The People v. Common Council of Brooklyn, &c. tion of that objection if it had any foundation, and it should not have been deferred until after the resolution had been adopted by the common council, and at their instance by the legislature, and consequent expensive proceedings been had, and no doubt numerous business arrangements made, on the supposition that the projected improvement would be consummated. There is nothing before me to show that the objection is well founded, and my own examination of the ground, if it is proper to allude to that, has led me to the conclusion that the exclusion of the small part of it which the proposed measure would require, would neither mar its shape nor impair its usefulness. If, as the common council alleges, the park has been assessed at too high a rate, the statutes provide an adequate remedy; they should have made the objection before the commissioners at the time appointed to review their assessments, and when they met in the office of the city counsel. If they had done that, and presented for the consideration of the commissioners a statement of the facts and considerations upon which they relied, no doubt full justice would have been done, especially as the subject was familiar to one of the commissioners, from his professional and official engagements at the city hall. If they had failed before the commissioners, they could still have appealed to the county court, or to a judge of this court, when the report should be presented for confirmation. Having neglected to present their objections to the commissioners, and to adopt the ordinary measures for redress prescribed by the statute, they ought not now to be permitted to resort to the extraordinary remedy of abandonment. If, however, they had made the usual statutory efforts to procure redress and failed, and they had ascertained that the expense to the corporation would have been beyond any benefit which the completion of the proposed measure would have conferred, they might still have discontinued proceedings if the final adoption of the contemplated improvement had been left to their dis cretion. On examining the statute relative to widening Fulton street, The People v. Common Council of Brooklyn, &c. it seems to me that it fully adopts the project, and in effect commands its consummation. Its title is, "An act to widen Fulton street," not to permit the common council to do it; the first section provides that such street is thereby widened, as therein designated, not that it might thereafter be done. The statute operated proprio vigore to change the legal boundaries of the street; such is the plain, obvious and only import of its language; there is no permission given to alter the boundaries, nor is it, nor can it be, supposed that the common council could do that; they were fixed, so too was the entire measure. It was un fait accomplé. Nor is any different intent indicated by the word "authorized," which is twice used in the third section to designate the improvement. The first definition of the verb "to authorize," given by Dr. Worcester in his valuable dictionary, is "to establish by authority," and as that harmonizes with the positive terms used in the title and the first section of the statute, it is no doubt the sense in which it was used by the legislature. It was contended at the bar that the provision in the second section, that the common council may cause application to be made for the appointment of commissioners to estimate and assess the expenses and damages and benefit of the improvement, left it optional with the common council whether to proceed or not, and indicated that the project had not been conclusively adopted and its completion peremptorily ordered by the legislature. But it is a familiar rule that the word "shall" may be substituted for "may," in the interpretation of a statute, when the good sense of the entire enactment would require the change; and the rule applies when, as in this case, the statute establishes an improvement, and devolves upon any person or persons, or a corporation, the performance of such acts as may be requisite to insure its completion. The legislature would not decree the end without making effectual provision for the means. If the statute had simply devolved upon the common council a discretionary power to pursue or abandon the project, it would have been wholly superfluous, as that body had it before. (Act The People v. Common Council of Brooklyn, &c. of April 4, 1850, tit. 4, §§ 1, 2, 3.) There would have been merely a dispensation with the preliminary notice, and the designation of the district of assessment; if, indeed, either had been necessary where the only object was to widen the street, which is doubtful. When the language of a statute is susceptible of two interpretations, by one of which something substantial will be accomplished, and by the other little or nothing, the former should prevail. In that, common sense and law concur. It cannot be supposed that the common council would have applied to the legislature for, or that the legislature would have consented to pass, an act for the sole and insignificant purpose of dispensing with a preliminary notice for the brief period of twenty days. Something more must have been designed by both the municipal and legislative bodies, and that, so far as a judgment can be formed from the circumstances and the language used, must have been the conclusive adoption of the measure by the legislature. The common council may have been inclined to devolve the responsibility of the measure upon the higher power, or to give to it more efficiency than it might have acquired from municipal legislation. Although the power to make this improvement had been devolved upon the corporation by its charter, yet the question as to the right of the legislature to exert what had been previously delegated, could not be raised in this case, as the measure was adopted upon the resolution of the inferior body, and subsequently received its full assent. From the examination which I have been able to give to this case, I am satisfied that the statute is peremptory upon the common council to pursue the designed improvement to its consummation, and as that body has arrested its progress midway, and declines to proceed any farther, a mandamus should be awarded against the common council; another may issue directed to the commissioners, but they should be exempted from the obligation to make any return, on signing a stipulation to abide by such judgment as may hereafter be Wetmore v. Story. rendered against the common council, should that body elect to proceed any farther in this contest. Ordered accordingly. [KINGS SPECIAL TERM, September 1, 1856. S. B. Strong, Justice. Affirmed at a GENERAL TERM in KINGS COUNTY, October 14, 1856, held by Brown, S. B. Strong and Birdsey, Justices.] APOLLOS R. WETMORE, HOWELL HOPPOCK, R. L. STUART and A. STEWART vs. STORY, RADFORD and MURPHY. When the charter of the city of New York, granted in 1830, declared that the legislative power of the corporation should be "vested in a Board of Aldermen and a Board of Assistants," who, together, should form the common council of the city, it must be considered as having adopted, by implication, so far as applicable, the universally recognized principles of le islative bodies, consisting of two independent branches. Hence a resolution, adopted by the board of assistants, in one year, cannot be concurred in by the board of aldermen in another year, so as to make it, without consulting the existing board of assistants, an ordinance of the common council. It must, as in the case of unfinished business in other legislative bodies, be taken up de novo. Accordingly held that the board of aldermen of the year 1853, could not take up, and pass, a resolution of the board of assistants of the year 1852, authorizing the construction of a rail road in the streets of the city, and give it effect as a law, without consulting the newly elected body. Such a resolution, although passed by a board of aldermen and by a board of assistants, is not a resolution of the common council, and, as a consequence, was not confirmed by the act of the legislature, passed April 4, 1854, relative to the construction of rail roads in cities. That act, in excepting from its operation rail roads already "constructed in part," meant those constructed under lawful authority, and not such as were made under grants, licenses, resolutions or contracts which had never been made, given, passed or entered into according to the charter, and which, therefore, having in judgment of law no existence, could not be confirmed. A rail road constructed in the streets of the city of New York under and by virtue of a resolution adopted by the board of assistants, in one year, and concurred in by the board of aldermen in another year, having no warrant for its commencement, and none for its continuance, is not only a public nuisance, but a Wetmore v. Story. public nuisance of which tax payers and owners of property on the streets through which the rails are laid have a legal right to complain, as specially injurious to them in their ingress and egress to and from their places of business. Such a nuisance may be restrained by injunction, upon the application of the parties specially aggrieved. But such parties are not entitled to any compensation, nor to an injunction, on the ground that no compensation has been awarded to them for the land in the streets, claimed by them; inasmuch as, even if they have any title to those lands, their property will not be used for any purpose other than to pursue previously acquired privileges. An authorized rail road in a city is not, per se, a nuisance. When the principal act is sanctioned, that legalizes the temporary obstruction to the public, caused by the prosecution of the appropriate work, and would prevent any effectual action by individuals on account of any consequential injury—although it might be peculiar to them-which should necessarily result from it. But it is otherwise when the rail road is constructed without the requisite authority. Per S. B. STRONG, J. A PPEAL by the plaintiffs from a judgment entered at a special term, dissolving an injunction. The complaint was filed by the plaintiffs, owners of property and tax payers, in the city of New York, to restrain the defendants from constructing a rail road (called the Ninth Avenue Rail Road) through Washington and Greenwich streets, under an alleged grant from the common council of the city, which the plaintiffs insisted was invalid. The injunction restrained the defendants "from entering into, or upon, Greenwich and Washington streets for the purpose of laying or establishing a rail road therein, and from digging up, or subverting, the soil, or doing any other act in those streets, tending to incumber them, or to prevent the free and common use thereof, as the same have been heretofore enjoyed." The defendants, in their answer, insisted upon the validity of their grant, and the power of the common council to make it, and denied that the plaintiffs were the owners of the soil of the streets, but on the contrary alleged that the ownership thereof was vested in the corporation of the city. The cause was tried before Justice COWLES, at special term, without a jury. On the trial the defendants introduced and proved the |