Mayor v. Jersey City & B. R. Co.

• Citation: 57 A. 445,70 N.J.L. 360
• Parties: MAYOR, ETC., OF JERSEY CITY v. JERSEY CITY & B. R. CO.
• Decision Date: 29 February 1904
• Court: United States State Supreme Court (New Jersey)

57 A. 445

70 N.J.L. 360

MAYOR, ETC., OF JERSEY CITY

v. JERSEY CITY & B. R. CO.

Supreme Court of New Jersey.

Feb. 29, 1904.

(Syllabus by the Court,)

Action by the mayor and aldermen of Jersey City against the Jersey City & 'Bergen Railroad Company. Demurrer to declaration overruled.

Argued November term, 1903, before GUMMERE, C. J., and SWAYZE, HENDRICK SON, and DIXON, JJ.

Gilbert Collins, for plaintiff.

Frank Bergen, for defendant,

DIXON, J. In this declaration the plaintiff, the mayor and aldermen of Jersey City, alleges that by "An act to incorporate the Jersey City & Bergen Railroad Company," approved March 15, 1859, that company was authorized to construct and operate a railroad through certain streets of Jersey City, provided that, in constructing the railroad through any of the streets of the city, the consent of the common council of the city should first be obtained. The pleading further sets forth that, by ordinance adopted December 20, 1859, the common council consented to the construction of the railroad through several streets of the city, on condition that the company should pay to the city annually in advance a license fee of $10 for each car run on the railroad; that this ordinance was accepted, and the railroad accordingly constructed by the company; that by a supplement to the company's charter, approved March 17, 1860, it was enacted that the company, in constructing and maintaining its railroad in the streets of Jersey City, should be subject to such conditions as the common council, in the ordinance granting consent, had imposed or should impose on the company; that subsequently other ordinances of similar import were adopted by the common council, and were accepted, and the tracks so consented to were laid by the company; that from the several times when the ordinances took effect until September 25, 1883, the company ran 200 cars annually over the tracks through the streets of Jersey City, but paid no license fees therefor, except up to the year 1868, and therefore plaintiff demands from the company $150,000 as the residue of said license fees. To this declaration the company demurs.

In their argument to support the demurrer, the counsel of defendant refer to various clauses said to be contained in the charter of the company and the supplements thereto. As these enactments are not public laws, we cannot notice them, except as they appear on the face of the pleadings (1 Chitty's Pl. 216), and consequently they are not relevant to the present inquiry.

The noticeable grounds taken on behalf of the demurrant are (1) that the ordinances were not within the power of the council; and (2) were not validated by the supplement to the company's charter passed March 17, 1860.

As the Legislature was itself the representative of the general public, and had power to grant unconditionally to the company the right to construct its railroad through the streets of Jersey City, the fact that the right was granted upon the condition that the consent of the common council should first be obtained indicates that such consent might be given or withheld on...