State v. City of Cape May

• Decision Date: 05 November 1896
• Citation: 59 N.J.L. 396,36 A. 696
• Parties: STATE (CAPE MAY, D. B. & S. P. R. CO., Prosecutor) v. CITY OF CAPE MAY et al.
• Court: New Jersey Supreme Court

36 A. 696

59 N.J.L. 396

STATE (CAPE MAY, D. B. & S. P. R. CO., Prosecutor)

v. CITY OF CAPE MAY et al.

Supreme Court of New Jersey.

Nov. 5, 1896.

(Syllabus by the Court.)

Certiorari by the state, at the prosecution of the Cape May, Delaware Bay & Sewell's Point Railroad Company, against the city of Cape May and others, to review an ordinance. Dismissed.

Argued November term, 1896, before GARRISON and LIPPINCOTT, JJ.

E. A. Armstrong, for prosecutor.

D. J. Pancoast, for defendants.

LIPPINCOTT, J. On the 9th day of July, 1895, the city council of the city of Cape May passed the following ordinance, to wit: "An ordinance requiring the use of fenders on all passenger cars operated by trolley or electric power in the streets of the city of Cape May. Section 1. Be it ordained and enacted by the inhabitants of the city of Cape May in city council assembled, and it is hereby enacted by the authority of the same: That hereafter all passenger cars operated by trolley or electric power in the streets of the city of Cape May shall have proper and suitable fenders on the front of said cars to prevent accidents, and that it shall be unlawful to operate street cars within the city without such fenders." Section 2 provides a penalty for a violation of this ordinance, and section 3 provides that it shall take effect immediately. This certiorari has been brought to review this ordinance.

The ordinance in this case was passed by the council in the manner prescribed by the city charter. The city charter of the city of Cape May authorizes the city council thereof to enact ordinances to regulate the streets of the city, to provide for the manner in which corporations and persons shall exercise any privilege granted to them in the use of the same, to prevent immoderate driving or riding in the streets, to regulate the running of locomotive engines and railroad cars therein, and such ordinances as they may deem necessary for the good government, order, and protection of persons and property. P. L. 1875, p. 200, §§ 19, 20; Gen. St. p. 312. The prosecutors are operating an electric street railway on the streets of the city of Cape May, under an ordinance granting it that privilege. Cape May, D. B. & S. P. R. Co. v. City of Cape May (N. J. Sup.) 34 Atl. 397. It has been held at the present term of this court that ordinances passed by the city council, reasonably regulating the rate of speed at which the prosecutor shall run its cars through the streets, and also to compel it to make full stops before crossing intersecting streets, are valid regulations in the exercise of the police powers implied from the authority granted by the charter of the city to the council. Such ordinances, being reasonable, will be sustained. It is difficult to perceive, in view of the statutory power conferred upon the city council, upon what ground this ordinance can be attacked, as the improper exercise of the power of the regulation of the use of the street for the protection of the traveling public. The franchise or privilege of the prosecutor to oferate its cars in the streets of the city is founded upon the grant by the city. The reasonable control of this use of the streets of the city has not been divested by the ordinance under which the railway is operated. The grant was to use the streets with cars of the prosecutor propelled by electric power, a power capable of producing a high and dangerous rate of speed, from which collision would result, perhaps, in probable serious injury to others in the use of the streets. The law is well settled in this state that these street railways have no exclusive use of the streets, and not even the exclusive use of the tracks upon which the cars were operated. The legislative power to control and regulate the streets has been delegated to the governing body of the municipality, and it is under this power that the privilege has been conferred upon the prosecutor, and it is still within the power of the city council by invocation of this same legislative authority to so regulate the use of the streets as shall render their use by electric cars consistent with the safety of the general public from accident and injury. The ordinance can be tested only in view of the extraordinary propulsive power by which such cars are operated, and the danger arising from the high rate of speed which may be obtained, and other dangers incident from their operation in the streets; and reasonable regulations in the shape of ordinances to protect the ordinary public travel upon the highways have always been supported whenever questions as to the validity of such regulations have arisen. The ordinance under review in matter of principle in no wise differs from ordinances regulating the rate of speed of the cars, or other ordinances owing their origin impliedly to the authority vested in the municipality to regulate the use of its streets. The legislature, when it authorized the use of the public streets for these purposes, was presumed to have intended that the grantee of the franchises should hold its privileges subject to such regulations as were reasonably necessary for the common use of the street for a street railway and for ordinary travel. North Hudson Co. R. Co. v. Mayor, etc., of Hoboken, 41 N. J. Law, 71; Consolidated Traction Co. v. City of Elizabeth (N. J. Sup.) 34 Atl. 146. Nearly all kinds of reasonable regulations can be imposed upon street railways in the use of the streets by the municipality, under the authority granted by the legislature to pass ordinances to regulate the use of the streets, and such regulations are never declared unlawful on the ground that they impair the franchises of the companies. The power granted to municipal bodies to legislate by ordinances is a grant to a subordinate body, and its legislative acts, when counter to the acts of the state legislature, must give way; but these companies nevertheless hold their franchises subject to such municipal regulations as do not unreasonably interfere with the exercise of the franchises conferred by the legislature. The franchises are exercised upon a public highway, for the public benefit, which highway is acquired and improved for the benefit and advantage of the public at large. The position is different from that of a railroad company exercising its franchises upon a roadbed of its own. The grantee in the former case is subject to municipal regulations of a greater scope in the interest of the public at large than would be justifiable in the case of companies occupying and using their own roadbeds. Consolidated Traction Co. v. City of Elizabeth (N. J. Sup.) 34 Atl. 146; Allen v. Jersey City, 53 N. J. Law, 522, 22 Atl. 257; Trenton Horse Ry. Co. v. City of Trenton, 53 N....