"This is an action in ejectment by which the plaintiff seeks to compel the defendant to remove its railroad tracks and station from Broad street, in the city of Burlington. This case was tried by the court without a jury. The facts are not in dispute.
"The tracks were laid longitudinally in Broad street, under the terms of an agreement between the mayor, recorder, aldermen, and commonalty of the city of Burlington and the Camden & Amboy Railroad & Transportation Company. This agreement was entered into on April 30, 1831. It expressly granted to the Camden & Amboy Company, and its successors, the right to construct through and along Broad street, from the easterly to the westerly extremity of the city of Burlington, the railroad authorized by the act of the Legislature incorporating the Camden & Amboy Company. The company, in consideration for the grant, covenanted to pay to the city the sum of $100 annually during the continuance of the agreement. This rental has since been paid regularly.
"By agreement made the 14th of March, 1868, the city of Burlington granted to the Camden & Amboy Company, for an additional annual rental of $1, the right to erect its station and appurtenances in Broad street and, 'in consideration of said improvements,' the right to lay an additional track in Broad street, from the west side of High street eastwardly to and crossing the Assiscunk creek.
"The right to occupy and operate the railroad of the Camden & Amboy Company was transferred to the Pennsylvania Railroad Company, by lease and contract, dated June 30, 1871. This lease was validated and confirmed by an act of the Legislature passed in 1873 (P. L. 1298).
"In their oral arguments and in their briefs counsel discussed at length the question whether the agreement of 1831, by virtue of which the defendant's predecessor acquired the right to lay tracks in Broad street, was within the scope of the powers granted by the Legislature to the city of Burlington, by the act incorporating that city, passed December 21, 1784, and which was in force at the time of making the agreement.
"If I were to rest a decision in this case on my conclusions with respect to that question, I should be obliged to find adversely to the defendant's contention, in view of the opinion of the Court of Errors and Appeals, in Pennsylvania Railroad Co. v. City of Burlington, 58 N. J. Eq. 547, 43 A. 700. The question to be decided, however, is not whether the original agreement authorizing the laying of the tracks was valid in its inception, but whether the seal of validity has been impressed upon it by legislative sanction, efficaciously expressed.
"In 1895 the defendant attempted to lay an additional track in Broad street. A bill was filed by the city to restrain the company from proceeding with that project. During the course of this litigation the Legislature, in 1896, passed an act which apparently was designed to aid the company in the assertion of its rights in Broad street. This act, P. L. 1896, p. 228, provided, inter alia, that: 'The proper municipal authorities respectively of any city of this state, except cities of the first-class, be and they are hereby authorized and empowered to enter into contracts with any of the railroad companies whose roads now enter or lie within their cities respectively or whose routes have been located therein, granting the said railroad companies or any of them the right to lay their road and construct their tracks in, through, along and upon any of the roads or streets of said cities, * * * and any such contracts heretofore or hereafter made by said cities or any of them with any 'railroad company or companies as aforesaid are hereby fully authorized, ratified and confirmed.' (The italics are mine.).
"In enjoining the company from laying 'an additional track in Broad Street, Vice Chancellor Reed held that the above act was the only evidence of legislative authority that existed in support of the consent originally granted by the city of Burlington to the placing of tracks in Broad street. He then proceeded to examine that act with reference to its constitutional validity. The important question, he declared, was whether the legislation was special. The exclusion of cities of the first-class might be vindicated on the ground that population, having regard to the purposes of the legislation, was a proper basis of classification. But in limiting the application of the statute to cities within which railroads already were constructed
or a route already was located at the time of the passage of the act, the Vice Chancellor held that the legislation was special with respect to a matter as to which the Constitution required that it should be general. He found also that the act was invalid because it granted exclusive privileges to certain corporations, namely, to those railroad companies which had filed their routes prior to the passage of the act, excluding from its operation those corporations which might file their routes after that time. City of Burlington v. Pennsylvania Railroad, 56 N. J. Eq. 259, 38 A. 849.
"In affirming this decision (58 N. J. Eq. 547, 43 A. 700) the Court of Appeals held the act of 1896 unconstitutional in that it violated the provision which forbids the passing of local or special laws 'granting to any corporation, association, or individual the right to lay down railroad tracks.' Mr. Justice Dixon, who spoke for the court, declared that, necessarily, the statute could operate only in past instances, whether the railroad companies or the municipalities were regarded, and that neither the companies nor the municipalities differed from others of similar character, relative to the object of the law, save that they hat mutually executed writings which intrinsically were without legal force.
"The act of 1896 having thus been declared unconstitutional, the Legislature, in 1903, incorporated in the Act Concerning Railroads (Revision of 1903); P. L. 1903, p. 645, § 34. This section reads as follows:
"'In any city, except a city of the first-class, the municipal authorities may permit any railroad company to lay and construct its tracks along and upon any street or highway, and may contract with such railroad company, fixing terms and conditions as to maintenance of crossings, speed of trains and payment of consideration for such use, and may do all things necessary to carry out such contracts, and any such contract heretofore made is hereby ratified and confirmed; provided, that no such railroad shall be constructed along any such street or highway until the company shall have acquired the rights of the owners abutting thereon, by agreement or condemnation proceedings.
"This section later was amended (P. L. 1905, P. 130 [3 Comp. St. 1910, p. 4236, § 34]) so as to make it applicable to elevated structures as well as to surface tracks.
"The defendant, in resisting the plaintiff's effort to enforce the removal of defendant's tracks from Broad street, relies, in part, upon a grant ratified and confirmed by the section of the 1903 Railroad Act above cited. The plaintiff predicates its right to eject the defendant upon the claim that the original grant, or attempted grant, was ultra vires and void, and that the legislation relied upon to confirm it is constitutionally ineffective.
"Thus, as stated by counsel for the plaintiff, the question to be decided in this case is whether the legislation of 1903 cured the defects which inhered in the statute of 1896.
"It is manifest that the purpose of the Legislature in the enactment of section 34 of the Railroad Act was to overcome the constitutional infirmities which had rendered invalid the earlier legislation on the same subject. Whether this purpose was accomplished must be determined by applying those tests to which the prior statute was subjected.
"In the first place, it is to be observed that the single ground upon which the Court of Appeals declared the act of 1896 void was that it violated the provision of the fundamental law which forbids the passing of local or special laws granting the right to lay down railroad tracks. The act was held to be special in that it was based upon an improper classification. The invalidity of the classification arose from the limitation of the application of the law to railroad companies which had, prior to the passage of the act, obtained grants to lay the tracks in question, and to municipalities which had theretofore made such grants.
"Section 34 of the Railroad Act obviously was designed to meet this objection. It applies to all cities, except cities of the first class, and to all railroad companies. It authorizes any city, save a city of the first class, to permit any railroad company to lay its tracks in streets, and to enter into contracts with such railroad company, fixing terms and conditions for the privilege granted, and ratifies and confirms 'any such contract heretofore made.' Such a contract is that entered into between the city of Burlington and the Camden & Amboy Railroad & Transportation Company, the predecessor of the defendant. There would seem to be no question, then, that if section 34...
