47 N.J.L. 286 | N.J. | 1885
The opinion of the court was delivered by
The single question for solution in this case is, whether a certain ordinance passed by the defendant
The particular clause of such ordinance that is supposed to render it liable to the charge of illegality is the following: “ That it shall not be lawful for any person or persons, body or bodies corporate, their engineers, agents or servants, to obstruct or prevent the free and uninterrupted use by the public of the intersections caused by the crossing of any street or thoroughfare by any railroad or track within the limits of Jersey City for a longer period than three minutes at one time.”
Counsel for the plaintiff in error urged three objections to the validity of this by-law, which will be briefly considered seriatim.
Eirst, it was insisted that the defendant in error was not vested by the legislature with the capacity necessary to pass this ordinance.
This position is plainly untenable. To say nothing with respect to the implied power over such a subject, inherent in every municipality, it is sufficient to refer to the sixth and eleventh clauses of the twenty-fourth section of the charter of Jersey City passed in 1871 {Pamph. L., p. 1106,) which authorizes the enactment of ordinances, first, “to regulate and control the running of locomotives, &c., through the streets of Jersey City,” and second, “to regulate the use of streets-and public places by foot passengers, vehicles, railways and engines.”
This language is too plain, in my opinion, to need explanation ; it, in terms, confers the authority upon the city to deal legislatively with the subject matter embraced in the ordinance in dispute.
In the second place, it is urged that the restriction imposed by this by-law illegally interferes with the chartered rights and privileges of the plaintiff in error.
But this exception is also untenable upon the supposition that such restriction is not unreasonable, for it cannot be rationally contended that because the railroad company possesses the franchise to run its trains, that it can run such trains
The third and last ground was that the ordinance in question is unreasonable, and the stress of the argument was properly laid on this point.
If this by-law be subject to this imputation, there can be no doubt that it would be the duty of this court to pronounce it a nullity. The judicial power so to proceed has not been drawn in question in this case, and it would be quite as absurd to say that the city authorities, under the legislative grant of authority heretofore cited, can, unreasonably, restrict the operations of the business of the plaintiff in error within the municipal limits, as was the claim of the railroad company to be beyond all municipal control in the matter. No rational person would contend that a by-law forbidding a railroad company to run its trains through its corporate domain at a faster rate than a mile an hour would be possessed of any legal force whatever, In the case of Commonwealth v. Robertson, 5 Cush. 438, which presented a question as to the reasonableness of an ordinance regulating the mode of placing carriages at theatres and places of amusement, it was said: “ The court, doubtless, have power to .deny effect to a by-law obnoxious because unreasonable. It is, however, a power to be cautiously exercised,” &c. This is a correct expression of the rule of law and the method of its use.
In this department of the law the difficulty has been with the application of this legal principle to various sets of facts. Whether a given by-law be reasonable or the reverse is usually a practical question, and not one that depends on abstract considerations of right or wrong. If we were, in the present instance, called upon to decide upon the matter principally involved in the arguments of counsel, we would be compelled
For affirmance — The Chancellor, Chief Justice, Depue, Dixon, Parker, Reed, Scudder, Browx,, Clement, Cole, Paterson. 11.
For reversal — None.