State v. Inhabitants of City of Teenton

• Decision Date: 06 November 1890
• Citation: 53 N.J.L. 132,20 A. 1076
• Parties: STATE (TRENTON HORSE R. CO., Prosecutor) v. INHABITANTS OF CITY OF TEENTON.
• Court: New Jersey Supreme Court

20 A. 1076

53 N.J.L. 132

STATE (TRENTON HORSE R. CO., Prosecutor)

v. INHABITANTS OF CITY OF TEENTON.

Supreme Court of New Jersey.

Nov. 6, 1890.

(Syllabus by the Court.)

This writ of certiorari brings up an ordinance passed by the common council of the city of Trenton. The following is a copy of the ordinance: "An ordinance relating to horse railroads. Whereas, it is manifest that cars adapted to carry large numbers of passengers cannot be used under the supervision of a single person with safety and convenience to the public, and a due regard to the security and good order of the streets: The inhabitants of the city of Trenton do ordain: Section 1. That it shall not be lawful for any horse-railroad company in the city of Trenton to run over or upon its tracks any car without having thereon an agent, in addition to the driver, to assist in the control and care of the car and its passengers, and to prevent accidents and disturbances of the good order and security of the streets. Sec. 2. That any company violating the provisions of this ordinance shall, for each and every such violation, forfeit and pay the sum of five dollars, to be collected according to law. Passed common council, August 20th, 1889." A number of reasons are assigned for its nullification, but all the serious objections are contained in the first, second, and fifth. These reasons are the following: Because the ordinance is in excess of the power of the common council, and in excess of their corporate powers; because the ordinance is unreasonable; because it is destructive of a franchise and subversive of legislative acts.

Argued June term, 1890, before REED and GARRISON, JJ.

R. S. Woodruff, for prosecutors. John Rellstab and George M. Robeson, for defendants.

REED, J., (after stating the facts as above.) The prosecutors, the Trenton Horse-Railroad Company, were incorporated by a special act of the legislature passed in 1859, (P. L. 1859, p. 266,) and by their charter they were empowered to construct a railroad, with necessary turnouts, through Clinton and State streets from the north-easterly to the westerly limits of the city of Trenton, with a branch or branches to the railroad depot, and such other branches in the streets of said city as may be necessary. It was provided that the said road should not be constructed through any of said streets without the consent of the common council of the city of Trenton. The act further provided for the kind of rails that were to be used, and how they should be laid, and designated the width of the track. The above statement included all the power, and all the limitations upon that power, contained in the charter, so far as they touch the question mooted. The company presumably received the required consent of the common council, laid their tracks, and are now operating their road. I say this is so presumably because no evidence has been taken in the cause to show the present status of the railroad in this respect.

As already appears, the question for solution is whether the common council possessed the ability to subject the prosecutors to the expense of employing a servant, in addition to the driver, to assist in the running of each of their cars. The charter of the city of Trenton is to be found in the Laws of 1874, p. 831. On turning to its provisions, to discover the nature and scope of the powers conferred upon the common council, we find, among others, the following: Section 26 contains a general delegation of municipal police power to the common council. It confers upon that body the authority to pass such ordinances, rules, regulations, and by-laws, not contrary to the federal or state laws, as it may deem necessary and proper for the good government, order, and protection of persons and property, and for the preservation of the public health and prosperity of the city and its inhabitants. In subdivision 7 of section 25, there is a grant of power to prescribe the manner in which corporations or persons shall exercise any privilege granted to them in the use of any street, avenue, highway, or alley in said city. In subdivision 26 of the same section there is conferred power to license and regulate cart-men, porters, hack, cab, omnibus, milk-wagons, stage and truck owners and drivers, carriages, and vehicles used for the transportation of passengers and merchandise, goods, or articles of any kind. Each of these delegations of power is invoked by the defendants as a warrant for the regulation before us. So far as they relate to the present subject of inquiry, I incline to the opinion that neither of the particular delegations of power add anything to the right to exercise the police power generally granted. No affair has been more frequently the subject of municipal regulation than the manner in which the public streets shall be used. These regulations have been sanctioned both upon the ground of express grant of power or by virtue of the authority to make by-laws relating to the public safety and good order of the inhabitants, 1 Dill. Mun. Corp. § 326; Board v. Heister, 37 N. Y. 661; Palmyra v. Morton, 25 Mo. 593; Railway Co. v. Hoboken,41 N. J. Law, 71; Day v. Green, 4 Cush. 433. I am not asserting that neither of these special delegations may not confer power upon the common council to legislate for certain particular conditions of municipal affairs not within the general police power. But as I shall view the present ordinance it will be regarded as a regulation of the use of a public street, and the only question considered will be whether the regulation is reasonable in that aspect. If it is a reasonable restraint upon a use of a highway, it needs no special delegation of power to vindicate it; if it is unreasonable, neither of the special grants validates it. In respect to this inquiry into the reasonableness of this regulation, our attention was directed to the legal rule that, where ordinances are passed in pursuance of a specific and definite power, there can be no question raised in respect to its reasonableness. Haynes v. Cape May, 50 N. J. Law, 55,13 Atl. Rep. 231. This rule is entirely inapplicable to the present ordinance. The rule is entirely settled that if any ordinance is based upon a general power, and its provisions are more specific and detailed than the expression of the power conferred, the courts will look into the reasonableness of such provisions. 1 Dill. Mun. Corp. § 262; Horr & B. Mun. Ord. § 188.

Had the legislature given the option to prescribe specific regulations for stages and vehicles, no objection could be raised in respect to the reasonableness of the ordinances passed in strict conformity with the power. The presumption in favor of their validity would be conclusive. But the power conferred by the charter of the city of Trenton does not define the manner of use which the common council may require, nor the limitations within which the power may be exercised. It is a general power to regulate. Under neither of the so-called "delegations "of power could it be admitted that the common council possessed the power to enact conditions which would destroy the property and franchise of the prosecutors. There is therefore some restriction upon the power to fix the manner of their use of the...