State v. Bridgeton & M. Traction Co.

• Decision Date: 21 June 1899
• Citation: 62 N.J.L. 592,43 A. 715
• Parties: STATE ex rel. CITY OF BRIDGETON v. BRIDGETON & M. TRACTION CO.
• Court: New Jersey Supreme Court

43 A. 715

62 N.J.L. 592

STATE ex rel. CITY OF BRIDGETON

v. BRIDGETON & M. TRACTION CO.

Supreme Court of New Jersey.

June 21, 1899.

(Syllabus by the Court.)

Application by the state, on the relation of the city of Bridgeton, for a writ of mandamus to the Bridgeton & Millville Traction Company. Rule to show cause why the writ should not issue. Writ made absolute.

Argued June term, 1898, before LIPPINCOTT and GUMMERE, JJ.

Thomas W. Trenchard and Thomas E. French, for relator.

Walter H. Bacon, for respondent LIPPINCOTT, J. This is a proceeding on a rule to show cause, on the part of the relator, why a writ of mandamus should not issue commanding the Bridgeton & Millville Traction Company forthwith to resume and discharge its duty as a common carrier of passengers and the exercise of its franchises by operating and continuing to operate for the transportation of passengers the street railway, with all necessary turnouts and switches, the tracks of which were located by Ordinance 66 of the city of Bridgeton, the relator, entitled "An ordinance locating the tracks of the railway of the Bridgeton Rapid-Transit Company and authorizing the said company to construct a street railway in certain streets in the city of Bridgeton." The facts are that after the incorporation of the Bridgeton Rapid-Transit Company it presented a petition to the city council of the city of Bridgeton for a grant to locate, construct, operate, and maintain a single-track street railway, with the necessary turnouts, in the streets over the route designated in its articles of incorporation; among other streets, "beginning in Summit avenue, about one hundred and fifty feet from the westerly line of Atlantic street, in the city of Bridgeton, in the county of Cumberland, in the state of New Jersey; thence along Summit avenue to Atlantic street; thence through and along Atlantic street to Broad street; thence through Broad street, and across the bridge over Cohansey creek, through Jefferson street to South Pearl street, through South Pearl street to South avenue, and through South avenue to Pamplylia avenue." On January 31, 1892, after consideration, the city council passed an ordinance locating the tracks in the streets of Bridgeton, including the streets above named, granting the company the right to operate the line in such streets by any mechanical power except steam, regulating the manner of construction in such streets, that the said railway should be completed within nine months from the acceptance of the ordinance by the company, and providing for the manner in which the streets should be used. In several sections of the ordinance the duties of the company in relation to the use and repair of the streets are defined, certain restrictions imposed, and the rights of the city in the streets expressly reserved. By the twelfth section of the ordinance it is provided, in substance, that if the company shall fail to run or operate its said cars for the space of five consecutive days, then it shall and may be lawful for the said city council of the city of Bridgeton to order the said company to remove its said tracks wherever it has failed to operate its cars, and unless the company shall forthwith remove the same, and place such street or highway in good repair and condition to the satisfaction of the city, then the said city should have power to remove the track, repair the street or highway, and to sell the material removed therefrom, and from the proceeds pay the expense of removal and sale, paying the surplus, if any, to the company, and, in case of deficiency, the company to be liable for the same. On March 1, 1893, the Bridgeton Rapid-Transit Company filed an acceptance of the location of its tracks as designated in this ordinance. On the same day it also filed a general acceptance of the ordinance. On June 3, 1893, the Bridgeton Rapid-Transit Company leased to the South Jersey Traction Company, a corporation organized for the same purposes as the Bridgeton Rapid-Transit Company, the street railway of that company as located under the ordinance, or extended in pursuance of lawful authority then existing or which might thereafter exist, together with all "the branches, extensions, sidings, turnout tracks, rights of way, lands, machinery, fixtures, depots, stables, shops, stations, buildings, structures, improvements, appurtenances, and hereditaments of whatever kind and description and wherever situate," and also "all rights, powers, franchises, and privileges," etc., for the term of 999 years. The South Jersey Traction Company on its part agreed to assume all existing contracts relating to the construction and operation of the railway, and agreed to forthwith proceed at its own cost and expense to construct, equip, and thereafter operate and maintain the whole of the railway not already constructed over and along the streets and highways of the city of Bridgeton, as the route is designated in the articles of the association of the said lessor, and as the same has been located by the city council of the city of Bridgeton by the ordinance aforesaid." The agreement of lease also contained other stipulations that the lessee would exercise all the corporate powers conferred, and exercise every right, franchise, and privilege in respect to the use, management, and maintenance of such railway; and also that during the continuance of this lease the railway should be efficiently operated with a full equipment during the continuance of the lease. On July 1, 1893, the South Jersey Traction Company, to secure its bonds amounting to the sum of $400,000, mortgaged to the Solicitors' Loan & Trust Company 993 shares of stock of the Bridgeton Rapid-Transit Company and 300 shares of the capital stock of the Bridgeton & Millville Traction Company, the railway of the South Jersey Traction Company, with all its structures, cars and appliances, and also all the leasehold estate acquired by lease from the Bridgeton Rapid Transit Company, to the South Jersey Traction Company, dated the 23d day of June, 1893. At the same time of the lease from the Bridgeton Rapid-Transit Company to the South Jersey Traction Company the latter company by lease acquired from the Bridgeton & Millville Turnpike Company the rights, franchises, and property in certain highways in the city of Bridgeton of that company, which leasehold estate, with all its appurtenances, rights, and franchises, were expressly included in this mortgage. The mortgage was foreclosed in the court of chancery of this state, and by master's deed dated on May 10, 1897, the shares of stock mortgaged, the railways, rights, franchises, station, and equipments of the South Jersey Traction Company were conveyed to one Frank S. Lewis, including the leasehold estate derived from the Bridgeton Rapid-Transit Company and the Bridgeton & Millville Turnpike Company. On May 11, 1897, the certificate of the organization of the Bridgeton & Millville Traction Company as a corporation of this state was filed in the office of the secretary of state, to which corporation Frank S. Lewis immediately conveyed the shares of stock acquired at the foreclosure sale; also all the railways owned by said South Jersey Traction Company, with all cars, shops, stations, etc., and appliances; also all the leasehold estates acquired by the South Jersey Traction Company.

The Bridgeton & Millville Traction Company was organized by virtue of an act entitled "An act concerning the sale of property and franchises of any corporation created by or under any laws of this state, except steam railroads, canals, turnpike or plank road companies," approved April 16, 1897 (P. L. 1897, p. 229, c. 127). It will be seen that the Bridgeton & Millville Traction Company was duly organized under the statutes of this state, and became the owner and possessor of all the property and franchises of the Bridgeton Rapid-Transit Company, the South Jersey Traction Company, and the Bridgeton & Millville Turnpike Company, for the purposes of the operation of this street railway over the streets in question. By the statute last cited it is provided that: "Whenever the property and franchises of any corporation * * * shall be sold * * * by any decree or decrees of the court of chancery, * * * such sale * * * shall vest in the purchaser or purchasers thereof all the right, title, interest, property, possession, claim and demand, in law and equity, of the parties to the suit * * * in which such decree * * * was * * * made, of, in and to the said property so sold with its appurtenances; and also of, in and to the corporate rights, liberties, privileges and franchises of the said corporation, but subject to all the conditions, limitations, restrictions and penalties of the said corporation of and concerning the same." It appears in the case that the street railway has been constructed over the entire route located in the ordinance, and has been operated by these different companies in the order of their possession respectively. It appears from the facts that in Broad street and in the route located by the ordinance of the city, there existed a bridge over Cohansey creek. The construction, maintenance, and repair thereof was Invested in the board of chosen freeholders of the county of...