State v. Mayor

• Decision Date: 08 November 1894
• Citation: 57 N.J.L. 293,30 A. 531
• Parties: STATE (KENNELLY et al., Prosecutors) v. MAYOR, ETC., OF JERSEY CITY et al.
• Court: New Jersey Supreme Court

30 A. 531

57 N.J.L. 293

STATE (KENNELLY et al., Prosecutors)

v. MAYOR, ETC., OF JERSEY CITY et al.

Supreme Court of New Jersey.

Nov. 8, 1894.

(Syllabus by the Court.)

Suit by the state (John Kennelly and others, prosecutors) against the mayor and alderman of Jersey City, and the North Hudson County Railway Company, to test the legality of a certain ordinance. Judgment for prosecutors.

Argued June term, 1894, before REED, ABBOTT, and DIXON, JJ.

Charles L. Corbin and Gilbert Collins, for prosecutors.

A. Q. Garretson, for defendants.

DIXON, J. The board of street and water commissioners of Jersey City having, on March 5, 1894, passed an ordinance giving the North Hudson County Railway Company permission to lay tracks, erect poles, and string wires on several streets of the city,— among them, Grove street, from Pavonia avenue to the Hoboken line,—the prosecutors, owning property on that street, sued out this certiorari to test the legality of the ordinance.

A fundamental question, lying at the basis of matters which we must consider in passing upon the objections of the prosecutors, is whether the trolley system of propelling street cars, involving, as it does, the erection of poles and wires on land, the fee of which is private property, is within the public easement over urban highways. In our judgment, it is. That easement includes the right to use the street for purposes of passage by the public, and therefore to employ any means directly conducive to that end, which do not substantially interfere with the customary use of the street by any portion of the public, or with the recognized rights of abutting owners. The cars propelled by the trolley system do not materially differ, either in appearance or use, from the ordinary horse cars. They are permitted to go along the streets in such manner only as is compatible with the customary modes of travel by others of the public. Railway Co. v. Block, 55 N. J Law, 605, 27 Atl. 1067. And the tracks, poles, and wires cause no greater detriment to adjoining property than do the tracks, sewers, pipes, posts, and trees, which, undisputably, the public may authorize to be placed in the street These considerations, we think, lead to the conclusion reached by the learned vice chancellors of this state in Halsey v. Railway Co., 47 N. J. Eq. 380, 391, 20 Atl. 859, and Railway Co. v. Grundy, 51 N. J. Eq. 213, 228, 26 Atl. 788, and by the learned chancellor in West Jersey R. Co. v. Camden, G. & W. Ry. Co. (N. J. Ch.) 29 Atl. 423,—that the adoption of the trolley system for the conveyance of passengers through the streets of a city, does not necessitate the invasion of any private right.

We proceed now to examine the objections presented by the prosecutors.

The first is that the ordinance was passed without notice to the owners or property along the line of the street. It is impossible to frame a universal rule, in determining when individuals are absolutely entitled to notice of the proceedings of public agencies. Like "due process of law," it seems to be a mixed question of abstract justice and established usage. Sometimes it is said that such notice is requisite in all judicial proceedings, but not in those which are legislative or ministerial. With regard, however, to the acts of corporate bodies invested with governmental powers, these terms are often very shadowy, and sometimes appear to be applied to such acts merely on a hypothesis that notice to private persons is or is not deemed essential.

Generally, I think, it may be said that, when private rights are involved, notice must be given to the parties interested. Yet not always; for the question whether the power of eminent domain shall be exerted over the property of A. or of B. is conclusively decided without notice to either, although that certainly involves private rights. The counterpart of the general rule above suggested is, I believe, of universal application,—that, when private rights are not involved, notice to private persons is not essential. The matters dealt with in the ordinance now under review, and of which complaint is made, the adoption of the trolley system, and the laying of double tracks in the street, do not involve private rights. It may be that the legitimate use of the street by the abutting owners will interrupt the passage of cars upon double tracks more frequently than it would if there were only a single track; but, as we have seen, the private right will not, on that account, be diminished. The public using the tracks must put up with the interruption. Rafferty v. Central Traction Co., 147 Pa. St. 579, 23 Atl. 884. If this ordinance defined the position of the poles, and thus determined whether the possible inconvenience which they might occasion should be borne by one abutting owner, rather than another, then, perhaps, as is intimated in the equity...