and 82 New York State Reporter. to preserve the paramount intention, so far as it is consistent with the rules of the law, although this may lead to the rejection of some subordinate and secondary provision. People v. McClave, 99 N. Y. 83, 89, 1 N. E. 235. The effort in every case must be to ascertain and carry out the intention of the legislature, and where the use of certain words in a statute is inconsistent with that intention, or makes the whole clause meaningless and absurd, it is the duty of the court to reject those words, when by rejecting them the clear intention of the legislature is carried out. In this particular case, if effect is given to the words "the municipal assembly," it is quite clear that the section cannot take effect until the 1st day of January, 1898; and the act which the legislature says shall not be done after the 4th day of May, 1897, may still be done, in defiance of the express provisions of the law. We cannot accede to any interpretation which involves this manifest absurdity. In an act like this, involving many hundred separate sections, relating to a large number of different matters, it would not be strange to find some loose or careless expressions or superfluous words. It would be very strange were it otherwise. In ascertaining the meaning of any one of the several sections of such an act, it is imperatively necessary to look for the paramount intention of the legislature, and, when that has been ascertained, to carry it out by the application of every rule which has been laid down for the interpretation of written instruments. In this particular case it is not difficult, we think, to ascertain the intention by the application of plain and well-established rules, and that intention is, clearly enough, that section 73 of this act shall take effect at the time when the act was signed by the governor, and that from that time the granting of any franchises, except such as are mentioned in that section, within the territory of the greater city of New York, is forbidden. We have examined the other points suggested by the learned counsel for the appellants, but we find that none of them are necessary to be determined at this time. For the reasons above given, we are satisfied that the conclusion reached by the learned justice at the special term, in granting this injunction, was correct, and that this order must be affirmed, with $10 costs and disbursements. All concur. (23 App. Div. 124.) NORRIS v. WURSTER, Mayor, et al. (Supreme Court, Appellate Division, Second Department. December 28, 1897.) 1. GREATER NEW YORK CHARTER-USE OF STREETS. The provision of section 73, Laws 1897, c. 378 (Greater New York Char ter), providing that, "after the approval of this act," no franchise or right to use the streets, avenues, parkways, or highways of the city should be granted by the "municipal assembly" for a longer period than 25 years, etc., became operative upon May 4, 1897, the date of approval of the act, and applied to the then existing board of aldermen of the city of Brooklyn. 2. COURTS JURISDICTION-REVIEW OF MUNICIPAL GRANT. Where, in a taxpayer's action brought to restrain such a grant by the municipal body, the complaint charges that the members thereof, inspired by corrupt motives, intend to exercise a power they do not possess, and there is evidence that the grant would cause irreparable injury, the jurisdiction of the supreme court to investigate the legality of the grant is not impaired by article 3, § 18, of the constitution. 8. SAME-ACTION BY TAXPAYER. Such an action will lie under the taxpayer's act (3 Rev. St. [9th Ed.] p. 2530, § 1), which, being for the benefit of the public, and intended to prevent fraud, should be liberally construed. 4. INJUNCTION-WHEN GRANTED. In such an action, the facts that the granting of an injunction pendente lite would, in effect, be a final decision, because the term of the board is about to expire, and that, if the injunction were to be denied, the legality of the proposed act could thereafter be determined upon a trial of the action, do not diminish the propriety of granting the injunction if a clear case is made out. Appeal from city court of Brooklyn. Action by John Norris against Frederick W. Wurster, mayor, and others. From an order continuing a temporary injunction, defendants, except Wurster, appeal. Affirmed. Argued before GOODRICH, P. J., and CULLEN, BRADLEY, BARTLETT, and HATCH, JJ. James C. Church, for appellant railroad. Luke D. Stapleton, for appellant aldermen. James W. Gerard, Jr. (John M. Bowers, on the brief), for respondent Norris. GOODRICH, P. J. This is a taxpayer's action, instituted to restrain the defendant Wurster, as mayor of the city of Brooklyn, from approving, and 28 other defendants, constituting the board of aldermen of the said city, from passing over the mayor's veto, if he should exercise that power, two certain resolutions already passed by such board, granting to the other defendants (the East River & Atlantic Ocean Railroad Company and the Nassau Electric Railroad Company) the consent of the common council to the construction, use, and operation of a railroad in certain streets of the city for a period exceeding 25 years. The complaint alleges that on February 3, 1896, an application was made to the board of aldermen by the East River road, praying that the common council would grant consent to said company to the building and operation of double-track street surface roads upon an unusually large number of streets, and for 14 different routes, many miles in extent, and that another application, of the Nassau road, was presented on the same day, of a somewhat more modest character, and relating to one route only. Both applications were referred to the standing committee on railroads, which was appointed at the organization of the board in January, 1896, and consisted of Aldermen Francisco, Haubert, Wassmuth, Thompson, Myers, Hennessy, and Guilfoyle. This committee had hearings on the subject on February 27, March 13 and 30, and on April 10, 1896, and at no subsequent time. But at the time of the customary organization of the board in January, 1897, the membership of this committee was changed. Francisco and Haubert ceased to be members, and their places were filled by Aldermen Tay 48 N.Y.S.-42 and 82 New York State Reporter. lor and Dunne, so that the personality of the committee was materially altered. For some unexplained reason the matter slumbered in the committee room during the remainder of the year 1896, and until November 29, 1897, when the new committee, without any public notice of its intention, made a report in favor of granting the application. There is nothing in the record to show that any public hearing was held before this new railroad committee, or any deliberation had thereon by the committee, public or otherwise, except such as may be derived from the fact that the new committee recommended the giving of the consent. It becomes necessary to refer to the changes which had taken place meanwhile in the condition of the city, as affected by new legislation. The act consolidating the territory of the so-called "Greater New York" became a law on May 11, 1896. The charter of the new municipality was passed by the legislature in May, 1897, and later the act providing for the election of the officers of the new city, under which the new officers were elected in November. The official term of the aldermen was near its end, and they had but a single month to exercise their functions, when suddenly, and on November 29, 1897, nearly 22 months after the original application, and after the passage of the new charter, after the election of the officers for the new municipality, and in the dying hours of the board of aldermen, the sleeping project was aroused from its slumbers. On that day the new committee made a report to the board, recommending the granting of a consent to the defendant the East River & Atlantic Ocean Railroad Company, and submitting resolutions giving such consent; and the board on the same day passed a resolution granting such consent, by a vote of 17 to 5. It is needless to say that the public and any taxpayer might well be startled by the gigantic proportions of the franchise thus suddenly consented to, and, so far as the record discloses, without immediate previous notice to the public, or any other notice except that, as the resolutions state, early in the year 1896, a notice was published in two Brooklyn newspapers of the time when a hearing would take place before the committee. It is clear that no public action was taken by the committee from April, 1896, till November, 1897. The answer of the mayor alleges his intention to veto the resolution, and it was stated on the argument that he had done so. The corporation counsel of the city, appearing for the mayor, in his brief and in oral argument expressed his conviction that the injunction should be continued pendente lite. The consent was, on its face, in perpetuity, and not for 25 years. The only benefit derived by the city and its citizens was that the consent required the company to sell six tickets for 25 cents, and pay the city 3 per cent. of the gross receipts. The complaint alleges that the value of the franchise is a million of dollars; and, while some of the answers deny that this is a true estimate, it is conservative to say that the conditions of payment attached to the consent to such a valuable franchise were not exorbitant. It is unnecessary to say that the consent of the board to a franchise of such generous proportions required the most careful deliberation and consideration by a body to which the public had confided the protection of its interests, and should have been open to public attention, and that the court is called upon to review this action with scrutiny, and a careful regard for the public interests. Some of the questions involved in this appeal have already been passed upon by the learned appellate division of the First department, in the case of Gusthal v. Board (not yet officially reported) 48 N. Y. Supp. 652; and, even if we did not agree with its conclusions, we should hesitate very long before differing therefrom. But we see no reason for any difference. We agree with its conclusion that it was the intention of the new charter that after its passage "the granting of any franchises, except such as are mentioned in that section [section 73], within the territory of the greater city of New York, is forbidden." Section 73 forbids the granting of any franchise to any person or corporation for a longer period than 25 years, with certain provisions for renewal, to which it is unnecessary to refer. The consent before us is unlimited in its term, and is consequently for a period in excess of 25 years; and, adopting the conclusion of the court in the Gusthal Case, we hold that such a consent is unauthorized and illegal. A similar result has been reached by Judge Lacombe, of the United States circuit court, in the case of Seccomb v. Wurster, 83 Fed. 856, based upon similar allegations, in a very learned and elaborate opinion, in which he holds that an injunc tion should issue to restrain the grant of a franchise for more than 25 years. If it were necessary further to refer to the new charter, we might say that it is hardly to be expected that an instrument of such great extent and importance would be perfect, and beyond criticism. The days of miracles and inspiration seem to have passed from the pages of history, and we may look only for reasonable accuracy in the expression of legislative intent in legislative acts. We think the intent of the charter referred to is sufficiently apparent from the scheme of the entire instrument. But the learned counsel for the defendants other than the defendant Wurster insist that in granting the consent the board was performing a legislative act, and is in that respect a branch of the government co-ordinate with the court, and that consequently this court has no power to arrest the execution of these acts. His argument proceeds on the theory that the authority of the board is derived directly from the constitution, without intervention of legislative enactment; and in support of his contention he cites the case of Adamson v. Railroad Co., 89 Hun, 261, 34 N. Y. Supp. 1073, where the general term of the Second department, on appeal from a final judgment, held that in granting consent to the construction of a street railroad the mayor and common council were exercising a legislative power devolved upon them by the constitution; but the court in that case expressly recognized the right of the courts to investigate the power of the board, and to decide whether the granting of the consent was a legal act. The provisions of the constitution (article 3, § 18), in effect, constitute a limitation upon the power of the legislature to pass any law giving to any municipal body the right to authorize the construction or operation of a street railroad, except upon the condition that the consent of the owners of one-half in value of the property and 82 New York State Reporter. bounding on, and the consent of the local authorities controlling, the streets, should be first obtained, or a substituted consent obtained from the appellate division of the supreme court. It does not follow that, because there are words in the constitution creating such a limitation, the legislature can confer upon the local authorities power to consent to such a grant, when the granting is otherwise illegal, or that it may not repeal such power by subsequent legislation; and, as we have said, we have adopted the view that the consent of the board was illegal, being given after the passage of the consolidation act of 1896, and for a term exceeding 25 years. In the Adamson Case the court expressly stated that there was no allegation in the complaint that the aldermen who granted the franchises were corrupt, or that the consents were the product of corruption. Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. 471, was an appeal to the court of appeals from an order of the general term of the Second department affirming an order of the special term granting an injunction pendente lite. The court held that the taxpayer's action authorized by section 1925 of the Code of Civil Procedure was intended to restrain illegal acts on the part of public officials, and that, as the contract was illegal, a temporary injunction was properly granted. One of the allegations of the complaint is that the board of aldermen is not invested with, and does not possess, the right or power to grant to any person the right to occupy the streets for a period exceeding 25 years, and that 17 members of the board have agreed with one another, and with the defendant corporations, to vote to pass the resolution over the mayor's veto, if he should exercise that power. The complaint contains allegations which amount, substantially, to a charge that the defendant aldermen, inspired by corrupt motives, intend to exercise a power which they do not possess. It is undoubted that the court might, after such action of the board, and on trial of the issues herein, decide that the board had no authority to give such consent; but that does not forbid the exercise by the court of the power to restrain pendente lite an absolutely illegal act, provided there is evidence to show that irreparable injury will result to the plaintiff by the attempted exercise by the board of a power which it does not possess. It is evident that some of the defendants, or their counsel, believe that some benefit will result from the reversal of the order granting the preliminary injunction, and it is our duty to ascertain whether some corresponding injury may not result to the plaintiff and the public. It is evident that, if the resolution is not passed over the mayor's veto, there will be lessened litigation, while, if it is passed, citizens and taxpayers will be compelled to extraordinary litigation to undo a wrong, and that the defendant corporations believe that they will have some coign of vantage from which to repel the attacks of their adversaries. It is further contended that no injunction pendente lite should have been granted, inasmuch as the effect of such order is to prevent the board from passing the resolution over the mayor's veto before the expiration of their term of office, and that this would be an inequitable exercise of judicial power, by preventing by indirection what ought to be only directly adjudged, and that no harm can result |