March Term, 1865
J.L. Jernegan T.C. Fields, for the appellants.
Waldo Hutchins John Slosson, for the respondents.
The counsel for the plaintiff, in his seventh point, contends that the common council of the city of New York had no power to grant to the defendants the railroad franchise referred to in the pleadings in this action, and, consequently, no right to operate the road either by way of license or easement vested in the defendant. It seems to me that this ground is scarcely tenable. Certainly not as a reason for sustaining the plaintiffs' action. Its object is to recover from the company a penalty for a breach of the corporation ordinance in omitting to pay for and accept what is termed a license. No usurpation or wrongful exercise of the franchise is alleged, but the action assumes that the company's uses of the street for the transit of passengers is rightful in all respects, except in the neglect or refusal to pay for and accept the license. Neither the grant to Pearsall and his associates nor the assignment and transfer of their interest to the defendant are open to controversy in this litigation. After the grant of the franchise, the passage of the ordinance, and the prosecution of the action to recover the penalty for the omission to take out the license, the common council are not now in a position to deny the legal existence of the franchise.
To enable the city to maintain this action it is not enough, I apprehend, to show that its powers and duties as a legislature, exercising a part of the sovereign authority, are not impaired or affected by its acts as a person making conveyances of property or grants of incorporeal interests, having the nature and qualities of property to others. The rights of municipal corporations to property in lands and its usual incidents, and to create and establish ferries and railroad franchises, are quite distinct and separate from their duties as legislatures, having authority to pass ordinances for the control and government of persons and interests within the city limits. The latter are powers held in trust, as all legislative powers are, to be used and exercised for the benefit and welfare of the whole community, while the former are property, in the ordinary sense, to be acquired and conveyed in the same manner as natural persons acquire and transfer property, and subject to the operation of such ordinances and by-laws as may be lawfully passed for the government and control of the city. In this respect there can be no distinction between lands the title to which is derived mediately or immediately from the city, with covenants of title and warranty, and lands the title of which is acquired from private individuals. The two cases of the Presbyterian Church v. The City of New York (5 Cowen, 538), and Coates v. The Mayor, c. (7 Cowen, 585), assert this doctrine, holding that lands in the one case granted by the crown and in the other by the city itself for cemetery purposes, and devoted to such uses from time immemorial, were, nevertheless, subject to the ordinances of the corporation prohibiting intra mural interments. In the first named case, Ch. J. SAVAGE says: "In ascertaining their rights and liabilities as a corporation, or as an individual, we must not consider their legislative character. They had no power as a party to make a contract which should control or embarrass their legislative powers and duties. Their enactments in their legislative capacity are to have the same effect upon their individual acts as upon those of any other person or the public at large, and no other effect.
The plaintiffs must show, however, that the subject of the ordinance which they are seeking to enforce, is one over which they have authority to legislate, and that it is a regulation of police and internal government, and not the mere imposition of a duty or sum of money for the purposes of revenue. The agreement between the plaintiffs, and Pearsall and his associates, of the 15th December, 1852, has all the properties of a contract. The latter were to have and enjoy the use of the streets and avenues mentioned in the first resolution of the common council for the purpose of constructing and operating thereon a railroad for the convenience of public travel. The rails were to be put down by Pearsall and his associates in the manner prescribed, and they were also to pave the streets in and about the rails in a permanent manner, and keep the same in repair to the satisfaction of the street commissioner. They were also to run a car on the road for the convenience of public travel, each and every day, both ways, as often as every fifteen minutes from 5 to 6 o'clock, A.M.; and every four minutes from 6 o'clock, A.M. to 8 o'clock, P.M.; every fifteen minutes from 8 o'clock, P.M. to 12 o'clock, M.; and every thirty minutes from 12 M. to 5 o'clock, A.M., and as much oftener as the public convenience may require, under such directions as the common council may from time to time prescribe. All this has to be performed by the grantees as the consideration for the franchise granted them. Assuming that the common council had power to make the grant, then its acceptance by Pearsall and his associates, signified by the execution of the agreement with the conditions annexed thereto, and the duties and obligations resulting therefrom, invested the latter with the right of property in the franchise which the common council could not take away or impair by any subsequent act of its own. The resolutions which were incorporated into the contract were not an act of legislation which the common council could modify or repeal without the consent of the other party to the instrument. ( Dartmouth College v. Woodward, 11 Wheat., 511.) The grantees, it is true, were by the resolutions to comply with the regulations of the street commissioners and the common council in building the road and running the cars thereon, and also such other regulations or ordinances as may be passed by the common council relating to the road. This right of regulation and control the plaintiff specially reserved in the instrument containing the grant, in addition to their general powers to make ordinances and regulations of police for the government of the city. This brings me to consider the nature and character of the ordinance for the breach of which this action is brought.
Section 106 declares that "each and every passenger railroad car running in the city of New York below 125th street, shall pay into the city treasury the sum of fifty dollars annually for a license, a certificate of such payment to be procured from the mayor, except the small one-horse passenger cars, which shall each pay the sum of twenty-five dollars annually for such license as aforesaid." Section 2 declares that "each certificate of payment of license shall be affixed to some conspicuous place in the car, that it may be inspected by the proper officer." And section 3 prescribes the penalty for running a car without the proper certificate. That is all. There is nothing for the railroad corporations to do but to pay to the mayor the sum of fifty dollars annually for each car, and receive in return a license or certificate that the money has been paid. The ordinance imposes no duties to be observed by the company or its servants, but the single act of paying the money. It prescribes all regulations in regard to the size, dimensions, comfort and cleanliness of the cars, the speed at which the same shall be run, the manner of receiving and discharging passengers, their numbers and names, and the stations at which they shall stop. Regulations of police are regulations of internal or domestic government, forbidding some things and enjoining the performance of others for the security and protection, and to promote the happiness of the governed. The only act enjoined by the ordinance in question is the payment of the fifty dollars, and the only act which it forbids and prohibits is the running of the cars without the payment of the money. If the legislature should by law require every head of a family throughout the State to pay to the collector the sum of twenty dollars, and take his receipt therefor, it would be a fiscal measure, an expedient to replenish the treasury, not a regulation of police prescribing a rule of action and conduct. So with this ordinance, call what it requires by the name of license or certificate of payment, or anything else, its primary, and indeed, only purpose is to take from the company, under coercion of the penalty which it imposes, the sum of fifty dollars annually for each car run upon the road for the benefit of the city. The certificate which the company is to receive upon payment being made, is called a license in the ordinance. A license to do what the ordinance does not say — and indeed it could not, with truth, say — a license or permission to employ the car in the transportation of passengers upon the road, for the absolute right to do that which had been not only acquired, but positively enjoined upon the company by the stipulations of the grant of the 15th of December, 1852. It is in vain, therefore, to speak of it or to treat it as a license, or a regulation of police. It is the imposition of an annual tax upon the company in derogation of its rights of property, and on that account is unlawful and void.
The judgment of the Supreme Court should be affirmed, with costs.