State v. City of Elizabeth

• Decision Date: 20 March 1896
• Citation: 58 N.J.L. 619,34 A. 146
• Parties: STATE (CONSOLIDATED TRACTION CO., Prosecutor) v. CITY OF ELIZABETH et al.
• Court: New Jersey Supreme Court

34 A. 146

58 N.J.L. 619

STATE (CONSOLIDATED TRACTION CO., Prosecutor)

v. CITY OF ELIZABETH et al.

Supreme Court of New Jersey.

March 20, 1896.

Certiorari by the Consolidated Traction Company against the city of Elizabeth and others. Dismissed.

This writ brings up for review an ordinance of the city of Elizabeth entitled "An ordinance to prevent the use of salt, rock salt, saltpetre or salt of any kind or character, on any street railway within the city of Elizabeth," which enacted "that hereafter no person or persons, corporation or corporations shall put, throw or place salt, rock salt, saltpetre or any other kind of salt, or cause the same to be put, thrown or placed on any street railway track or other part of the street or streets within the city of Elizabeth, under a penalty of ten dollars for each offense, provided that any street railway company may use salt, rock salt or saltpetre on all curves of their railways leading from one street or avenue into another street or avenue running at right angles therewith."

Argued February term, 1896, before DEPUE, VAN SYCKEL, and GUMMERE, JJ.

Frank Bergen, for prosecutor.

James C. Connolly, for defendant.

DEPUE, J. The ordinance under review was passed in virtue of section 31, subd. 7, and section 32, of the city charter (P. L. 1863, pp. 118-123). It is contended by the prosecutor that the ordinance is Invalid for two reasons: First, that it is unreasonable; and, second, that it is an invasion of the legal rights of the prosecutor in respect of the company's exercise of its franchises within city limits.

The power of the municipality, by ordinance, to make reasonable regulations controlling the operations of street-railway companies within the city, is undoubted. The franchise granted to those companies, to use the streets of the city for railroad purposes, affords no immunity from any police control to which a citizen could be subjected. Trenton Horse R. Co. v. Inhabitants of City of Trenton, 53 N. J. Law, 132, 20 Atl 1076. The ordinance set aside in the North Hudson County Ry. Case was an ordinance requiring the company to pay an annual license fee for each of its cars, the amount of which fee was such as to show that the ordinance was intended for the purposes of revenue, and the city had not the requisite power to exercise the licensing power to provide revenue. The court distinctly affirmed the validity of ordinances of the character of the ordinance in question, if they were reasonable, and held that the legislature, when it authorized the use of the public streets for such purposes, is presumed to have intended that the grantee of the franchises should hold its privileges subject to such regulations as are reasonably necessary for the common use of the street for a street railway and for ordinary travel. North Hudson County Ry. Co. v. Mayor, etc., of City of Hoboken, 41 N. J. Law, 71. The subject of municipal regulation of street railroads is fully discussed in Booth, St. Ry. Law, §§ 223-239, inclusive. The liability of this company to municipal regulation by the city of Elizabeth is also affirmed by the terms of the law under which it holds and exercises its franchises. The main branch of its street-railway system was constructed by the Elizabeth & Newark Horse-Railroad Company,—a company incorporated by a special act passed March 25, 1804. The fifteenth section of that company's charter enacts "that the said company shall within the limits of the city of Elizabeth in all things be subject to the provisions of the charter and ordinances of said' city, now or hereafter to be in force." P. L. 1804, p. 504. The rest of its tracks in the city were laid by the Union County Street-Railway Company, which was incorporated under the general railroad act of 1886, the nineteenth section of which empowered the municipal authorities to establish such reasonable regulations as to the mode of use of the tracks, and the removal of snow and ice therefrom, as the interest and convenience of the public may require. P. L. 1886, pp. 185-193. Subsequently, by consolidations and leases, the property and franchises of these two companies became vested in the Consolidated Traction Company, the prosecutor in this case. That consolidation did not enlarge the franchises, powers, or privileges of the original companies in the city of Elizabeth, and the new company took the rights and franchises it acquired by the consolidation subject to the original conditions and limitations. Mayor, etc., of Borough of Wilbur v. Trenton Pass. Ry. Co., 57 N. J. Law, 212, 31 Atl. 238. The contention of the prosecutor is that the use of salt in removing ice from its tracks is not attended with any inconvenience, discomfort, or injurious consequences to the public, and the ordinance therefore is an arbitrary and unreasonable interference with the company in the management of its property and the conduct of its business. Much...