State v. Inhabitants of City of Trenton

• Decision Date: 08 January 1892
• Citation: 54 N.J.L 92,23 A. 281
• Parties: STATE (GREEN, Prosecutor) v. INHABITANTS OF CITY OF TRENTON et al.
• Court: New Jersey Supreme Court

23 A. 281

54 N.J.L 92

STATE (GREEN, Prosecutor)

v. INHABITANTS OF CITY OF TRENTON et al.

Supreme Court of New Jersey.

Jan. 8, 1892.

(Syllabus by the Court.)

Certiorari at the prosecution of Eleanor Green against the inhabitants of the city of Trenton and the Trenton Horse-Railroad Company, to review an ordinance authorizing said company to use electricity as a motive power. Ordinance set aside.

The other facts fully appear in the following statement by Reed, J.:

This writ of certiorari brings into this court the following ordinance passed by the common council of the city of Trenton: "A supplement to an ordinance entitled 'An ordinance to authorize the Trenton Horse-Railroad Company to construct their road or track through the streets of the city of Trenton,' passed July twenty-sixth, eighteen hundred and sixty-three. Whereas, application has been made to the common council of the city of Trenton by the Trenton Horse-Railroad Company for permission to use electric motors as the propelling power of its cars through the streets of said city; and whereas, the said company has entered into a written agreement with the inhabitants of the city of Trenton not to lay or use in the streets of the city of Trenton any rails not having inside flanges, and known as a 'T' rail, and, further, that it will, at such time when an extension of the territorial limits of the city shall embrace any streets or roads upon which any such rails shall then be laid, (which rails shall be used or controlled by such company in the operating of its railway system,) immediately remove the same, and replace them with rails having inside flanges, which agreement is now on file in the office of the city clerk: Now, therefore, the inhabitants of the city of Trenton do ordain: Section 1. That permission be, and the same is hereby, granted to the 'Trenton Horse-Railroad Company,' of the city of Trenton, to use electric motors as the propelling power of its cars on all of the lines of the city of Trenton which they now or hereafter may control and operate, to be supplied with electricity from properly guarded overhead wires, supported by poles at least twenty feet high; which poles on Hamilton avenue and on Clinton street, from said avenue to State street, and on State street, from Assanpink creek to the waste-weir, between Calhoun and Prospect streets, shall be of iron or steel, and along the remaining parts of its lines shall be of dressed and painted cedar or other suitable wood; which poles are to be placed within the curb line, opposite to each other, and connected with steel wires: provided, when any of such wooden poles shall be removed or replaced, they shall be replaced with such iron or steel poles. Sec. 2. That the location and placing of the poles shall be under the supervision and direction of the city surveyor and the committee on railroads of common council. Sec. 3. This permission is granted upon the following terms and conditions: (1) The poles shall be placed at least one hundred and twenty-five (125) feet apart. (2) The said company, before commencing the work of constructing their overhead plant, shall present to said committee on railroads and bridges a detailed plan of such construction, the same to be approved by said committee, in writing, before any work is done under the permission hereby granted. (3) The said company is to maintain gates upon the sides of the platforms of their cars, so that ingress and egress to and from said cars can only be had from the side of the car nearest to the curb. All new cars placed upon the lines of the company shall be of the most approved pattern, and, except summer or open cars and tow-cars, shall have inclosed platforms. (4) That the said company shall commence the construction of such electric systems on or before the first day of April next, and complete the same, and operate and propel its cars with electricity on all its lines within the city, by the first day of April, A. D. 1892. (5) The said company shall run its cars at such rate of speed, not exceeding twelve miles an hour, as may be required by the common council, and on its branch lines running on State street east of Clinton avenue, and on Hamilton avenue, shall run a sufficient number of cars to make at least thirty (30) round trips daily at regular intervals. Sec. 4. Nothing in this ordinance shall be construed to repeal, alter, or modify the agreement referred to in the preamble hereto, but the said agreement is hereby declared to continue in full force and effect. Sec. 5. That said company shall pay for the advertising of this ordinance according to law, and this ordinance shall not go into effect until payment for said advertisement shall have been made by said company, and they have filed with the city clerk a a written acceptance of the provisions and conditions of this ordinance, executed by them in the manner corporations are required by law to execute such instruments; and a failure to file such written acceptance within sixty days after the passage of this ordinance shall be deemed and taken to be a refusal so to do on the part of said company, and thereupon all rights and privileges to them hereby granted shall forever cease and be at an end." The provisions of this ordinance were accepted by the defendants. The railroad company prepared a detailed plan, showing the location of the various poles which they propose to erect within the curb lines of State street, and one of said poles is to be erected upon the land of the prosecutrix in State street, within the curb line thereof.

Argued at June term, 1891, before Depue, Dixon, and Reed, JJ.

W. S. Gummere and Barker Gummere, for prosecutrix.

R. S. Woodruff and Theodore Runyon, for defendants.

REED, J., (after stating the facts.) The ordinance brought up by this writ is attacked upon the ground that the common council of the city of Trenton did not possess the power to enact it. The defendants rest their claim that such power existed in the common council upon the terms of an act of the legislature passed in 1886. Supp. Revision, p. 369. The second section of that act is in the folio wine words: "That any street-railroad company in this state may use electric or chemical motors or grip cables as the propelling power of its cars, instead of horses: provided, it shall first obtain the consent of the municipal authorities having charge of the public highways or streets on which it is proposed to use such motors or grip cables." The question propounded is whether, by the terms of this act, the common council is invested with the power to grant to a street-railway company the privilege of placing obstructions in the street in the shape of poles and wires. The counsel for the defendants contend for the existence of this power in the municipal body. The counsel for the prosecutrix, on the contrary, insist that the power of the council is limited to a grant of a permission to use motors upon or attached to the cars, but does not extend to a permission to erect structures upon the street, although for the purpose of supplying such motors with the electric fluid. The canon of construction to be applied to this grant of power is entirely settled. As against the public grantor, the grantee must rely upon express words in the statute, or upon a necessary implication. If there exists a doubt as to the extent of the grant, or any ambiguity as to its terms, such doubt must be resolved against, and such...