Opinion
Argued February 8, 1928 —
Decided May 14, 1928.
On appeal from the Supreme Court.
This was an action in ejectment in the Supreme Court referred to Hon. Frank B. Jess, Circuit Court judge, for trial, who delivered the following opinion:
"This is an action in ejectment by which the plaintiff seeks to compel the defendant to remove its railroad tracks and station from Broad street, in the the city of Burlington. This case was tried by the court without a jury. The facts are not in dispute.
"The tracks were laid longitudinally in Broad street under the terms of an agreement between the mayor, recorder, aldermen and commonalty of the city of Burlington, and the Camden and Amboy Railroad Transportation Company. This agreement was entered into on April 30th, 1831. It expressly granted to the Camden and Amboy company, and its successors, the right to construct through and along Broad street, from the easterly to the westerly extremity of the city of Burlington, the railroad authorized by the act of the legislature incorporating the Camden and Amboy company. The company, in consideration for the grant, covenanted to pay to the city the sum of $100 annually during the continuance of the agreement. This rental has since been paid regularly.
"By agreement made the 14th of March, 1868, the city of Burlington granted to the Camden and Amboy company, for an additional annual rental of one dollar, the right to erect its station and appurtenances in Broad street, and, `in consideration of said improvements,' the right to lay an additional track in Broad street, from the west side of High street eastwardly to and crossing the Assiscunk creek.
"The right to occupy and operate the railroad of the Camden and Amboy company was transferred to the Pennsylvania Railroad Company, by lease and contract, dated June 30th, 1871. This lease was validated and confirmed by an act of the legislature passed in 1873. Pamph. L., p. 1298.
"In their oral arguments and in their briefs counsel discussed at length the question whether the agreement of 1831, by virtue of which the defendant's predecessor acquired the right to lay tracks in Broad street, was within the scope of the powers granted by the legislature to the city of Burlington, by the act incorporating that city, passed December 21st, 1784, and which was in force at the time of making the agreement.
"If I were to rest a decision in this case on my conclusions with respect to that question I should be obliged to find adversely to the defendant's contention, in view of the opinion of the Court of Errors and Appeals, in Pennsylvania Railroad Co. v. City of Burlington, 58 N.J. Eq. 547. The question to be decided, however, is not whether the original agreement authorizing the laying of the tracks was valid in its inception, but whether the seal of validity has been impressed upon it by legislative sanction, efficaciously expressed.
"In 1895 the defendant attempted to lay an additional track in Broad street. A bill was filed by the city to restrain the company from proceeding with that project.
"During the course of this litigation the legislature, in 1896, passed an act which, apparently, was designed to aid the company in the assertion of its rights in Broad street. This act ( Pamph. L. 1896, p. 228) provided, inter alia, that `the proper municipal authorities, respectively, of any city of this state, except cities of the first class, be and they are hereby authorized and empowered to enter into contracts with any railroad companies whose roads now enter or lie within their cities respectively, or whose routes have been located therein, granting the said railroad companies, or any of them, the right to lay their roads and construct their tracks in, through, along and upon any of the roads or streets of said cities, * * * and any such contracts heretofore or hereafter made by said cities, or any of them, with any railroad company or companies as aforesaid, are hereby fully authorized, ratified and confirmed.'
"In enjoining the company from laying an additional track in Broad street, Vice Chancellor Reed held that the above act was the only evidence of legislative authority that existed in support of the consent originally granted by the city of Burlington to the placing of tracks in Broad street. He then proceeded to examine that act with reference to its constitutional validity. The important question, he declared, was whether the legislation was special. The exclusion of cities of the first class might be vindicated on the ground that population, having regard to the purposes of the legislation, was a proper basis of classification. But in limiting the application of the statute to cities within which railroads already were constructed, or a route already was located at the time of the passage of the act, the vice chancellor held that the legislation was special with respect to a matter as to which the constitution required that it should be general. He found also that the act was invalid because it granted exclusive privileges to certain corporations, namely, to those railroad companies which had filed their routes prior to the passage of the act, excluding from its operation those corporations which might file their routes after that time. City of Burlington v. Pennsylvania Railroad, 56 N.J. Eq. 259.
"In affirming this decision ( 58 N.J. Eq. 547) the Court of Errors and Appeals held the act of 1896 unconstitutional in that it violated the provision which forbids the passing of local or special laws `granting to any corporation, association or individual the right to lay down railroad tracks.' Mr. Justice Dixon, who spoke for the court, declared that, necessarily, the statute could operate only in past instances, whether the railroad companies or the municipalities were regarded, and that neither the companies nor the municipalities differed from others of similar character, relative to the object of the law, save that they had mutually executed writings which intrinsically were without legal force.
"The act of 1896 having thus been declared unconstitutional, the legislature, in 1903, incorporated in the act concernings railroads (Revision of 1903), Pamph. L. 1903, p. 645, § 34. This section reads as follows:
"`In any city, except a city of the first class, the municipal authorities may permit any railroad company to lay and construct its tracks along and upon any street or highway, and may contract with such railroad company, fixing terms and conditions as to maintenance of crossings, speed of trains and payment of consideration for such use, and may do all things necessary to carry out such contracts, and any such contract heretofore made is hereby ratified and confirmed; provided, that no such railroad shall be constructed along any such street or highway until the company shall have acquired the rights of the owners abutting thereon, by agreement or condemnation proceedings.'
"This section later was amended ( Pamph. L. 1905, p. 130) so as to make it applicable to elevated structures as well as to surface tracks.
"The defendant, in resisting the plaintiff's effort to enforce the removal of defendant's tracks from Broad street, relies, in part, upon a grant ratified and confirmed by the section of the 1903 Railroad act above cited. The plaintiff predicates its right to eject the defendant upon the claim that the original grant, or attempted grant, was ultra vires and void, and that the legislation relied upon to confirm it is constitutionally ineffective.
"Thus, as stated by counsel for the plaintiff, the question to be decided in this case is whether the legislation of 1903 cured the defects which inhered in the statute of 1896.
"It is manifest that the purpose of the legislature in the enactment of section 34 of the Railroad act was to overcome the constitutional infirmities which had rendered invalid the earlier legislation on the same subject. Whether this purpose was accomplished must be determined by applying those tests to which the prior statute was subjected.
"In the first place, it is to be observed that the single ground upon which the Court of Errors and Appeals declared the act of 1896 void was that it violated the provision of the fundamental law which forbids the passing of local or special laws granting the right to lay down railroad tracks. The act was held to be special in that it was based upon an improper classification. The invalidity of the classification arose from the limitation of the application of the law to railroad companies which had, prior to the passage of the act, obtained grants to lay the tracks in question, and to municipalities which had theretofore made such grants.
"Section 34 of the Railroad act obviously was designed to meet this objection. It applies to all cities, except cities of the first class, and to all railroad companies. It authorizes any city, save a city of the first class, to permit any railroad company to lay its tracks in streets, and to enter into contracts which such railroad company, fixing terms and conditions for the privilege granted, and ratifies and confirms `any such contract heretofore made.' Such a contract is that entered into between the city of Burlington and the Camden and Amboy Railroad and Transportation Company, the predecessor of the defendant. There would seem to be no question, then, that if section 34 does not run counter to constitutional requirements, the right of the defendant to maintain its tracks in Broad street rests upon the municipal consent made requisite by the statute, expressed in a contract between the city and the railroad, validated and confirmed by legislative act.
"The plaintiff contends that the validating legislation is unconstitutional on the following grounds: It excludes cities of the first class from its operation; it is a special act regulating the internal affairs of towns, granting to a corporation the right to lay down railroad tracks, and granting to a corporation an exclusive privilege, immunity and franchise; it authorizes the taking of private property for public use without just compensation first made to the owners thereof, in violation of both the state and federal constitutions; it relates to the government of cities but does not express that object in its title.
"The objection based upon the exclusion of cities of the first class from the operative scope of the act was considered by Vice Chancellor Reed in Burlington v. Pennsylvania Railroad, supra, and he held that such exclusion could be vindicated on the ground that population, having regard to the purposes of the legislation, may be a proper basis of classification.
"A law is not objectionable on the ground that in its operation it is confined to certain localities if it does not exclude from its sway or effect any place or subject belonging to the class to which it relates. Van Riper v. Parsons, 40 N.J.L. 1.
"If the legislative object be one for the imposition of which population affords a proper basis, an act is general without regard to the number of municipalities affected by it, or to the wisdom or unwisdom of applying its provisions to the classes selected. Calvo v. Westcott, 55 N.J.L. 78, citing Mortland v. Christian, 52 Id. 521, 537; Randolph v. Wood, 49 Id. 85.
"A law, to be general, must operate equally upon all of a group of objects which, having regard to the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves. Central Railroad Co. v. State Board of Assessors, 75 N.J.L. 771, 786.
"The contention that section 34 is special with respect to subjects as to which special legislation is forbidden would be insuperable if well-founded. The reasoning, however, which led the Court of Chancery and the Court of Errors and Appeals, to the conclusion that the act of 1896 was special, when applied to the legislation of 1903, leads to the opposite result.
"The test of a special law is the appropriateness of its provisions to objects which it excludes. If nothing be excluded that should be contained the law is general. Budd v. Hancock, 66 N.J.L. 133; Central Railroad v. State Board of Assessors, supra.
"Even if section 34 be regarded as an act by itself, which, of course, it is not, it would seem to meet the constitutional test. It applies to railroads and cities and to contracts between railroads and cities, relating to the use of streets by railroads. All railroads are included, all such contracts are included, and all cities, save cities of the first class, are included. It has been specifically held, as heretofore pointed out, that the provisions of the section are inappropriate to cities of the class excluded. The legislation, therefore, is not special but general.
"The argument that the legislation authorizes the taking of private property for public use without compensation rests upon the fact that it makes no express provision for compensation to abutting owners along streets wherein tracks were laid prior to the passage of the act. It does provide that no `such railroad shall be constructed along any such street or highway until the company shall have acquired the rights of the owners abutting thereon by agreement or condemnation proceedings.'
"In passing upon the act of 1896, in the case before cited, Vice Chancellor Reed said it was unnecessary to discuss the validity of a similar proviso in that legislation. It seems to me that it still is unnecessary to consider that question. Assuming that the legislation has the effect in this respect claimed for it by the plaintiff, the objection is not available to the plaintiff.
"A question essentially similar to that which is here under consideration was before the Supreme Court in Morgan v. Monmouth Plank Road Co., 26 N.J.L. 99. The reasoning of the court in that case is so clearly pertinent to the present situation that I quote at length from the opinion. The object of the suit was to compel the defendant to remove a fence erected by it in a public road in the township of Marlborough. The proceeding was instituted at the relation of one of the overseers of the highways of the township. It was insisted by the relator that the act under which the defendant corporation appropriated the road to its own use was unconstitutional because it authorized private property to be taken without compensation. In disposing of this the court said: `This certainly involves a serious question and will doubtless receive a careful consideration if ever it should come before us in proper form upon the complaint of proper parties. But the relator is not now here as a land owner complaining that his land has been taken without compensation, or that a trespass has been committed, or a nuisance erected on it. So far, at least, as we can judicially know in this case, nobody complains of such a wrong, and no such case is before the court. This question, therefore, cannot be decided here upon this application. An act is not necessarily void because it contains one unconstitutional feature. It is operative for all purposes except that in which it comes in conflict with the fundamental law; and in that particular the difficulty may be removed, or those affected by it may not choose to complain. There is nothing in the act to prevent the company and the landowners from adjusting their differences, if any exist; the landowners may consent to relinquish, or the company may extinguish their rights.'
"The opinion cites Wellington's Case, 16 Pick. 87, in which the Supreme Court of Massachusetts held that if an act of the legislature appears on the face of it to be an encroachment on the rights of any persons, but would nevertheless be valid if passed with the consent of those persons, the court is bound to presume that such consent was given, and this presumption must prevail in favor of the validity of the act until the contrary is shown by a person having an interest in the maintenance of the rights supposed to be thus injuriously affected, and having a right to call for the interposition of the court for his support and protection; and a stranger can have no right to appear and contest the validity of the act upon such a ground.
"Finally, the criticism that the legislation in question relates to the government of cities but fails to express that object in its title, also, in my opinion, is not tenable.
"The legislation thus criticised is not a distinct statute in itself, but is a section of a comprehensive act concerning railroads. The act of which it is a part plainly sets forth its object in its title. That statute is a general act ( Quigley v. Lehigh Valley Railroad Co., 80 N.J.L. 486, 494), and section 34 certainly concerns railroads. It is true that to a limited extent it likewise concerns cities. But the fact that cities incidentally are affected by a provision of the act, effectuating one of its appropriate objects, does not make necessary a statement of that fact in its title. The governing authorities of a city, desiring to be informed as to the respective statutory rights of a railroad and of a municipality through which the railroad operated, probably would first seek that information by consulting the act concerning railroads; at all events, the title of that act naturally would suggest to the investigator that the subject upon which he was seeking enlightenment would be dealt with in that statute.
"Section 34 does not engraft upon the act of which it is a part a matter foreign, or not properly related, to the object of the statute as reasonably comprehended in its title, but merely sets out the particulars of a legislative purpose incidental to the accomplishment of the general legislative object.
"Article 4, section 7, paragraph 4 of the constitution does not require that the particular cases to which an act is entitled to apply shall be set out in the title, but only that the title of a statute shall express its object in a general way, so as to be intelligible to the ordinary reader. The constitution does not contemplate that the title shall be an abstract or index of the contents of the act, but that it shall be a label. Quigley v. Lehigh Valley Railroad Co., supra; Gottuso v. Baker, 80 N.J.L. 520.
"The evil intended to be guarded against was not the inclusion in one act of more than a single matter but the inclusion therein of matters not properly related among themselves. Newark v. Mount Pleasant Cemetery Co., 58 N.J.L. 168, citing Stockton v. Central Railroad Co., 50 N.J. Eq. 52.
"Since the plaintiff's right to a verdict in this case concededly depends upon a finding as a matter of law that section 34 of the General Railroad act of 1903 is unconstitutional, and since, for the reasons I have hereinbefore set forth, I am of the opinion that the plaintiff has not sustained the burden of establishing the constitutional invalidity of that section, I find that, as against the plaintiff, the defendant is lawfully in possession of those portions of Broad street, in the city of Burlington, described in the complaint, and in which its tracks are laid and its station is erected.
"The verdict, accordingly, is for the defendant."
For the appellant, Ernest Watts and V. Claude Palmer.
For the respondent, Bourgeois Coulomb.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Judge Jess in the Circuit Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, MINTURN, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, JJ. 13.
For reversal — None.