Welsh v. Town of Morristown

• Decision Date: 20 July 1923
• Docket Number: No. 204.,204.
• Citation: 121 A. 697
• Parties: WELSH v. TOWN OF MORRISTOWN et al.
• Court: New Jersey Supreme Court

121 A. 697

WELSH

v. TOWN OF MORRISTOWN et al.

No. 204.

Supreme Court of New Jersey.

July 20, 1923.

(Syllabus by the Court.)

Certiorari by Laclare L. Welsh against the Town of Morristown, and others. Writ dismissed.

Argued June term, 1923, before TRENCHARD, PARKER, and BERGEN, JJ.

Maximillian M. Stallman, of Newark, for prosecutor.

N. C. Toms, of Morristown, and Conover English, of Newark, for defendants.

TRENOHARD, J. This writ brings up an ordinance of the town of Morristown entitled "An ordinance to regulate traffic on the driveway lying on the east side of the shelter house of the Delaware, Lackawanna & Western Railroad Company in Morristown, extending from the American Railway Express office to Lackawanna place." It ordains that:

"1. No automobile or other vehicle, either private or that which may be engaged in the transportation of passengers for hire, shall be parked or shall be allowed to stand for a longer time than is necessary to take on and let off passengers, expressage, or baggage, and in no case for longer than two minutes, along the curb on the westerly side of the driveway mentioned in the title of this ordinance from the southerly side of the entranceway to the shelter house or the tunnel leading under the depot, northerly to the turn of said driveway under the railroad."

"2. No automobile which may be engaged in the transportation of passengers for hire shall be so parked or so allowed to stand as prohibited in section 1 hereof on the remaining part of the westerly side of said driveway."

A penalty for violation is prescribed in the ordinance.

The status of the prosecutor is that he has a contract with the railroad company to furnish exclusive taxicab service at the station. That contract was entered into before the ordinance in question was passed. By it the company states its desire to regulate cab service and grants to the prosecutor "the exclusive right to solicit business as a cabman" on its station grounds and "the exclusive privilege of parking vehicles employed in said cab service when not in actual use in the spaces shown in green on the blueprint map hereto attached." One of such spaces is that described in the ordinance.

No question is raised with respect to the passage of the ordinance, nor is it challenged as an unreasonable exercise of municipal powers. Of the four reasons assigned by the prosecutor the first is generally that it is beyond the power of the town to enact, and the other three rest on constitutional grounds, viz.: That it deprives the prosecutor of his property without due process of law, takes his property for public use without just compensation, and denies him the equal protection of the laws.

As we have seen, the ordinance in form and substance is on its face aimed at the regulation of vehicular traffic at the railroad station at a particular place in the driveway lying on the east side of the shelter house of the railroad company extending from the American Railway Express office to Lackawanna place.

The town claims the right to enact this ordinance generally by virtue of its police power to regulate traffic in public places, and specifically by virtue of a contract with the railroad company, made in 1912, and relating to the elevation of the station and tracks so as to avoid grade crossing. This contract was entered into by virtue of the various enabling statutes in that regard, particularly the act of 1901 (P. L. p. 116; C. S. p. 4266). It provides for a change in the station approaches partly by a new street to be laid out and made by the town, and partly by a roadway built by the company. The general scheme as carried out resulted in a driveway girdling the station consisting in part of a plaza (the driveway in question) connected at its north end with Morris street (a main highway) by a roadway built by the company, and at the sound end through the new street called Lackawanna place, a dedicated public street. The contract declared that—

"Said driveway (which is the subject of the ordinance) shall be kept open at all times for passengers, pedestrians, carriages, wagons, automobiles and general vehicular traffic to and from the station grounds on the easterly side of said railroad and for the use of those now having rights of egress to Morris street in Saw Mill lane, but this contract shall not be construed as a dedication of said driveway as a public highway."

It thereby and otherwise appears that the driveway in question was and is devoted to public use, although the fee thereof remained in the railroad company.

This track elevation contract also contains this broad and significant language:

"It is further agreed that the town may and shall exercise all necessary police powers in and upon the station, station grounds, approaches and driveways, for the purpose of regulating foot and vehicular traffic at said station, and for the enforcement of the rules and regulations of the...