not cease to be significant because the Legislature has at times acted of its own initiative. No doubt it had the power to do so if it pleased. So also the practice does not cease to be significant because the local authorities are without power to fix the salary to be paid. An office may exist though no compensation is attached to it (People ex rel. Clark v. Stanley, 66 N. C. 59, 63; State v. Kennon, 7 Ohio St. 547, 558, 559; Mechem on Public Officers, § 7). Whether a statute covering the subject is now upon the books, we do not attempt to rule. If we assume that there is none, the duty to fix a salary will devolve upon the Legislature convening after the election (Constitution, art. VI, § 13), and presumably will be discharged. “ When the surrogate shall be elected as a separate officer, his compensation shall be established- by law, and shall be payable out of the county treasury ” (Constitution, supra). No embarrassment has ensued in the past when new elections were held at the instance of a county. The Legislature has acted at some appropriate time, and has fixed the fitting pay. We must presume that all departments of the government will continue to co-operate in a genuine endeavor to make the Constitution and the statute work.

No conflict is perceived between the provisions of the County Law and those of the Home Rule sections of the Constitution as amended in 1923 (Art. XII, §§ 2, 3, 4).

A Surrogate is not a city officer, but a member of the judicial system of the State (Matter of Adler v. Voorhis, 254 N. Y. 375, 379).

The Home Rule provisions did not have the effect of repealing automatically existing legislation affecting the property, government or affairs of cities; still less any legislation affecting the interests of the State as well as those of the locality.

Again, no conflict is perceived between the provisions of the County Law and those of article III, section 27, of the Constitution to the effect that the Legislature shall, by general laws, confer upon the board of supervisors, or other governing elective bodies, of the several counties of the State such further powers of local legislation and administration as the Legislature may, from time to time, deem expedient.” The powers confided to the locality, though touching matters of State concern, are local, none the less, in the range of their territorial extension (Huber v. People, 49 N. Y. 132; Kerrigan v. Force, 68 N. Y. 381; Ferguson v. Ross, 126 N. Y. 459, 464; Economic P. & C. Co. v. Buffalo, 195 N. Y. 286; Matter of McCabe v. Voorhis, 243 N. Y. 401, 413, 414). Legislation may be local, though the interests affected outrun the bounds of the locality (Ferguson v. Ross, supra; Adler v. Deegan, 251 N. Y. 467, 489, 491). In thus holding we assume' that the delegation of a power so intimately touching the welfare of the State is not to be gathered by implication from words of doubtful meaning (Whitmore v. Mayor, 67 N. Y. 21). Where the meaning is unequivocal, the grant will be upheld.

The Constitution does not require that the action of the local authorities in providing for the election of a Surrogate shall be postponed until the term of the County Judge in office at the date of the resolution shall have expired by lapse of time. The resolution does not take from the County Judge any office that was his at the time of his election. It does not abridge his term. It does not oust him from any post of responsibility or honor. To his office of County Judge the Constitution annexed certain duties which were those of a surrogate. In so annexing them it provided that they might at any time be severed by appropriate legislation. The acceptance of the office was the acceptance of the contingency that inhered in its creation.

Other objections to the resolution have been considered, and have been found to be untenable.

Whatever powers formerly resided in the county Boards of Supervisors in the territory included within the city of New York are vested at the present time in the Board of Aldermen (N. Y. Charter, § 1586; Constitution, art. HI, § 26). •

The question of the justice or wisdom of the proposed separation is not before us. When constitutional power is found to exist, our jurisdiction is exhausted.

The order should be reversed and the petition denied.

Crane, J.

(dissenting). At the general election in 1929, Thomas F. Cosgrove was elected County Judge and Surrogate of Richmond county, for a term of fourteen years. (N. Y. State Const, art VI, § 11.) From the inception of our judicial system the office of County Judge and Surrogate in Richmond county has been filled by one judge performing the duties of County Judge and Surrogate. Shortly after Cosgrove took office the Board of Aldermen of New York city determined to take from him all powers of Surrogate, and thereupon on the 9th day of Jame, 1931, passed a resolution creating the office of Surrogate and providing for the election of a Soirrogate to fill the office at the coming election. The resolution says that the office of the Surrogate of the county of Richmond shall be a separate office and that there shall be elected at the general election in 1931 a separate officer as Surrogate in and for the coornty of Richmond for the term of six years. Nothing is said about his compensation, and I take it that the Board of Aldermen is not competent to fix his compensation. No act of the Legislature has created the office of Surrogate of Richmond county, nor provided for an election to such office; consequently, there is no act of the Legislature fixing compensation for any Surrogate of Richmond county. Strange indeed is it to find a Board of Aldermen claiming the power to create a State office, part of the judicial system of the State, without any power to provide compensation.

Section 231-d of the County Law, as added by Laws of 1926, chapter 815, provides that the compensation of the County Judge of Richmond county will be the same as that of the Judge of General Sessions of the city of New York, but no compensation is made for any Surrogate. How much is this new Surrogate to be paid? If the matter rests entirely in the discretion of the Legislature, it must be that the separation or creation of the office also rests solely with the Legislature. So reads the judiciary article of the Constitution of this State, as amended in 1925. By section 12 of article VI the Legislature may, on application of the Board of Supervisors in any county having a County Court, provide for the election of a Special County Judge or Special Surrogate not to exceed two in any county. Any such Special County Judge or Surrogate shall be chosen at a general election thereafter to be held.

Section 13 of the same article provides for the continuance of the existing Surrogates’ Courts and says: “ The Legislature may provide for the election of an additional surrogate in any county having a population of more than one million.” Right here let us ask whether the Legislature could delegate to the Board of Aldermen of the city of New York this entire power, that is, to provide for the election of an additional Surrogate.

This section further prescribes: “The county judge shall be and serve as surrogate of his county, except where a separate surrogate has been or shall be elected. In any county having a population exceeding forty thousand, wherein there is now no separate surrogate, the Legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years. When the surrogate shall be elected as a separate officer, his compensation shall be established by law, and shall be payable out of the county treasury.”

Note that all the references to the Legislature in these sections are the same. The Legislature shall provide for the election and the Legislature shall fix the compensation. The two things are linked together. It is as necessary for the Legislature to do the one as the other. We are dealing here with a State judicial office. (Matter of Prendergast v. Cohalan, 101 Misc. Rep. 712; affd., 226 N. Y. 636.)

That the Legislature alone had the power to create the office of Surrogate or to separate it from the County Judgeship is evidenced by other provisions of the Constitution. By section 15 of article VI the Legislature may in its discretion authorize the election of one or more additional justices of the City Court in any county within the city of New York. They shall receive the compensation to be fixed by law. No Board of Aldermen here to deal with this increase of city judges and additional burdens upon the taxpayers.

Again referring to section 15, we find that the Legislature may at any time provide that the duties of County Judge and Surrogate in any county be discharged by the same person. The corollary of this must also be true — that the Legislature may provide that the duties of the County Judge and Surrogate be discharged by different persons, not the same person. That the duties and powers of this Surrogate’s Court are within the handling solely of the Legislature is emphasized by the provision that the Legislature may confer upon the Supreme Court in any county having a population exceeding 400,000 the powers and jurisdiction of surrogates.

Section 14 of article VI gives to the Legislature the discretion to authorize the election of one or more additional judges of the Court of General Sessions.

The phraseology is the same in sections 12, 13, 14 and 15. “ The Legislature may provide for the election ” or “ authorize the election ” of Special County Judge, of Special Surrogate, of an additional Surrogate, of a separate Surrogate, of an additional General Sessions Judge, of an additional City Court Judge.

These powers cannot be delegated and passed over by the Legislature to the Board of Aldermen of the city of New York; they rest entirely with the good judgment and the discretion of the Legislature. The separation of the duties of the Surrogate from those of County Judge is the creation of a new office. The word separate ” may sound harmless, but it is here synonymous with create.” The salary of the County Judge and all the expenses are not cut in half; the expenses are more than doubled. The County Judge cannot receive less pay, and no power can reduce his salary during his term of office. The creation of a separate Surrogate means an additional salary, additional clerks, staff and office, so that the action of the Board of Aldermen by its resolution was the same as creating a separate and distinct judicial office. No logomachy can hide the facts.

So far as section 231 of the County Law, being section 221 of the original County Law of 1892, attempts to vest the Board of Aldermen, successor to the Board of Supervisors, with the power to create this office, it is unconstitutional. The Legislature has no power to delegate this authority, especially since the revision of the Judiciary Article in 1925, which is to be taken as complete and self-sufficient when dealing with the courts. (Matter of Adler v. Voorhis, 254 N. Y. 375.) This section says that the Board of Supervisors of any county, except Kings, having a population exceeding 40,000, may by a resolution at a meeting thereof determine that the office of Surrogate therein shall be a separate office and provide for the election of such officer therein.

So far as any counties of the State have acted under this County Law, the office is protected by those provisions of our present Constitution which continue existing Surrogates “ now ” in office. But many, if not most, of the counties of the State have been doubtful of the constitutionality of this law, and have not relied upon it. Thus, Suffolk county, by chapter 330 of the Laws of 1879, procured a separate Surrogate. The act is entitled, “An Act to provide for the election of a surrogate, separate from the county judge of the county of Suffolk, and to fix the salary of said surrogate, and also the salary of the county judge of said county hereafter to be elected.” For Steuben county, see chapter 309 of the Laws of 1883; Cattaraugus, chapter 236 of the Laws of 1857; Clinton, chapter 354 of the Laws of 1881; Essex, chapter 461 of the Laws of 1857; repealed, chapter 4 of the Laws of 1860; Otsego and Saratoga, chapter 779 of the Laws of 1871; Bensselaer, chapter 888 of the Laws of 1872; St. Lawrence, chapter 244 of the Laws of 1847. Time does not permit a completion of the list. The fact that so many counties have sought special legislation indicates that the validity of the County Law was seriously doubted.

Whatever doubts, however, there may have been about the phraseology of previous Constitutions and of the County Law, there can be no doubt since the adoption of the revised Judiciary Article of 1925, which gave to the Legislature alone power and the discretion to separate or create the office of Surrogate in any county. That these powers cannot be delegated see Cooley, Constitutional Limitations (7th ed.), p. 163, and cases; People ex rel. Unger v. Kennedy (207 N. Y. 533); Stanton v. Board of Supervisors (191 N. Y. 428); Village of Saratoga Springs v. Saratoga Gas, E. L. & P. Co. (191 N. Y. 123).

There is a marked distinction between a completed law to be adopted or not according to the vote of a Board of Supervisors or the people of the county and the making of that law by the Board. Creating a Surrogate’s Court with term and salary affixed to be approved or adopted by local authority is different from passing on to the local authority the discretion and power to create the office, fix time of election and leave the compensation to be fixed after election. Whoever heard of an election to an office without a salary, compensation to be fixed after election •—• dependent, perhaps, upon the candidate elected? Such methods strike at the roots of democratic government. What kind of men will run for Surrogate of Richmond county next fall, where no compensation is attached to the office; or the hope of any, and the amount is dependent upon the will of next year’s Legislature? The Constitution contemplates, as the Suffolk county act provides, that the office and salary shall be established by the Legislature previous to election.

The order appealed from should be affirmed.

Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur with Cardozo, Ch. J.; Crane, J., dissents in opinion.

Order reversed, etc.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    The City of New York, Acting by the Transit Commission, Respondent, v. Interborough Rapid Transit Company, Appellant. In the Matter of the Interborough Rapid Transit Company, Appellant, v. William G. Fullen et al., Constituting the Transit Commission, et al., Respondents.

      (Argued June 4, 1931;
    decided July 15, 1931.)

      William L. Ransom, James L. Quackenbush, William D. Guthrie, Jacob H. Goetz and Louis S. Carpenter for appellant.
    The Transit Commission, under section 49 of the Public Service Commissions Law, has power and jurisdiction to regulate the rate of fare of appellant. (Gubner v. McClellan, 130 App. Div. 716; Matter of McAneny, 198 App. Div. 205; 232 N. Y. 377; Matter of N. Y. District R. Co., 107 N. Y. 42; N. Y. & L. I. R. R. Co. v. O’Brien, 121 App. Div. 819; 192 N. Y. 558; Potter v. Interborough R. T. Co., 54 Misc. Rep. 423; Underground Railroad v. City of New York, 193 U. S. 416; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Tinkham v. Tapscott, 17 N. Y. 141; People ex rel. N. Y. & Queens Gas Co. v. McCall, 219 N. Y. 84; People ex rel. Bridge Operating Co. v. Public Service Comm., 153 App. Div. 129; Matter of International Ry. Co. v. Public Service Comm., 226 N. Y. 474; Lincoln Gas Co. v. Lincoln, 250 U. S. 256; United Railways v. West, 280 U. S. 234; People ex rel. South Shore T. Co. v. Willcox, 196 N. Y. 212; Matter of Public Service Comm. v. Interborough R. T. Co., 219 N. Y. 355.) Contract No. 3 superseded the prior contracts in respect of the duration of the lease, the operation of the new system and the rate of fare thereon. (Admiral Realty Co. v. City of New York, 206 N. Y. 110; Matter of Evens v. Public Service Comm., 214 App. Div. 122; 246 N. Y. 224.) The elevated extension certificate does not exclude regulation and increase in elevated fares above five cents. (City of Rochester v. Rochester Ry. Co., 182 N. Y. 99; People ex rel. N. Y. Electric Lines Co. v. Squire, 107 N. Y. 593; Matter of City of Niagara Falls v. Public Service Comm., 229 N. Y. 333; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., 111 N. Y. 132; Matter of Quinby v. Public Service Comm, 223 N. Y. 244.) The Public Service Commissions Law, as adopted in 1907, plainly conferred upon the Public Service Commission plenary jurisdiction to regulate rates and service upon the Manhattan elevated railroad system then being operated by appellant. (Matter of N. Y. District R. Co., 107 N. Y. 42.) Statutory exception in 1910 as to through routes and joint rates on rapid transit railroads clearly recognized the existing power and jurisdiction of the Commission over rates and service on elevated lines. (People ex rel. City of New York v. Nixon, 229 N. Y. 356; People ex rel. Garrison v. Nixon, 229 N. Y. 575; Town of North Hempstead v. Public Service Corp., 231 N. Y. 447; Public Service Comm. v. Pavilion Natural Gas Co., 232 N. Y. 146; Matter of Dry Dock, etc., R. R. Co., 254 N. Y. 305; People ex rel. Ulster & Delaware R. R. Co. v. Public Service Comm., 171 App. Div. 607; 218 N. Y. 643; Matter of Quinby v. Public Service Comm., 223 N. Y. 244; People ex rel. Village of South Glens Falls v. Public Service Comm., 225 N. Y. 216; People ex rel. N. Y., W. & B. R. Co. v. Public Service Comm., 193 App. Div. 445; 230 N. Y. 604; Matter of Evens v. Public Service Comm., 246 N. Y. 224.)
    . Samuel Untermyer, Charles Dickerman Williams and George H. Stover for Transit Commission, respondent.
    Contract 3 is so related to contracts 1 and 2, both of which antedate the Public Service Commissions Law, that the fare provisions of contract 3 are excluded from the regulatory provisions of that law. (People ex rel. Garrison v. Nixon, 229 N. Y. 575; Matter of Quinby v. Public Service Comm., 223 N. Y. 244; 227 N. Y. 601; Matter of Evens v. Public Service Comm., 246 N. Y. 224.) The Rapid Transit Act, as re-enacted subsequent to the enactment of the Public Service Commissions Law, authorized the parties to enter into contract 3 and the certificate, and to agree therein upon a rate of fare to be in effect during the terms of the contracts. (Southern Iowa Electric Co. v. Chariton, 255 U. S. 539; Detroit v. Detroit Citizens Street Ry. Co., 184 U. S. 368; Detroit United Ry. v. Michigan, 242 U. S. 238; Cleveland v. Cleveland City Ry. Co., 194 U. S. 517; Columbus Ry. & Power Co. v. Columbus, 249 U. S. 399; Omaha Water Co. v. City of Omaha, 147 Fed. Rep. 1; Public Service Co. v. St. Cloud, 265 U. S. 352.) Provisions of the two statutes show that it could not have been intended that the Public Service Commissions Law should apply to Rapid Transit Act contracts. The scheme of the statutes is different. (City of New York v. Brooklyn City R. R. Co., 232 N. Y. 463; Reagan v. Farmers Loan & Trust Co., 154 U. S. 362; Manufacturers Ry. Co. v. United States, 246 U. S. 457; Southern Iowa Electric Co. v. Chariton, 255 U. S. 539.) Even if the regulatory provisions in the Public Service Commissions Law originally had modified or repealed the contractual provisions in the Rapid Transit Act, the rate provisions in contract 3 and the certificate nevertheless would have been authorized by the amendments to and re-enactments of the Rapid Transit Act made by the Legislature in 1912 after the enactment of the Public Service Commissions Law and before entry into the contracts. (Village of Fort Edward v. Hudson Valley Ry. Co., 192 N. Y. 139; Carroll v. McArdle, 216 N. Y. 232; Humphrey v. Parsons, 15 N. Y. 595; People ex rel. Stiner v. Morrison, 78 N. Y. 84; Whipple v. Christian, 80 N. Y. 523; Matter of Prime, 136 N. Y. 347.)

      Arthur J. W. Hilly, Corporation Counsel (Edgar J. Kohler, Joseph A. Devery, M. Maldwin Fertig, Harry Hertzoff and Nathan B. Margold of counsel), for City of New York, respondent.
    Subdivision 1 of section 49 of the Public Service Commissions Law was never intended.to empower the Commission to increase the five-cent fare provided for in contracts 1, 2 and 3. (Matter of Quinby v. Public Service Comm., 223 N. Y. 244; Church of the Holy Trinity v. United States, 143 U. S. 457; United States v. Kirby, 7 Wall. [U. S.] 482; Matter of Dry Dock, E. B. & B. R. R. Co., 254 N. Y. 311; People ex rel. City of New York v. Nixon, 229 N. Y. 356; People ex rel. U. & D. R. R. Co. v. Public Service Comm., 171 App. Div. 607; Sun Publishing Assn. v. Mayor, 152 N. Y. 257; Admiral Realty Co. v. City of New York, 76 Misc. Rep. 345; People ex rel. Interborough R. T. Co. v. Tax Commissioners, 195 N. Y. 618; Village of Mamaroneck v. Public Service Comm., 208 App. Div. 330; 238 N. Y. 588; Gilchrist v. Interborough R. T. Co., 279 U. S. 159.) Subdivision 1 of section 49 had no application to the fare provision contained in the elevated extension certificate. (People ex rel. W. S. St. Ry. Co. v. Barnard, 110 N. Y. 548; Public Service Comm. v. Westchester St. R. R. Co., 206 N. Y. 209; People ex rel. Quinby v. Public Service Comm., 223 N. Y. 244; Matter of International Ry. Co. v. Public Service Comm., 226 N. Y. 474; Mayor v. Manhattan R. R. Co., 143 N. Y. 1.)
   O’Brien, J.

By this action and by this special proceeding, the single issue is presented whether authority has been conferred upon the Transit Commission to increase the rate of fare upon subway and elevated railroads operated by the Interborough Rapid Transit Company. No other question is before us.

During the sixth and seventh decades of the last century, response was first made to public demand for additional transit facilities in the old city of New York. Beginning with the experiment of the West Side and Yonkers Patent Railroad and progressing through the organizations of the Gilbert Elevated, the Metropolitan, the New York Elevated and their consolidation with the Manhattan Railway, the present system of elevated railways has been developed. Without financial contribution from government, those lines were constructed and have always been operated by private capital. From time to time during that era of local transit expansion, was enacted a large volume of legislation which related, among other subjects, to construction, operation, supervision and rates of fare. These successive statutes culminated, by chapter 4 of the Laws of 1891, in the passage of the present Rapid Transit Act. Many of the provisions of chapter 606 of the Laws of 1875 were transferred to the Railroad Law (Cons. Laws, ch. 49.) The Rapid Transit Act of 1891, closely following in substance the law of 1875, although subjected to more than forty amendments, has never been repealed. It was under the authority of the act of 1891, as amended by Laws of 1894, chapter 752, and Laws of 1895, chapter 519 (Sun Publishing Assn. v. Mayor, 152 N. Y. 257), that, by contract No. 1, executed during the year 1900 by the city of New York acting through the Board of Rapid Transit Railroad Commissioners, the first subway extending from City Hall through Fourth avenue, Forty-second street and Broadway to Van Cortland Park and West Farms was constructed. It was also by virtue of the same act that, pursuant to contract No. 2, executed during the year 1902 by the city, acting through the same Board, a second subway extending from City Hall to Bowling Green and thence under the East river to Atlantic avenue in Brooklyn was constructed. Both subways were built at municipal expense and are owned by the city, but, by assignments from the original lessees under contracts No. 1 and No. 2, they are and since their construction have been operated by the Interborough Rapid Transit Company. No rate of fare higher than five cents has ever been charged for a continuous passage on these subways. Indeed, contracts No. 1 and No. 2, in chapter III of each contract, entitled The Lease,” expressly limit the rate to a maximum of five cents. In the year 1903 all the property of the Manhattan Railway, which then comprised the entire system of elevated lines in the boroughs of Manhattan and The Bronx, also was leased for a term of nine hundred and ninety-nine years to the Interborough, and these elevated roads have since been operated by it. A five-cent fare had been voluntarily established by the Manhattan board of directors in 1886 and, subsequent to the enactment of chapter 743 of the Laws of 1894, it has been effective on all elevated fines. These elevated and subway roads, extensive as they were, proved inadequate to the constantly-growing passenger traffic and consequently, during the years immediately preceeding 1912, an aroused public interest producing thoughtful official discussions, centered around proposals for additional conveniences of travel.

While these public discussions and official conferences were in progress and the object and purport of a proposed new contract were known to the Legislature, the Rapid Transit Act of 1891 was again amended, this time by chapter 226 of the Laws of 1912, which became effective on April 9th of that year. This record clearly reveals that the amendments of 1912 were drafted by counsel to the Public Service Commission for the First District, that they were by resolution approved by the Board of Estimate and Apportionment of the city of New York, that they resulted from numerous conferences among members of the Commission and of the Board with officers of the Interborough and that among the dominant features of those conferences was the proposed use of all the existing rapid transit lines with such of the contemplated fines as were designed to connect with them on the basis of a universal five-cent fare. Official reports in evidence demonstrate these facts.

The Rapid Transit Act, as amended in 1912, did not in terms render mandatory the continuance of a five-cent fare on all the fines of the old and the proposed new systems. It did, however, by section 27 authorize the execution with the Interborough of the instrument which later became contract No. 3 and it provided, in the event that such a subway contract should include a condition for operation at a single fare, that the terms of operation under contracts No. 1 and No. 2 might be extended. Of cardinal significance is the fact that by the same section 27, re-enácting the provisions of chapter 472 of the Laws of 1906, no contract by the Public Service Commission for construction and operation of subways could become effective without the approval of the Board of Estimate and Apportionment and that every such contract, subject to like approval, should include terms and conditions as to rates of fare. In respect to the elevated lines the same legislative purpose is disclosed. By section 24 approval by the Board of Estimate and Apportionment was required before any grant by the Public Service Commission for the extension of existing lines would be valid. This section also makes the locations and plans of construction and other important features of the right of extension dependent upon such terms, conditions and requirements as to the said boards may appear just and proper.” (Subd. 1.) Subdivision 2 of section 24 directs the preparation and delivery of a certificate setting forth the action taken by the Commission with respect to connecting or extending routes, tracks and facilities. Subdivision 4 defines acceptance by the corporation, in this case the Interborough, as constituting a contract between it and the city according to the terms of the certificate. When these amendments were passed, The Board of Estimate and Apportionment was known by the Legislature to be definitely committed to the principle of a five-cent fare for a single passage on all connecting lines.

On March 19, 1913, in pursuance of that amendatory legislation, the instruments known as contract No. 3, which relates essentially to subways, and the elevated extension certificate, which deals principally with elevated railroads, upon both of which a practical agreement had been reached prior to the passage of the enabling act, were formally executed.

The parties to contract No. 3, executed pursuant to the provisions of the Eapid Transit Act, are the city of New York, acting by the Public Service Commission for the First District as successor to the Board of Eapid Transit Eailroad Commissioners (Laws of 1907, ch. 429, § 5, subd. 6), and the Interborough Eapid Transit Company. To this contract the Board of Estimate and Apportionment gave its approval. Without it, under section 27, as amended by chapter 226 of the Laws of 1912, no contract would be valid. Its general scheme provides for the construction, equipment and operation of approximately fifty miles of new subways. The first of these five additions connects with the old subway at Atlantic avenue, Brooklyn, and extends several miles beyond the former terminus. The others connect: at Forty-second street and Broadway, Manhattan, thence extending through Seventh avenue to the lower part of that borough and under the East river to Borough Hall, Brooklyn; at Forty-second street and Broadway, along Forty-second street and through the Steinway Tunnel into the borough of Queens; at Grand Central Station along Lexington avenue, thence under the Harlem river into the borough of The Bronx; at West Farms and extending in a northerly direction. By article 1 the parties agree upon the modification of Contract No. 1 and Contract No. 2 in the respects herein set forth, but nothing in this contract shall be construed as a modification or waiver of any of the rights or obligations of the respective parties under Contract No. 1 and Contract No. 2 except in the respect and to the extent specifically set forth.” By the same article, the Interborough agrees to contribute toward the cost of construction of the new subways, to equip them and to operate them in conjunction with the old for a single fare. Under article IX its contribution for construction was estimated at $58,000,000, and for equipment at $22,000,000. The city paid $113,000,000. Article LIX provides that the old subways constructed under contracts No. 1 and No. 2 and the new ones to be built under contract No. 3 shall be operated by the Interborough as one complete system and that free transfers shall be given, as required by the Commission, so as to afford a continuous trip for a single fare. Article LXII restricts the fare on the old and new lines to the sum of five cents but not more.”

The elevated extension certificate, issued by the Public Service Commission after approval by the Board of Estimate and Apportionment, authorizes the Inter-borough, at its own expense, to construct, equip and operate “ Railroads.” This term is defined in the certificate as the four new roads to which reference is therein made as the Webster Avenue Line; the Eighth Avenue and 162d Street Connection; the Queensboro Bridge Line; the West Farms Subway Connection. These Railroads ” are extensions of the Second, Third and Ninth avenue elevated lines of the Manhattan Railway Company and connect with subway lines. Article VI directs that the Interborough shall be entitled to charge for a single fare the sum of five cents but not more ” for a continuous trip over the railroads including the parts of the municipal railroad over which the Inter-borough Company is provided with trackage rights as in this certificate provided.” In article IX provision for such trackage rights is made. On the same day an instrument known as the additional track certificate was also issued to the Interborough. It gives the right to construct third tracks on the Second, Third and Ninth avenue elevated lines.

Notwithstanding the fact that the power, by which contract No. 3 was made and the certificate was issued only after approval by the Board of Estimate and Apportionment, springs from the Rapid Transit Act and not from the Public Service Commissions Law- (Cons. Laws, ch. 48), appellant argues that section 49 of the Public Service Commissions Law confers upon the Transit Commission, as successor to the Public Service Commission "for the First District (Laws of 1907, ch. 429, § 5, subd. 6; Laws of 1921, ch. 134), authority to alter the rate of subway fare upon which agreement was reached in contracts No. 1 and No. 2 and in the most unmistakable terms reasserted and again accorded in contract No. 3 and the equally certain rate approved in the elevated certificate. Whatever regulatory jurisdiction there may be over street railways and other common carriers in the city of New York is now vested in the Transit Commission whose duty it is to administer the Public Service Law, but this body possesses no larger measure of authority in respect to fares than the power which had been conferred upon its predecessor by section 49 of the Public Service Commissions Law. Since the enactment of the original Public Service Commissions Law by chapter 429 of the Laws of 1907, the Rapid Transit Act of 1891 has run parallel with it. The later statute is operative throughout the entire State, but the Rapid Transit Act, in form general and in terms applicable to all cities of one million inhabitants, is in fact effective only in the territory included within the city of New York. Nevertheless, it is not “ a special city law.” (Admiral Realty Co. v. City of New York, 206 N. Y. 110, 140.) We refrain from discussing the validity of an increase in fare if one should be made by the sovereign State in the future exercise of some possible legislative right to regulate during the terms of the contract and the certificate. . We think that such a question is not now before us and so we limit our consideration to the effect of existing legislation. Those parts of the final judgment under review which order “ permanently ” the specific performance of contract No. 3 and the elevated extension certificate and which “ permanently ” enjoin defendant from charging a fare in excess of five cents are interpreted by us to indicate merely a reference to the time during which the present statute is in effect.

Consider first the question whether power now resides in the Transit Commission to alter the rate of fare on subways. On March 19, 1913, when the city entered into contract No. 3 with the Interborough, section 49 of the Public Service Commissions Law, as amended by chapter 546 of the Laws of 1911, read in substantial part as follows: “Whenever either commission shall be of opinion * * * that the maximum rates, fares or charges * * * are insufficient to yield reasonable compensation for the service rendered, and are unjust and unreasonable, the commission shall * * * determine the just and reasonable rates, fares and charges to be thereafter observed and in force as the maximum to be charged for the service to be performed, notwithstanding that a higher rate, fare or charge has been heretofore authorized by statute, and shall fix the same by order * * *.” On its face this section seems to be very broad but its words may be susceptible of varying interpretation. Although no reference is made to a lower rate fixed by statute and no mention occurs of a rate, either higher or lower, fixed by contract, a strong argument could, perhaps, be advanced, if the question were still open, that section 49 supplied plenary power to the Public Service Commission, and now to its successor the Transit Commission, to alter rates whether fixed by statute, contract, franchise or by any other method. Doubtless the functions conferred upon the legislative delegate include the power to regulate rates fixed by statute (Matter of Quinby v. Public Service Comm,., 223 N. Y. 244, 263; Matter of Dry Dock, etc., R. R. Co., 254 N. Y. 305, 315), those fixed in municipal franchises granted prior to January 1, 1875, and by franchises granted directly by the Legislature. (People ex rel. Garrison v. Nixon, 229 N. Y. 575; Matter of Evens v. Public Service Comm., 246 N. Y. 224, 228.) Since the date of contract No. 3, section 49 has several times been amended but most of the amendments have been repealed (Laws of 1921, ch. 134; Laws of 1922, ch. 153; Laws of 1923, ch. 891). To-day, with one slight exception, its phraseology, as quoted, has been restored. The expression authorized by statute ” has been changed to authorized by general or special statute.” (Laws of 1921, ch. 134.) By chapter 134 of the Laws of 1921 the word contract ” was inserted, but by chapter 891 of the Laws of 1923 it was .displaced. The same hiatus, at least in words,- respecting contracts, therefore, remains. In 1918 Matter of Quinby v. Public Service Comm, (supra) was decided. We held that rates which had been fixed by contracts executed prior to the enactment of the Public Service Commissions Law were not so clearly within the regulatory power created by section 49 as to require an inference of legislative intent to include them. This was true, at the very least, as to consents exacted by the Constitution (Art. Ill, § 18) and the rationale of the decision apparently includes all prior consents, whether of constitutional origin or not, for any distinction between them would have amounted to a remaking of the statute. Two years later we decided in another case that in respect to contracts executed subsequent to the regulatory law, the intent is more clearly capable of an opposite inference. The obligation of a contract, even more especially one subject to the operation of the police power, is determined by the law in force when it is made. Generally, statutes then existing are read into the contract and municipalities may not by their contracts nullify laws already passed. Yet, “ contracts made after the passage of the statute (Consol. Laws, ch. 48) may conceivably be so related to earlier contracts either by words of reference or otherwise as to be subject to the same restrictions.” (People ex rel. City of New York v. Nixon, 229 N. Y. 356, 362.) When numerous franchises are brought together by consolidation and are operated as a single system, then in the event that a small portion only of the merged line may be considered outside the purview of section 49, the difficulties of administration by public authorities over such a mixture of franchises may result as matter of public policy in the inclusion of the united system. (Matter of Evens v. Public Service Comm., supra.) If the action of the city and the Interborough in entering into contract No. 3 constituted such a specific modification of contracts » No. 1 and No. 2 as to supersede the agreement in relation to the five-cent fare in those earlier contracts, then contract No. 3 in its essence might constitute a new contract made subsequent to the enactment of section 49 and, therefore, might be subject to regulation by the Transit Commission. Our opinion is, however, that instead of superseding or modifying the provisions of the old contracts in respect to rate of fare, the new contract merely adopted them, extended them to itself and incorporated them within itself. This explicit saving clause in contract No. 3 is so significant that difficulties too weighty to be overcome would be met in an endeavor to read it except in a literal sense; Nothing in this contract shall be construed as a modification or waiver of any of the rights or obligations of the respective parties under Contract No. 1 and Contract No. 2 except in the respect and to the extent specifically set forth.” Specifically set forth are modifications of the terms of the leases, of operation, of rentals and of the character of service. Assuming that the right of the city to limit the fare to five cents and the obligation of the Interborough to exact no more, as provided by the old contracts, could reasonably be held to have been waived by implication in contract No. 3, because the carrier agreed to haul passengers a longer distance without additional compensation, certainly no waiver of this right nor of this obligation was " specifically set forth.” On the contrary, the right and the obligation, were expressly reasserted and reaffirmed. The terms of the new contract were drafted in such form as deliberately to exclude any possibility of modification by implication. When the reports of the conference committee of the Board of Estimate and Apportionment reflecting an insistent and persistent policy toward the preservation of the five-cent fare are considered in connection with the acquiescent attitude of the Interborough officers during the process of formulating the terms of contract No. 3, no purpose more remote from nullification or supersession or the slightest modification of such a policy is conceivable. We hold that the possibility of an intimate relationship and a substantial bond of union between contracts executed respectively before and after the passage of section 49, the nature of which was envisioned and presaged by the opinion in the Nixon Case (supra), has matured into a reality. Not only are these contracts akin, “ by words of reference,” but they are connected by every circumstance which brought them forth. Moreover, attaching grave import to the provisions of section 27 of the Rapid Transit Act, as amended by chapter 226 of the Laws of 1912, which required approval of contract No. 3 by the Board of Estimate and Apportionment as a condition precedent to its validity, and giving weight also to the somewhat kindred provisions of chapter 641 of the Laws of 1925, which added section 112 to the Public Service Commission Law, we must conclude, until language more comprehensive than that in section 49 is used, that no legislative intention has been definitively expressed that another administrative body, without municipal consent, might through the force of section 49, afterward destroy the substance of that contract.

Considering now the question of fares on the elevated lines, even though they might be held to have resulted from the provisions of chapter 743 of the Laws of 1894, we reach the conclusion that, partly owing to the compact link in through transit operation between them and the subways, and also in large degree owing to the other factors which influence our judgment in respect to subway fares, the sovereign’s intent to delegate its power of alteration, if such power exists, has not been adequately displayed by any legislation now effective. To allow a change of the rate of fare on the elevated roads and to deny it on the subways might tend to work disruption of the general plan embraced within contract No. 3 and the extension certificate. Although expressions of the detailed purposes of these instruments are incorporated in separate documents, they were executed on the same day and are so interlocked and combined in their common scheme, so inextricably interwoven, that each must be regarded only as part of an integral transaction. Each recites the fact that it is executed under the authority of the Rapid Transit Act. Article III of the contract emphatically repeats that the Rapid Transit Act “is to be deemed a part hereof as if incorporated herein.” The certificate contains at least three affirmations of the controlling force of the Rapid Transit Act and in no instance does it allude to any other statute as the source of power by which it is issued. The inter-mingling of the subject-matter of the two instruments and the extent of the contemplated union in operation of the elevated and subways systems are demonstrated by article LXIX of the contract and by articles VI and IX of the certificate. This is the language of the contract: “ * * * the City reserves the right for the Lessee, as the operator and lessee of the railroads owned by the Manhattan Railway Company, (and for the successors and assigns of the Lessee) upon the terms hereinafter stated, to use the tracks, structures and fine equipment of Subdivision II of the Lexington Avenue Branch, of the White Plains Road Line and of the Queensboro Bridge Plaza portion of the Subdivision II of the Steinway Tunnel Line and of Subdivisions III, IV and V of the Steinway Tunnel Line or of any of them or of any Extensions thereof.” Article VI of the certificate provides: “ The Interborough Company shall be entitled to charge for a single fare for each passenger for one continuous trip in the same general direction over the Bailroads (including the parts of the municipal railroad over which the Interborough Company is provided with trackage rights as in this certificate provided) and the additional tracks (which shall mean the additional tracks authorized by the Commission by certificate to the Manhattan Bailway Company bearing even date herewith) and the Manhattan Bailroad the sum of (5) cents but not more. A trip from any point on the Queensboro Bridge Line (including the part of the municipal railroad over which trackage rights are provided) to any point on the Manhattan Bailroad or on the Bailroads, or a trip from any point on the Manhattan Bailroad or on the railroads to any point on the Queensboro Bridge Line (including the part of the municipal railroad over which trackage rights are provided) shall be deemed a continuous trip in the same general direction.” In article IX of the certificate are embodied these words: “ The City also agrees to provide the Interborough Company with trackage rights over parts of the municipal railroads to be constructed and to be equipped, maintained and operated under a contract bearing even date herewith between the City and Inter-borough Bapid Transit Company and over any extensions of such parts, and the Interborough Company as grantee under this certificate agrees to operate over such parts in conjunction with the Bailroads to the end that through service may be provided over such parts over the Bailroads and over the Manhattan Bailroad.” Then follows in the same article a description of the parts affected by this stipulation. These parts are long sections of several miles in the boroughs of Queens and The Bronx where the subways emerge from the subsurface and are carried on elevated structures. Separation of rates on a continuous trip partly over elevated lines and partly over subway lines, as these roads are defined in the contract and in the certificate, not only would seriously interfere with the avowed purpose of these instruments but, in addition, would create difficulties in administration similar to those which were recognized in Matter of Evens v. Public Service Comm. (supra). The Legislature has not plainly told us that it intended such a result.

; The power of the Transit Commission cannot be taken by implication. It must be given by language which admits of no other reasonable construction. (Siler v. Louisville & Nashville R. R. Co., 213 U. S. 175.) Even if, as an original proposition, section 49 might have been held to exhibit such clarity of legislative intent as to warrant the inference that its purpose was to vest administrative officials with jurisdiction over the alteration of rates after this gravely impressive contract was executed and this certificate was issued, such a time is now long past. Twice prior to the present litigation has this appellant petitioned the Commission to increase its fares and twice, for lack of power, have its petitions been denied. Appellant has presented a memorial to the Legislature and that body has refused to change its mandate. On occasions, the legislative branch of government, of its own volition, has temporarily adopted measures (Laws of 1921, ch. 134; Laws of 1922, ch. 153) which, if acted upon by appellant, might perhaps have afforded it some measure of relief. At the behest of the Governor, that possibility of relief was withdrawn (Laws of 1923, ch. 891) and section 49 was restored to the form which it had assumed when the contract and certificate were made. The insertion by chapter 134 of the Laws of 1921 in section 49 of the words “ contract, grant, franchise condition, consent or other agreement ” and then-removal therefrom by chapter 891 of the Laws of 1923 is most impressive as an indication that since 1923, at least, the Legislature has not intended that power to change rates fixed by contract, except as defined in People ex rel. City of New York v. Nixon (supra), shall rest with the Transit Commission. The legislative construction of this statute (Matter of City of Niagara Falls v. Public Service Comm., 229 N. Y. 333, 340) has been adverse to appellant’s contention. Under the circumstances, courts ought not to interpret it differently from the body which produced it. “ In the absence of clear and definite language conferring without ambiguity jurisdiction upon the public service commission to increase rates of fare agreed upon by the street railroad and the local authorities we should not unnecessarily hold that the legislature has intended to delegate any of its powers in the matter, whatever its powers may be.” (Matter of Quinby v. Public Service Comm., 223 N. Y. 244, 263.) It would be a strained construction of section 27 of the Eapid Transit Act, as amended by the act of 1912, that would permit the Public Service Commission, after contracting subject to the approval of the Board of Estimate and Apportionment, to make, perhaps the next day, a different contract without reference to that approval. Such a construction, a strained one, even if the act of 1912 be considered by itself, becomes wholly inadmissible when it is viewed in the light of later legislation. Not even in a readjustment of the transit situation is the Commission, in the absence of the consent of the municipal authorities, to have power to change existing contracts. (Laws of 1925, ch. 641; Public Service Commission Law, § 112.)

The extremely voluminous records and the thousand and more pages of briefs filed by learned and zealous counsel and embracing the most thorough discussion of the many serious points of law in this important litigation have received our earnest attention and study. After all, as we view the case, these arguments necessarily revolve about the purpose of section 49 of the Public Service Commissions Law. Stress upon matters of mere practice and procedure has been avoided by us, but we have taken these cases on their merits. Intentional absention from prolonging the expression of our opinion concerning each of the arguments to which we have given deliberate consideration is due only to a desire to condense our conclusions and to concentrate them in such degree as may be possible. We feel confident that no essential argument advanced by any party has been overlooked.

The judgment in the action and the order in the special proceeding should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and Hubbs, JJ., concur.

Judgment and order affirmed.


author: Cardozo, Ch. J.

text:
    Cortlandt F. Bishop, Individually and as Executor of and Trustee under the Will of David W. Bishop, Deceased, Appellant, v. Beatrice B. Bishop et al., Respondents.

      (Argued June 9, 1931;
    decided July 15, 1931.)

      Nathan L. Miller, Charles A. Boston and Harold H. Corbin for appellant.
    The plaintiff has been unlawfully deprived of two-thirds of the residuary estate. (Hillen v. Iselin, 144 N. Y. 365; Tucker v. Billing, 2 Jur. [N. S.] 483; Sherman v. Richmond Hose Co., 230 N. Y. 469; Ely v. Megie, 219 N. Y. 136; Ely v. Ely, 163 App. Div. 320; Murray v. Miller, 85 App. Div. 414; 178 N. Y. 316; Matter of Brewsher, 178 App. Div. 381; 221 N. Y. 657; Matter of McGraw, 111 N. Y. 66; Matter of Opdyke, 255 N. Y. 255; Riker v. St. Luke’s Hospital, 35 Hun, 512; 102 N. Y. 742; Fairchild v. Edson, 154 N. Y. 199; Decker v. Vreeland, 220 N. Y. 326; Lefevre v. Lefevre, 59 N. Y. 434; Kerr v. Dougherty, 79 N. Y. 327; People’s Trust Co. v. Smith, 82 Hun, 494; 147 N. Y. 693; Stephenson v. Short, 92 N. Y. 433; Matter of Seymour, 239 N. Y. 259; Matter of Sugden, 249 N. Y. 541.) The rule against undue suspension was violated. (Holmes v. Mead, 52 N. Y. 332; Frick v. Pennsylvania, 268 U. S. 473.) The immediate payment of counsel fees and expenses out of the entire residuary estate unlawfully impaired the plaintiff’s principal and his income from the third share of his father’s residuary estate. (Strong v. Dutcher, 186 App. Div. 307; 2 Heaton Surr. Courts [5th ed.], 271; Jessup Surr. Courts [6th ed.], § 1075; Brinckerhoff v. Farias, 52 App. Div. 256; Matter of Holden, 126 N. Y. 589; Walbridge v. Walbridge, 132 App. Div. 33; Matter of Budlong, 100 N. Y. 203; Matter of Pitney, 186 N. Y. 540; Illensworth v. Illensworth, 110 App. Div. 399; Livingston v. Ward, 248 N. Y. 193; Douglas
      v. Cruger, 80 N. Y. 15; Lent v. Howard, 89 N. Y. 169; Cuthbert v. Chauvet, 136 N. Y. 326; Matter of Hoyt, 12 Civ. Pro. Rep. 208; Noyes v. Beekman, 6 N. Y. 579; Matter of Williams, 187 N. Y. 286; Matter of Ungrich, 201 N. Y. 415; Ellis v. Kelsey, 241 N. Y. 374; 242 N. Y. 495; Smith v. Johnson, 200 App. Div. 811.)

      Winthrop H. Kellogg for Beatrice B. Bishop, respondent.
    The entire residuary estate of the testator is now held in trust for the benefit of plaintiff for bis lifetime and the plaintiff’s individual interest under the will is limited to that life interest. (Matter of Stewart, 131 N. Y. 274; Matter of Harbeck, 161 N. Y. 211; Commonwealth v. Williams, 13 Penn. St. 29; North Adams Nat. Bank v. Commissioner, 167 N. E. Rep. 294; Greenough v. Osgood, 235 Mass. 235; Rae Co. v. Courtney, 250 N. Y. 271; Matter of Smith, 237 N. Y. 562; Close v. Farmers Loan & Trust Co., 195 N. Y. 92; Mee v. Gordon, 187 N. Y. 400; Howland v. Clendenin, 134 N. Y. 305; Striker v. Mott, 28 N. Y. 82; Smith v. Scholtz, 68 N. Y. 41; Matter of Gorges, 120 Misc. Rep. 171; Williams v. Boul, 101 App. Div. 593; 184 N. Y. 605; Home v. Lippardt, 70 Ohio St. 261; American Baptist Home Misson Soc. v. Bowman, 297 Fed. Rep. 438; Riker v. St. Luke’s Hospital, 102 N. Y. 742; Edson v. Bartow, 154 N. Y. 199; Cochrane v. Schell, 140 N. Y. 516.) The right of the defendant to the remainder interests in the first and second shares of the residuary estate was correctly determined. (Curdy v. McCallum, 186 Mass. 464; Bliven v. Seymour, 88 N. Y. 469; Phillips v. Phillips, 112 N. Y. 197; Smith v. Floyd, 140 N. Y. 337; Collister v. Fassitt, 163 N. Y. 281; Furniss v. Cruikshank, 230 N. Y. 495; Close v. Farmers Loan & Trust Co., 195 N. Y. 92; Mee v. Gordon, 187 N. Y. 400; Matter of Moore, 152 N. Y. 602; Smith v. Floyd, 140 N. Y. 337; Matter of Hoffman, 201 N. Y. 247; Smith v. Scholtz, 68 N. Y. 41; Tyson v. Blake, 22 N. Y. 558; Matter of McLaughlin, 111 Misc. Rep. 512; Matter of Groth, 128 Misc. Rep. 905; Webel v. Kelly, 111 App. Div. 521; Lytle v. Beveridge, 58 N. Y. 592; West v. Murphy, 197 N. C. 488.) There is neither repugnancy nor illegality in the proviso clause. (Farmers Bank v. Hale, 59 N. Y. 53; Roseboom v. Roseboom, 81 N. Y. 356; Snedeker v. Congdon, 41 App. Div. 433; Banger v. Banger, 156 N. Y. 429; Fowler v. Ingersoll, 127 N. Y. 472; Vanderzee v. Slingerland, 103 N. Y. 47; Brown v. Gardner, 233 N. Y. 261; Matter of Gardner, 140 N. Y. 122; Howland v. Clendenin, 134 N. Y. 305; Herzog v. Title G. & T. Co., 177 N. Y. 86; Crozier v. Bray, 120 N. Y. 366; Kent v. Morrison, 153 Mass. 137; Fearing v. Swift, 97 Mass. 413; Simonds v. Simonds, 112 Mass. 157; Shattuck v. Balcom, 170 Mass. 245; Van Nostrand v. Moore, 52 N. Y. 20; Noble v. Thayer, 19 App. Div. 446; Turnbull v. Whitmore, 218 Mass. 210.) No provision of the will violates the New York statutes, or the Massachusetts rule, against perpetuities. (Dammert v. Osborn, 140 N. Y. 30; Despard v. Churchill, 53 N. Y. 192; Chamberlain v. Chamberlain, 43 N. Y. 424; White v. Howard, 46 N. Y. 144; Cross v. U. S. Trust Co., 131 N. Y. 330; N. Y. Life Ins. & Trust Co. v. Viele, 161 N. Y. 11; Dupuy v. Wurtz, 53 N. Y. 556; Dec. Est. Law, § 47; Cross v. United States Trust Co., 131 N. Y. 330; Matthews v. Studley, 17 App. Div. 303; 161 N. Y. 633; Trask v. Sturges, 170 N. Y. 482; Schermerhorn v. Cotting, 131 N. Y. 48; Jackson v. Phillip, 14 Allen, 539; Schettler v. Smith, 41 N. Y. 328; Matter of Trevor, 239 N. Y. 6; Hillen v. Iselin, 144 N. Y. 365.) The allowance should not be charged entirely against the third share of the residuary estate. (Williams v. Sage, 180 App. Div. 1; Trustees v. Greenough, 105 U. S. 527; Smith v. Johnson, 200 App. Div. 811; Matter of Roosevelt, 131 Misc. Rep. 800; Atwater v. Elkhorn Valley Coal-Land Co., 184 App. Div. 253; 227 N. Y. 611; Schoenherr v. Van Meter, 215 N. Y. 548; Strong v. Dutcher, 186 App. Div. 307; Woodruff v. N. Y. R. R. Co., 129 N. Y. 27; Bailey v. Buffalo Loan Co., 214 N. Y. 689; Smith v.
      Smith, 4 Paige’s Eq. 271; Jessup v. Smith, 223 N. Y. 203; Matter of Ungrich, 201 N. Y. 415; Ellis v. Kelsey, 241 N. Y. 374.)

      William G. Barr for St. Luke’s Hospital, respondent.
    The exercise of the power by the widow appointing in favor of plaintiff resulted in placing her trust share in trust for his life. (Real Prop. Law, § 177; Sugden Powers [8th ed.], 521; McLean v. McLean, 174 App. Div. 157; Hillen v. Iselin, 144 N. Y. 374; Austin v. Oakes, 117 N. Y. 577; Thayer v. Rivers, 179 Mass. 280.) The proviso is not repugnant to the prior clauses of article 9 of the will but is a fundamental part of the testator’s clearly expressed testamentary plan. (Taggart v. Murray, 53 N. Y. 233; Coleman v. Beach, 97 N. Y. 553; Crozier v. Bray, 120 N. Y. 366; Howland v. Clendenin, 134 N. Y. 305; Herzog v. Title G. & T. Co., 177 N. Y. 86; Mee v. Gordon, 187 N. Y. 400; Close v. Farmers L. & T. Co., 195 N. Y. 92; Matter of Bearse, 167 App. Div. 415; Callahan v. Volke, 220 App. Div. 379; Matter of Weiss, 124 Misc. Rep. 413; Matter of Buechner, 226 N. Y. 440.) In the shares which remain in trust for the life of plaintiff, the remainder is given to bis issue living at his death. The gift arises from the express provisions of the will and also by clear implication from the language used. (Bliven v. Seymour, 88 N. Y. 469; Curdy v. McCullum, 186 Mass. 464; Mee v. Gordon, 187 N. Y. 400; Matter of Moore, 152 N. Y. 602; Close v. Farmers Loan & Trust Co., 195 N. Y. 92; Smith v. Floyd, 140 N. Y. 337; Matter of Hoffman, 201 N. Y. 247; Matter of McLaughlin, 111 Misc. Rep. 905; Webel v. Kelly, 111 App. Div. 521; Metcalf v. Framingham Parish, 128 Mass. 370; Sanger v. Bourke, 209 Mass. 481; Stearns v. Fenno, 227 Mass. 247; Nowland v. Welch, 88 Md. 48; Eldred v. Shaw, 112 Mich. 237; Love v. Walker, 59 Ore. 95; Cross v. Hock, 149 Mo. 325; Ball v. Phelan, 94 Miss. 293; Estate of Blake, 157 Cal. 448; Beilstein v. Beilstein, 194 Penn. St. 152.) If the appellant is the outright owner of the first and second shares, he should be compelled to satisfy those shares out of the New York property only so far as possible so that the Massachusetts property shall be available for distribution to the charities if the plaintiff dies without issue. (Fargo v. Squiers, 154 N. Y. 250; Farmers Loan & Trust Co. v. Kip, 192 N. Y. 266; Matter of Terwilliger, 135 Misc. Rep. 170; 230 App. Div. 763; Maynard v. Maynard, 108 Misc. Rep. 362.)

      George W. Martin, Grenville T. Emmet and Richard S. Emmet for Bank of New York and Trust Company, respondent.
    The proviso should not be rejected as ineffectual, repugnant and obscure. The courts must take the will as written and carry out the testator’s intent as he expressed it. (Howland v. Clendenin, 174 N. Y. 305; Close v. Farmers Loan & Trust Co., 195 N. Y. 92; Mee v. Gordon, 187 N. Y. 400; Hallinan v. Skillen, 253 N. Y. 550; Matter of McFadden, 135 Misc. Rep. 690; Matter of Giegerich, 135 Misc. Rep. 600; Matter of Smith, 128 Misc. Rep. 96; Matter of Groth, 128 Misc. Rep. 905.) Under the provisions of the will as construed no part of the residuary estate could possibly remain in trust for a period longer than two lives and the trusts are valid in toto. (Hillen v. Iselin, 144 N. Y. 365; Matter of Terwilligar, 135 Misc. Rep. 170; Schettler v. Smith, 41 N. Y. 328; Tiers v. Tiers, 98 N. Y. 568; Matter of Durand, 250 N. Y. 45; Matter of Wilcox, 194 N. Y. 288; Matter of Trevor, 239 N. Y. 6; Bailey v. Bailey, 97 N. Y. 460; U. S. Trust Co. v. Webb, 110 Misc. Rep. 683; Matter of Hurlbut, 51 Misc. Rep. 263.)

      George N. Whittlesey for The Children’s Aid Society? respondent.

      Francis Smyth for The New York Association for Improving the Condition of the Poor, respondent.

      John H. Johnson and Stephen G. Williams for New York Home for Incurables, respondent.
   Cardozo, Ch. J.

This action involves the construction of the ninth article of the will of David Wolfe Bishop, the elder, who died in 1900, a resident of Massachusetts, leaving a wife, Florence V. C. Bishop, afterwards Mrs. Parsons, and two sons, Cortlandt F. Bishop and David Wolfe Bishop, Jr.

By the article in controversy the residuary estate was divided into three shares upon trusts and limitations substantially as follows: One share to be held in trust for Mrs. Bishop during her Ufe with power to appoint the remainder to her sons and their issue in such proportions as she chose, and in default of such appointment to the sons equally or their issue; a second to be held in trust for David dining his life, remainder to his issue, and in default of issue to the brother Cortlandt if then surviving, and, if not, to the issue of such brother; and a third to be held in trust for Cortlandt during his life, remainder to his issue, and in default of issue to the brother David, if then surviving, and, if not, to the issue of such brother.

The limitations thus summarized would have been too clear, if they had stood alone, to raise a problem of construction. They were succeeded, however, by a proviso which limits their generality "and obscures their meaning.

The proviso is the following:

“ Provided, however, as to all the foregoing provisions of this article of my will in favor of my sons, both direct and those to take effect upon the decease or remarriage of their mother, that they are upon the proviso and condition following, that is to say:
It is my wish that my estate shall go to my descendants, and if there shall not be issue of my sons to whom it can go, that in considerable part it shall go for charitable uses and purposes. This will, I know, be in accordance with the wishes of my dear wife. I feel confident that my sons will second my desire in this regard. I do therefore provide if and to the extent that the law will permit, in the event that both my sons shall die without surviving issue, that there shall be paid upon the death of the survivor, from my residuary real and personal estate, to my cousin, Mrs. Mary Augusta Alexander, of Augusta, Georgia, the sum of Five hundred thousand dollars (1500,000), the same in the case of her death to go to those persons who by the laws of the State of New York would take, and in the shares in which they would take, the same as personal property if she had died possessed thereof intestate; that in such case, that is to say, in and to meet the case that my two sons shall both die without surviving issue, each one shall have the right by Will to dispose, absolutely, of two hundred thousand dollars ($200,000) from my residuary estate; and that the residue shall go, and if and to the extent that the law will permit, I give; devise and bequeath the residue as follows: One-third thereof to St. Luke’s Hospital in the City of New York; one-sixth thereof to the New York Home for Incurables; one-sixth thereof to the Children’s Aid Society; one-sixth thereof to the New York Association for Improving the Condition of the Poor, and one-sixth thereof to the Catharine Mission, founded by my dear wife. If the said Catharine Mission shall not be or become incorporated so as to be able to take such one-sixth, or if either of the other institutions shall be unable to take the share left to it, I direct that the share or shares which shall thus fail shall go to and be divided among the other of the said institutions in the proportion of two parts thereof to St. Luke’s Hospital and one part to each of the others. And in order that this provision, as far as possible, may have effect, I do further will and provide that during the lives of my sons respectively, all part of my residuary estate which under the foregoing provisions hereof would go to them, shall remain with the Trustees herein appointed, and their successors, upon the special trust and confidence, to have and to hold the same for and during the term of his natural life, to receive the income, rents, issues and profits thereof, and to apply the same to his use, maintenance and support. If it shall so happen that this provision of my Will can take effect in part, and only in part, and that by law a part of my residuary estate, if my sons shall both die without issue, must eventually go to the surviving son, then it is my will and I do provide that there shall not be given to him the power to appoint any portion of my residuary estate by will, but that the amount which will certainly come to him shall be treated as the equivalent of such power of appointment.
“ If in any respect any provision of my Will in whole or in part shall prove to be invalid, such invalidity shall only affect the part of such provision which shall be invalid. In all other respects my Will shall stand as if such invalid provision had not been made, and it shall fail to the extent, and only to the extent, that such provision shall be invalid.”

David Wolfe Bishop, Jr., died in 1911, without issue, leaving a will by which his entire estate, both real and personal, was given to his mother.

Florence V. C. Bishop, the mother (then Mrs. Parsons), died in 1922, leaving a will by which she appointed to her son Cortlandt the share of her husband’s estate that had been held in trust during her life. She also made him her residuary legatee and devisee.

The sole issue of Cortlandt is a daughter, Beatrice Bend Bishop, now Beatrice Bend Berle.

The question of construction arises with reference to the respective interests of Cortlandt and his issue in the first and second shares.

As to the second of the three shares, we agree with the Appellate Division in its holding that the gift over to Cortlandt upon the death of David without issue was cut down and qualified by force of the proviso. The effect of that proviso is to substitute for the gift of the fee a trust estate for Cortlandt during his life, with remainder to his surviving issue, and in default of such issue to the charities, subject only to a gift of $500,000 to a cousin, or to the successors in interest of such cousin, and subject as to $200,000 to a power of appointment. The gift to the issue is not declared in so many words, but it results by necessary implication (Mee v. Gordon, 187 N. Y. 400; Matter of Hoffman, 201 N. Y. 247). To refuse such implication would be to thwart the end and aim of the proviso, the preservation of the estate for the use of the descendants. Whether the contingent remainders to the charities in default of issue then surviving are valid or invalid is a question not before us. The Appellate Division reserved any determination in respect of those remainders until such time as a failure of issue might make the gifts important. The discretion thus exercised is not subject to revision here.

As to the first of the three shares, the one held in trust for the wife with a power of appointment, there is a question as to the suspension of the absolute ownership. The determination of this question does not affect the disposition of the real estate in the State of Massachusetts, where the rule as to perpetuities differs from our own. It does not affect the disposition of the personalty, for as to this also the validity of the will is governed by the law of Massachusetts, the State of the testator’s domicile (Dammert v. Osborn, 140 N. Y. 30; Cross v. United States Trust Co., 131 N. Y. 330; Decedent Estate Law; Cons. Laws, ch. 13, § 47). What follows is to be understood as limited to that part of the subject-matter of the trust for the benefit of the wife which is made up of real estate in the State of New York.

As to real estate so situated the gift to issue or descendants surviving the two sons suspends the vesting of the remainders for more than two lives in being at the death of the testator. The power of alienation is suspended during the life of the testator’s wife, and then, by force of the proviso, during the life of her son Cortlandt, the appointee under the power. At this point the remainders to be valid should have been so framed by the testator that to a certainty they would vest in interest (Matter of Wilcox, 194 N. Y. 288). But they were not framed in such wise that this certainty existed at the time of the testator’s death. We put aside the possibility that the donee of the power might have exercised it in some other way than the one that she selected. This possibility will not avail without more to invalidate the gift if the way chosen was lawful (Hillen v. Iselin, 144 N. Y. 365, 378, 380). The appointment under the power is to be read into the will by which the power was created and the validity of the gift determined as if the provision thus incorporated had been there from the beginning (Dana v. Murray, 122 N. Y. 604, 616; Hillen v. Iselin, supra). When the two instruments are thus united, the life estates are kept within the lawful period of suspension, but not the ulterior limitations for the benefit of descendants. The testator has declared his will that at the end of the two lives the shares shall be released from the restrictions of the trust, but not from this alone does a certainty arise that with the termination of the trusts the remainders shall be absolute, unaffected by contingencies of birth or death thereafter. Those contingencies are not to cease until both the sons have died and their issue have been thus determined. Until that event arrives, the class of devisees may be augmented or diminished. The gift is not confined to the issue of the son for whom the trust has been established. The issue of both sons — all who can qualify as descendants of the testator — are to share in the division. The gift is not final till the class is ascertained. It so happens that the son David died without issue during the lifetime of his mother and of Cortlandt with the result that at the death of Cortlandt the class of issue will be ascertainable without the contingency of change. The validity of the gift must, however, be determined according to the possibilities that' were present at the death of the testator (Matter of Wilcox, 194 N. Y. 288). The will was valid then or never. Unknown and nnknowable it then was whether David would die before his brother; unknown and unknowable whether he would die with descendants or without them. If David were alive to-day, the first of the three shares, though appointed by the mother to the use of Cortlandt solely, would pass to a class made up of the issue of the brothers. Not till both were in their graves could the members of the class be numbered. The result is a postponement of the vesting beyond the statutory term (Matter of Wilcox, supra; Walker v. Marcellus & O. L. Ry. Co., 226 N. Y. 347).

The invalidity of the gift to issue following the trust for Cortlandt carries with it as a consequence the invalidity to a like extent of the trust engrafted by the proviso upon the subject-matter of the power. By the express declaration of the testator, the only purpose to be served by cutting down the gift in fee and impressing it with a trust during the lifetime of the son to whom the fee would have passed if the proviso had been omitted, is to make it possible to give effect to the remainders that are to preserve the estate for the use of the descendants, and in default of them, for charity. If the remainders are destroyed, the trust is a futility. The testator’s state of mind in that contingency is not a subject of speculation merely. He has expressed it in the will. He has told us in substance that he has no wish for the trust except in aid of the remainders. Strike out the remainders for the issue and the charities, and the consequence will be, if the trust is to be preserved, that Cortlandt will have a remainder in fee, devisable and alienable, dependent upon a trust for his own use to continue during life. Such a remainder will be upheld, if the testator was willing to create it (Roane v. Mercantile Trust Co., 160 N. Y. 494). It cannot be upheld under this will without thwarting the declared purpose to make the trust an instrument whereby to effectuate remainders supposed to be valid and now determined to be void.

We are not forgetful of the directions of the testator as to the severance of the good from the bad in the event of partial invalidity. Like directions are not unusual now-a-days in ordinances and statutes. The decisions are to the effect that the declaration of a will to sever is an aid to construction; not an inexorable command ” (Dorchy v. Kansas, 264 U. S. 286; Williams v. Standard Oil Co., 278 U. S. 235, 241; cf. Moffat Tunnel Improvement District v. Denver & St. L. Ry. Co., 45 Fed. Rep. [2d] 715, 731). A point there must be, both for statutes and for testaments, at which severance is not surgery, but useless mutilation. We think that point is reached when what is expressly declared to be an adjunct, in promotion of a larger end, is given a separate existence after the end has come to naught.

The annulment of the trust and the dependent remainders to the extent stated in this opinion will relieve the son Cortlandt from the duty of restoring to the trust the moneys adjudged by the referee to have been wrongfully withdrawn in so far as those moneys shall be found to have been the proceeds of real estate in New York devised to him by his mother under the power of appointment.

The judgment of the Appellate Division modifying and as modified affirming the referee's judgment of July 23, 1929, should be further modified in accordance with this opinion in respect of any real estate situated in New York and included in the first share of the residuary estate, and in respect of the requirement for the restoration to the trust of any proceeds of such real estate withdrawn by the plaintiff, and as so modified the judgment should be affirmed with costs to all parties appearing and filing briefs in this court payable out of the estate.

The judgment of the Appellate Division affirming the referee’s judgment of October 1,- 1929, whereby the counsel fees and expenses of the defendant Beatrice Bend Berle in the sum of $25,326.60 were declared to be a charge upon the entire residuary estate should be modified by exempting the first of the shares of said estate to the extent of any New York real estate included therein from the charge thereby imposed, and as modified affirmed, without- costs.

The form of the remittitur may be settled upon notice.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.