73 N.J.L. 227 | N.J. | 1906
The opinion of the court was delivered by
This is a rule to show cause why a mandamus should not be issued against the Hudson. River Traction Company requiring it to proceed forthwith to macadamize a section of Park avenue, in the borough of Rutherford, extending from the southerly side of Ridge road to the southerly side of Newell avenue, with six-inch macadam pavement, to be laid from gutter to gutter, as provided in section 9 of an ordinance of the borough, approved March 5th, 1895, whereby the right to construct, maintain and operate a street railway in certain streets within the borough (including Park avenue) was granted to the Union Traction Company, the predecessor in title of the respondent.
The matter has been heard upon an agreed statement of all the facts in the case. From this it appears that the Union Traction Company was incorporated November 2d, 189-1-, under the General Traction act of March 14th, 1893 (Pamph. L., p. 302; Gen. Stat., p. 3235); that, having filed in the office of the secretary of state a description and map of its proposed line of railway, this company, on December 10th, 1894, made application in writing to the mayor and council
It appears that after its passage and approval this ordinance was duly accepted in writing by the Union Traction Company under its corporate seal, and the acceptance filed with the borough clerk, as required by law. Afterwards the company took possession of Park avenue and constructed a double line of railway tracks thereon and operated cars upon it as a portion of its through line of street railway extending from Arlington through the borough of Rutherford to Hackensack.
On November 26th, 1894, the Union Traction Company
After the Hudson River Company acquired its title it was notified in writing by the mayor and council of the borough to proceed to macadamize that section of Park avenue now in
Section 7 of the Traction act of 1893 (Gen. Stat., p. 3237) provides that upon application being made to the common council for a location of street railway tracks, tire council, after advertisement and hearing, “shall either pass a resolution refusing such location, or pass a resolution or ordinance as may be necessary or proper granting the said location, or any part thereof, under such lawful restrictions as they deem the interests of the public may require.” Section 32 of the same act declares in effect that the consent of the council, whether given by resolution or ordinance, when accepted by any corporation created under the act, in a 'writing under its corporate seal, filed with the clerk of the public body, shall have the force and effect of a contract.
It is insisted, however,- by the respondent, that the power conferred by the legislature upon the common council is limited to either denying the application for a local franchise or granting it subject to reasonable restrictions; and it is insisted that the imposition upon the company of the duty to pave with six-inch macadam the whole width of the street is not a reasonable restriction, but an attempted exercise of the power of taxation. Hence it is said that this requirement was ultra vires the municipal corporation.
But the question whether these restrictions are reasonable is a question of fact, and the burden of proof is upon him who asserts that the formal action of a municipal body contains elements so unreasonable as to render the action ultra vires. Ivins v. Trenton, 39 Vroom 501; 40 Id. 451. This rule applies with peculiar force where it is asserted that the unreasonable element consists in its imposition of oppressive burdens upon the recipient of a public franchise, and it appears that the recipient has solemnly accepted the franchise together with the burdens.
The respondent has failed to sustain the burden of showing tire covenant for macadamizing the whole of Park avenue, from gutter to gutter, to be unreasonable. ’ There is nothing in the facts of the case as presented to us from which we can
Nor is this a rash presumption as applied to -the present case. That section of the ordinance which relates to the paving in question (section 9) required that the traction company should replace the macadam pavement in Park avenue in as good condition as it should be found when the tracks were laid therein, and macadamize this avenue, from Depot square to the southerly side of Ridge road, at the time of constructing its road, with six-inch macadam, laid in the same manner as the macadam previously laid thereon, from gutter to gutter; should macadamize the same avenue, from gutter to gutter, in like manner, from Ridge road to the southerly side of Nefrell avenue, within seven years from the passage of the ordinance, and from the latter point to the borough limits in the same manner, from gutter to gutter, within.ten years; that on all other streets where macadam was already laid the company should' replace the same in as good order as found, and keep the street between the tracks and for eighteen inches on either side thereof in good order, and that on streets where no macadam was laid at the time of the ordinance the company should macadamize between its tracks and for the space of eighteen inches on either side, and keep the same in repair.
It will be seen that a discrimination was made, and, as we presume, an intelligent discrimination, between different streets, and between different portions of Park avenue, as to the time and mode of macadamizing, dependent 'no doubt upon varying conditions of travel and improvement.
It is a matter of common knowledge that the ordinary wear and tear arising from the passage of horses and wheeled vehicles upon a dirt road, and to a less degree upon a macadamized street, results in wearing down the surface year by year, so that while still adequate for ordinary travel in the absence of rails laid in the street, the surface must necessarily become in the course of time materially depressed, as com
AATe find, therefore, that in fact the provisions of the ordi
Having so found, it is perhaps unnecessary to say that we have nothing to do here with the established doctrine that the use of the street for a street railroad does not impose an additional servitude upon the abutting property. Citizens’ Coach Co. v. Camden Horse Railroad Co., 6 Stew. Eq. 267; Halsey v. Rapid Transit Street Railroad Co., 2 Dick. Ch. Rep. 380; West Jersey Railroad Co. v. Camden, &c., Railway Co., 7 Id. 31; Kennelly v. Jersey City, 28 Vroom 293; Montclair Military Academy v. North Jersey Street Railway, 41 Id. 229. The question here is not that of an additional servitude imposed upon the owner of the fee, but it is a question of the propriety of action taken by the public authorities empowered to administer the public easement in the street with the view of enabling one party lawfully enjoying the same to do so without unreasonably impairing the enjoyment of the easement by other parties lawfully entitled thereto.
Nor is this case at all ruled by Fielders v. North Jersey Street Railway Co., 39 Vroom 343. In that case it Avas expressly recognized (at p. 363) that the traction company would be bound by any contract it might lawfully have made with the municipality in consideration of the granting of its local privileges. The ordinance there condemned did not partake at all of the nature of a voluntary arrangement, but operated against the company wholly in invilum, and was attempted to be supported under the ordinary police poAvers of the municipality.
'Were we to hold the requirement-for paving Park avenue to be an unreasonable restriction, and therefore unjustified by section 7 of the Traction act, with the result of declaring section 9 of the ordinance ultra vires the municipality, then the whole of the ordinance, including its grant of privileges and franchises, must fall at the same time. For, undoubtedly, the provision for macadamizing is an essential part of the ordinance) without which it presumably would never have been adopted. The same reasoning applies here that is appli
The ordinance before us expressly declares that the covenant for paving is a part of the consideration and a condition of the enjoyment of the franchises and privileges thereby granted. And so we certainly could not eliminate section 9 without at the same time overthrowing the entire ordinance. Davis v. Town of Harrison, 17 Vroom 79, 85; Jersey City v. Jersey City and Bergen Railway Co., 41 Id. 360, 362.
But in our view it is not open to the traction company to raise the question that the grant of its local privileges and franchises was ultra vires the municipal corporation, while at the same time the company retains and uses and enjoys those .privileges and franchises. The plea of ultra vires is not admitted in such circumstances except where it is practicable to restore the status quo ante, and we therefore think the present respondent is estopped from setting up that plea.’ Camden and Atlantic Railroad Co. v. Mays Landing Railroad Co., 19 Vroom 530, 562; Jersey City v. North Jersey Street Railway Co., 43 Id. 383.
It is further insisted that the stipulation between the borough uf Rutherford and< the Union Traction Company for macadamizing is of a character that was calculated to control and restrict the free exercise by the members of the common council of a discretion for the public good vested in them by virtue of their office, and therefore should be reprobated by
It is further argued that, although .the ordinance was binding on the Hnion Traction Company by reason of its acceptance, it is no duty of the respondent to do the paving work in question; that the ordinance at most constituted a contract between the borough and the former company, and that its obligations - have not been assumed by the present company. It seems to us, however, that the burden of paving has devolved upon the respondent, because it must be held in law to have assumed the obligations of its predecessor in title arising out of the ordinance, whether these obligations be considered as merely contractual or as amounting also to an authoritative declaration and acknowledgment of the public duties of a public servant.
The contractual aspect of the matter is' expressly declared by section 32 of the Traction act of 1893 (Gen. Stat., p. 3245), and has been recognized in recent decisions of this court. Jersey City v. Jersey City and Bergen Railway Co., 41 Vroom 360; Jersey City v. Consolidated Traction Co., Id. 364; Jersey City v. Jersey City and Bergen Railroad Co., 42 Id. 367; Jersey City v. North Jersey Street Railway Co., 43 Id. 383.
It is plain, from the express terms of the ordinance before us, that the agreements, restrictions and conditions therein contained, to be observed and performed on the part
But, again, it is, in our opinion, erroneous to treat such a municipal consent, and the acceptance thereof by the street railway company, as imposing obligations of no other or higher' character than those that result from the ordinary contract inter partes. The participants in this transaction are a branch of the lawmaking power of the state, on the one hand, and a corporation organized for-public purposes, on the other. The subject of the treaty is a matter of purely public concern. The company, under the first section of the general act (Pamph. L. 1893, p. 302; Gen. Stat., p. 3235), acquires, upon its incorporation, the power and capacity to
In Wilbur v. Trenton Passenger Railway Co., 28 Vroom 212, the same eminent jurist read the opinion for this court on allowing a peremptory mandamus to compel a traction company to perform a duty assumed by it upon accepting the ordinance of a municipality consenting to its use of the street for its tracks. The opinion concludes with these words: “The respondent, in solemn form, agreed to do that
In Bridgeton v. Traction Company, 33 Vroom 592, a street railway company had applied for and obtained municipal consent for the location, construction and operation of a street railway,' and this had been granted by an ordinance which was accepted by the company. This company leased its railroad and franchises to a second company for a term of nine hundred and ninety-nine years, the second company agreeing to assume all existing contracts relating to the construction and operation of the railway, and stipulating that the lessee would exercise, all the corporate powers and every right, franchise and privilege in respect to the use, management and maintenance of the. railway. A mortgage having been given, the franchises and property came, through a foreclosure, into the hands of a third company, organized by virtue of the act of 1897, already referred to (Pamph. L., p. 229), and this last company refused to operate a certain portion of the .roacl. This court allowed a peremptory mandamus to compel it to resume and discharge its duty as a common carrier of passengers and the exercise of its franchises by operating and continuing to operate the street railway. Mr. Justice Lippincott said: “The statute places the location of the route of a street railroad in the city council, and the design of the statute, as it appears to me, is that the city shall determine that question which so closely affects public convenience, and it cannot; under any circumstances, be left to the company itself to say what portion of its route shall be operated. * * * Upon the respondent in this case the burden and duty of the operation of this road rest. It was assumed by the defendant company under the law in the exercise of its rights, privileges and franchise for the benefit of the public, and therefore it seems clear that their duty in this respect can be and should be enforced by mandamus/’
The above line of reasoning, and the authorities cited, dispose, at the same time, as we think, both of the insistment
In our opinion, therefore, the rule that mandamus is not the proper remedy for the enforcement of contract rights of a private or personal nature, and obligations which rest wholly upon contract and involve no question of trust or public duty (High Extr. Rem., § 25), has no present pertinency.
Moreover, an action for damages would be entirely in-efficacious by reason of the impossibility of estimating the damages. The ordinance in question contains no clause authorizing the municipality, on the traction company’s default, to do the paving and recover from the company the cost of doing it. In the absence of such a clause, we are unable to see that the cost of doing the work could be made the measure of damages. Without this there would seemingly be no pecuniary damage to the municipality as such. The practical detriment would be the absence of street paving, and the loss would fall upon the individuals constituting the pfiblic. But they, under our decisions, could have no action against the traction company. It may be said that a court of equity would restrain the traction company from operating the railway unless the street paving were first done. That, of course, would punish the traction company, but at the same time it would punish the public, for whose benefit the franchise was granted. For the same reason, an action of ejectment by the municipality is not to be considered as an adequate remedy. What the situation requires is not that the company shall be driven from the streets, but that it shall be required to perform its public duty in the premises.
In High Extr. Rem., § 17, it is said: “It is to be borne in mind, in the application of the principle, under discussion, that the existing legal remedy relied upon as a bar to interference by mandamus must not only be an adequate remedy in the general sense of the term, but it must be specific and appropriate to the particular circumstances of the case — that
Such was the view adopted by our Court of Errors and Appeals in Jones Company v. Guttenberg, 37 Vroom 659, 669.
For like reasons it is settled that a mandamus may properly issue, notwithstanding that for failure to do the thing required an indictment would lie. In re Trenton Water Power Co., Spenc. 659; High Extr. Rem., § 18, and note.
So, also, the existence of a possible equitable remedy is no bar to a mandamus, although under certain circumstances it may influence the discretion of a court of law upon application made for the allowance of this writ. The adequate remedy whose existence prevents resort to mandamus must be a legal remedy. State v. Holliday, 3 Halst. 205; High Extr. Rem., § 20.
In the present case, there being, in our view, a clear right on the part of the relator to require the respondent to do the street paving in question, and no other legal process existing for enforcement of this duty, nor even any legal action that would furnish adequate recompense for its neglect, it seems to us the writ of mandamus ought to issue. Since the matter is of public importance, and all the facts in the case are before us, the writ may be peremptory in form.