58 N.J.L. 619 | N.J. | 1896
The ordinance under review was passed in virtue of section 31, subdivision 7, and section 32 of the city charter. Pamph. L. 1863, pp. 118, 123. It is contended by the prosecutor that the ordinance is invalid for two reasons—-first, that it is unreasonable; and second, that it is an invasion of the legal rights of the prosecutor in respect of the company’s exercise of its franchises within city limits. '
The power of the municipality, by ordinance, to make reasonable regulations controlling the operations of street railway companies within the city, is undoubted. The franchise granted to those companies, to use the streets of the-city for railroad purposes, affords no immunity from any police control to which a citizen could be subjected. Trenton Horse Railroad Co. v. Trenton, 24 Vroom 132. The ordinance set aside in the North Hudson' County Railway case was an ordinance requiring the company to pay an annual license fee for each of its cars, the amount of which fee was such as to show that the ordinance was intended for the- purposes of revenue; and the city had not the requisite power to exercise the licensing power to provide revenue. The court distinctly affirmed the validity of ordinances of the character of the ordinance in question, if they were reasonable, and held that the'legislature, when it authorized the use of thé public streets for such purposes, is presumed to have intended that .the grantee of'the franchises should hold its privileges subject to such regulations as are reasonably necessary for the common use of the street for a street railway and for ordinary travel. North Hudson County Railway v. Hoboken, 12 Vroom 71. The subject of municipal regulation of street railroads is fully 'discussed in Booth St. Railw. L., §§ 223-239.
The liability of this company to municipal regulation by the city of Elizabeth' is also affirmed by' the terms of the law under which it holds and exercises its 'franchises. " The main branch of its street railway system was constructed by the Elizabeth and Newark Horse Railroad Company, a company incorporated by'a special act passed March. 25th, 1864. The
The contention of the prosecutor is that the use of salt in removing ice from its tracks is not attended with any inconvenience, discomfort or injurious consequences to the public^, and the ordinance therefore is an arbitrary and unreasonable interference with the company in the management of its property and the conduct of its business. Much evidence on both sides of this controversy, consisting of the testimony of experts taken under the rule, and pamphlets and official reports on the subject, has been laid before the court. Where an ordinance is within the powers granted to the municipality in its charter, the presumption is that it is reasonable, and the judicial' power to declare .it void can be exerted only when, from the inherent character of the ordinance, or from evidence taken showing its operation, it is demonstrated to be unreasonable. Trenton Horse Railroad Co. v. Trenton, 24 Vroom 132, 140; Paxson v. Sweet, 1 Gr. 196 ; Booth St. Railw. L., §§ 224, 230. The ordinance was passed by the unanimous vote of
The second ground on which the ordinance is assailed is that it impairs the company’s franchises to such a degree as to be unlawful. These companies possess franchises acquired under the authority of the state legislature. The argument was that the prosecutor, having complied in all respects with the conditions upon which its use of the streets became entirely lawful to the full extent of its grant of franchises, was, therefore, entitled to have such use of the streets as would enable the company to exercise its franchises therein as fully as authorized by the legislative grant, unimpaired by municipal interference. The power granted to municipal bodies to legislate by ordinance is undoubtedly a grant to a subordinate body, and its legislative acts, when counter to the acts of the state legislature, must therefore give way; but these companies, nevertheless, hold their franchises subject to such municipal regulations as do not unreasonably or unnecessarily interfere with the exercise of the franchises conferred by the legislature. Allen v. Jersey City, 24 Vroom 522.
In considering this ground of objection, the status of these companies in their use of the streets must be borne in mind. A street railroad company uses as its roadbed public streets, provided and improved at public expense, and acquired and held for the benefit and advantage of the public at large. In this respect, such a company occupies a position different from that of a railroad company exercising its franchise's and transacting its business upon a roadbed provided at its own cost and for its exclusive use, except at crossings over streets and highways. The legislature, in authorizing a street railway company to make use of the public streets, intended that the grantee of such privileges should be subject to municipal regulations of a greater scope than would be allowable in the case
In Union Railway Co. v. Cambridge, 11 Allen 287, a city ordinance which absolutely forbade the removal of snow and ice from the tracks of a street railroad, was sustained. The ordinance in question was passed under a statute identical in language with the nineteenth section of the General Street Railway act of 1886, quoted above. The contention on behalf of the company in that case, as it has been on this argument, was that the company, having the franchise to lay down a railway in the streets and run cars upon it, had, as incident to such franchise, a right to do whatever was necessary to make the use available, and therefore the right to remove obstructions of snow and ice which might impede or wholly stop the ran
It is not necessary, under the proofs in this case, to affirm or deny a power in the city government over street railroads as extensive and far-reaching as was held in the opinion of the court in the Cambridge case. The evidence produced by the prosecutor, touching the necessity for the use of salt to remove snow and ice from its tracks, consisted of the testimony of its superintendent. He testified that, in places where the tracks are low and the pavement high, as in Elizabeth avenue, salt is needed to remove the snow; that when the snow gets frozen on the rail, it cannot be got off with a snow plow and sweeper; that the only remedy is to use salt, and that the grades on which salt is required extend only a couple of hundred feet on either side of the Central railroad. He also testified that in the middle of the day the water from the tracks would run to the low places and freeze at night, and in the morning it would be impossible to run the cars unless salt is used on those low places, and that the removal of ice from the track by the use of salt was more necessary when the cars are propelled by electricity than with horse-cars.
This testimony falls short of that measure of proof which would justify the vacation, by the court, of this ordinance.
The writ should be dismissed.