Specht v. Cent. Passenger Ry. Co.

• Decision Date: 23 January 1908
• Parties: SPECHT et al. v. CENTRAL PASSENGER RY. CO.
• Court: New Jersey Supreme Court

68 A. 785

SPECHT et al.

v. CENTRAL PASSENGER RY. CO.

Supreme Court of New Jersey.

Jan. 23, 1908.

Certiorari by William Specht and. others against the Central Passenger Railway Company to review a resolution adopted by the common council of Atlantic City. Resolution set aside.

Argued June term, 1907, before HENDRIOKSON,

PITNEY, and TRENCHARD, JJ.

Charles C. Babcock, for prosecutors. Thompson & Cole, for respondent

PITNEY, J. This writ brings under review a resolution adopted by the city council of Atlantic City June 18, 1906, granting to the Central Passenger Railway Company permission and consent to construct and maintain a "turnout" on the easterly side of its single track on South Carolina avenue, beginning at the south line of Pacific avenue and running southwardly a distance of 206 feet, and also a "turnout" on Virginia avenue on the easterly side of its single track, beginning at the south line of Arctic avenue and running southwardly a distance of 261 feet. The prosecutor Specht is the owner of land having a frontage of 120 feet on Virginia avenue between Arctic and Baltic avenues. The prosecutor Downs owns a frontage of 45 feet on Virginia avenue between Arctic and Baltic, and the Messrs. Harris are joint owners of land having a frontage of 142 feet on Virginia avenue be tween Atlantic and Arctic avenues. None of the prosecutors, so far as appears, owns any land fronting upon any part of the street where the turnouts are established by the res olution. But their lands front upon the street railway line of the respondent on Virginia avenue, and are quite near to one of the proposed turnouts. Presumably they will be inconvenienced by this turnout in a greater degree than other citizens and property owners. Moreover, all the prosecutors are within the class of landowners, whose consent was requisite to the passage of the ordinance presently to be mentioned. It appears that the Central Passenger Railway Company is a corporation organized under the "act to provide for the incorporation of street railway companies and to regulate the same," approved April 6, 1886 (P. L. 1886, p. 185; Gen. St. p. 3216). It is conceded that any right or permission granted to it to construct, maintain, and operate a street railway since the act of April 21, 1896 (P. L. 1896, p. 329), must depend upon compliance with the provisions of this act.

The turnouts described in the resolution under review are appendages of certain lines of street railway authorized by an ordinance of city council passed December 30, 1903, entitled "An ordinance granting a location of the tracks and route of the Central Passenger Railway Company, also granting consent and permission to said company to construct, maintain and operate a street railway by the electric overhead trolley system, and to construct, erect, use and maintain the poles, wires, conduits and other structures and appliances appropriate and necessary to operate and maintain its railway, and to fix and determine the location of its rails and tracks and the places in which its poles shall be located in, upon, through and over the respective portions of Virginia avenue and South Carolina avenue in Atlantic City, New Jersey, as shown in its descriptions of route on file and hereinafter described." The preamble of this ordinance shows that the provisions of the act of 1896 were complied with in such manner as to authorize council to grant consent and permission to the company to construct, maintain, and operate a street railway to the extent that such consent and permission were granted by the ordinance, and also to justify them in fixing the location of rails, tracks, etc. The preamble recites the filing by the company of a petition with the city clerk, accompanied by a description of its route showing the proposed location of rails and tracks and the location of poles, praying for a grant of location of its tracks and route conformably to the description, and also permission and consent to construct, maintain, and operate its railway, and to construct, erect, use, and maintain the poles, wires, conduits, and other structures and appliances appropriate and necessary to maintain and operate such street railway by the electric overhead trolley system, in the portions of said streets mentioned in the ordinance. It recites that upon the filing of the petition, city council fixed a time and place for considering the same, and prescribed and provided for the giving of notice as required by the statute. It also recites "that the consents as required by law from the owners of property fronting on the streets upon which consent and permission is asked to construct said railway have been filed with the city clerk of Atlantic City," and that a public hearing and consideration had been had. The ordinance pro ceeds to grant a location of tracks and route of the railway conformably to the route designated in the description of route and the map exhibiting the same theretofore filed, "which map is hereby made a part of this ordinance." It grants to the company "the right to place a single track on Virginia avenue, Adriatic avenue, and South Carolina avenue in the locations indicated upon said map filed with the city clerk and made part of this ordinance," excepting on certain portions of Virginia, Adriatic, and South Carolina avenues particularly specified "where there shall be two tracks in the locations indicated upon the map filed with the city clerk." The ordinance prescribes the gauge of the tracks and the distance between tracks where double. It prescribes the character of rails and the weight thereof, and, furthermore, grants a "right of turnouts and crossovers as shown on said map and said description." It then proceeds in express terms to grant to the company "consent and permission to construct, maintain and operate a street railway by the electric overhead trolley system in, over, through and upon the following streets as designated in its description of route." (Here follows a particular mention of the several streets and parts of streets included in the route, specifying, as before, what portion thereof was to be single track and what portion double track.) There are also provisions granting consent and permission to construct and maintain poles, wires, conduits, etc., and particularly specifying the position of each pole upon each of the several streets, reciting that "said location of said poles is shown on the map filed with the city clerk."

The stipulated facts show that the railway company, prior to the passage of the ordinance, did file its petition and designation of its route showing the proposed location of rails as recited in the ordinance, and that the proposed location of tracks thus shown is the same as fixed by the ordinance. It also appears by stipulation that the company duly accepted the terms of the ordinance and laid tracks and placed poles in conformity therewith. The lines of street railway thus authorized by the ordinance and constructed by the company may be briefly described as follows: Beginning on Virginia avenue at a point 1,360 feet south of Pacific avenue, and running (1) northerly on Virginia avenue, crossing successively Pacific, Atlantic, Arctic, Baltic, Mediterranean, and Drexel avenues, to Adriatic avenue; thence (2) westerly along Adriatic avenue to South Carolina avenue and thence (3) southerly on South Carolina avenue, crossing the same streets as before, to a point 1,360 feet south of Pacific avenue. The line was double track on Virginia avenue from the beginning point to a point between Pacific and Atlantic avenues 157 feet south of Atlantic; thence single track along the rest of Virginia avenue to Adriatic avenue. On Adriatic avenue it was double track except for a distance of 25 feet west of Virginia avenue and a distance of 25 feet east of South Carolina avenue, where it was single track. On South Carolina avenue it was single track from Adriatic as far south as a point 48.34 feet south of the north line of Arctic avenue. From this point to a point thirty-four one hundredths feet south of the north line of Atlantic avenue (a distance of practically one block) there were double tracks. Prom Atlantic to Pacific avenue there was a single track, and this single track extended south of Pacific avenue 1.082 feet. From this point to the terminus (a distance of 278 feet) there were double tracks. The "turnouts" proposed by the resolution are other than those authorized by the ordinance, and they have the effect of making a double-track instead of a single-track street railway for a distance of 261 feet on Virginia avenue between Atlantic and Arctic and for a distance of 206 feet on South Carolina avenue just south of Pacific.

It seems clear that the resolution giving consent to the construction of these turnouts is invalid, because of noncompliance with the act of 1896 (P. L. 1896, p. 329). That act in terms requires that permission to construct, maintain and operate a street railway shall be granted by ordinance, and not otherwise; that such ordinance shall be granted only after public notice and hearing, and only upon the filing of the written consent of the owner or owners of at least one-half in amount in lineal feet of property fronting upon the streets or parts of streets upon which permission to construct the railway is asked. None of these legal forms was pursued with respect to the turnouts mentioned in the resolution. The act of 1896 recognizes a distinction between the granting of consent or permission to construct the railway, on the one hand, and the fixing of the precise location of the rails, poles, etc., on the other; and its first section provides that the governing body to whom application is made may "either at the time of giving its permission as aforesaid or at a subsequent time fix and determine by resolution the location of the rails or tracks, etc., and may in like manner determine the place or places in which poles...