Benton v. The City of Elizabeth and The National Transit Co.

• Citation: Benton v. The City of Elizabeth and The National Transit Co., 39 A. 683, 61 N.J.L. 411 (N.J. 1898)
• Decision Date: 15 February 1898
• Court: New Jersey Supreme Court
• Parties: THOMAS H. BENTON ET AL. v. THE CITY OF ELIZABETH AND THE NATIONAL TRANSIT COMPANY

39 A. 683

61 N.J.L. 411

STATE (BENTON et al., Prosecutors)

v. CITY OF ELIZABETH et al.¹

Supreme Court of New Jersey.

Feb. 28, 1898.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Thomas H. Benton and others, against the city of Elizabeth and the National Transit Company, to review an ordinance of said city.Ordinance sustained.

Argued November term, 1897, VAN SYCKEL, COLLINS, and DIXON, JJ.

John T. Dunn and R. V. Lindabury, for prosecutors.C. Addison Swift, for city of Elizabeth.Frank Bergen and Foster M. Voorhees, for National Transit Co.

DIXON, J.The ordinance attacked by this writ of certiorari purports to grant to the National Transit Company the privilege of opening and crossing certain streets in the city of Elizabeth, and of laying and maintaining a pipe therein for the transportation of oil, and to regulate the exercise of the privilege.In considering the casewe must assume that the National Transit Company has corporate power to acquire and exercise the right of laying pipes for the transportation of oil in this state, because the prosecutors have raised no question whatever with respect to its capacity in the premises.It is said that the company is a Pennsylvania corporation, but under our statute(P. L.1896, p. 277, §§ 95-97) corporations of sister or foreign states may, by certain proceedings therein mentioned, obtain legal authority to acquire and hold real estate and transact their business in New Jersey.Hence it may easily be that this company possesses all requisite power, and, if the prosecutors intended to challenge the power, they should have declared that purpose in the reasons filed.The evidence shows, sufficiently at least for present purposes, that the company has purchased such a right in the land mentioned in the ordinance as would entitle it to lay pipes therein for the transportation of oil if the land were not subject to the easement of a public street.The Central Railroad Company, which owns the fee of the land, has granted that right to the transit company; and, although the grantor could not lawfully use the land for such a purpose, yet that would arise only from defect of power in the railroad company, and not from any illegality in the appropriation of the land to such a use.Being possessed of the fee simple, the railroad company could grant whatever rights in the land an individual owner of the fee could grant, provided the company did not impair its power to perform its public duties; and no such impairment is shown.But, even if the validity of the grant were, in the abstract, questionable for want of corporate power in either party, yet the prosecutors, who are only private persons having no interest in the land, cannot dispute it.Leazure v. Hillegas, 7 Serg. & R. 313;Fritts v. Palmer, 132 U. S. 282, 10 Sup. Ct. 93;De Camp v. Dobbins, 31 N. J. Eq. 671, 691.

The point next to be considered relates to the power of the council to pass the ordinance.Its authority resides in the thirty-first section of the city charter (P. L.1863, p. 109), which enables the council to make and establish ordinances, rules, regulations, and by-laws prescribing the manner in which corporations or persons shall exercise any privilege granted to them in the use of any street in said city, or in digging up said street for the purpose of laying down pipes, or any other purpose whatever, and regulating the keeping and conveying of gunpowder, camphene, spirit gas, and other dangerous materials.The authority thus delegated seems to us sufficient to sustain the present ordinance.Against this view it is urged, first, that the enactment does not empower the council to grant privileges in the use of the streets, but only to regulate the exercise of privileges already possessed.In a sense this is true, but in the sense in which it is pertinent to this case it is not true.A party invoking the action of the council must, indeed, have a right or privilege to be exercised in a street, but the right is imperfect until the council indicates in what manner it may be exercised.The pre-existing right is one to be exercised only as the council permits, and within the meaning of this section the council grants the privilege of exercising the right...