In Peace v. McAdoo (110 App. Div. 13) this same section of the Greater New York Charter was considered by the court. It had not then been amended to its present form, but it then gave authority to the police department to regulate the movement of vehicles in the streets, etc., and the commissioner of police, acting pursuant to this authority, made an order prohibiting traffic altogether in parts of certain streets, and it was held that such a regulation could not be sustained because power to regulate did not include power to prohibit.Summary of this case from Castro v. New York Railways Corp.
December 29, 1905.
James D. Bell [ John J. Delany with him on the brief], for the appellant.
Sanders Shanks, for the respondent.
On November 26, 1904, the police commissioner of the city of New York made certain general rules for street traffic, which in part prohibited generally the passage of vehicles in parts of certain streets. The Special Term has entered an interlocutory judgment on demurrer, which declares that such part of the rules is null and void. This is an appeal by the police commissioner from that judgment.
Such rule is in exercise of the police power which primarily is lodged in the State itself ( New Orleans Gas Co. v. Louisiana Light Co. 115 U.S. 650), and which is expressed by legislative enactment. A police officer, who is but a public or State officer, vested with such powers and duties as are conferred by statute ( Woodhull v. Mayor, etc., 150 N.Y. 450, 454), has of course no inherent police power. The Legislature, as the assembly of the sovereign people, may delegate such power of legislation (Dillon Mun. Corp. [4th ed.] § 141; Cooley Const. Lim. [7th ed.] 172), and frequently confers it upon the local legislative body proper of a municipality. Freund on Police Power (§ 10) writes: "The exercise of the police power for the protection of safety, order and morals constitutes the police in the primary or narrower sense of the term. It is a power so vital to the community that it is often conceded to local authorities of limited powers. It is the police power in this narrower sense of the term which the Supreme Court of the United States concedes on principle to the States even where its exercise affects interstate and foreign commerce." There are instances where such power has been delegated beyond the strictly local legislative body of a municipality. ( People ex rel. Cox v. Special Sessions, 7 Hun, 214; People ex rel. Lieberman v. Vandecarr, 175 N.Y. 440; Commonwealth v. Plaisted, 148 Mass. 375, and authorities cited.) A reading of section 43 of the Greater New York charter, which confers generally this power upon the board of aldermen, indicates that there is some legislative power in the head of the department of police.
Section 300 of the charter authorizes and empowers the police commissioner to make, adopt and enforce rules and regulations for the government, discipline and administration of his department, the police force and its members. The rule in question is made pursuant expressly to section 315, which in part provides: "It is hereby made the duty of the police department and force at all times of day and night, and the members of such force are hereby thereunto empowered to * * * regulate the movement of teams and vehicles in streets, bridges, squares, parks and public places."
The question then is whether under these sections the commissioner of police could by general rule prohibit the movement of teams and vehicles generally in parts of a city street. I think that he could not, for the reason that power to regulate is not power to prohibit.
A statute of delegation of powers is strictly construed, "and any reasonable doubts as to the existence of a particular power resolved against the same." (Endl. Interp. Stat. § 352.) The author in this section writes: "Alike applicable to both is the principle that rules and by-laws are construed like other provisions encroaching on the ordinary rights of persons. They must on pain of invalidity be reasonable and not in excess of the statutory power authorizing them, or repugnant to that statute or to the general principles of law."
The very idea of a street imports the right of the general public to pass and repass thereon throughout all parts thereof. In People v. Kerr ( 27 N.Y. 188, 194) the court says: "The right of the public, that is, of the people of the State, in a street or highway, is a right of passage. In the ordinary use of the highway, it is a right to pass and repass over its surface on foot or in carriages at pleasure." In Smith v. McDowell ( 148 Ill. 51) it is said: "The municipality in respect of its streets is a trustee for the general public and holds them for the use to which they are dedicated. The fundamental idea of a street is not only that it is public, but that it is public in all its parts for free and unobstructed passage thereon by all persons desiring to use it."
When the Legislature confers upon one whose duties are primarily executive a power to deal with an existing public right, every intendment is that the Legislature would preserve the right, and not thus afford a means to destroy or to impair it. I think that the Legislature has preserved this right in that it has conferred the power of regulation only. To regulate implies that there exists the subject which is to be regulated. The right of regulation is restricted to the "movement of teams and vehicles in streets," etc. This expression recognizes the existence of such a thing, and such movement in every part of a street is a public right. If, under the guise of a regulation, that movement is forbidden in any part of a street, there is, of course, an impairment of the right — a pro tanto prohibition against its exercise. The following authorities sustain my interpretation of the words "to regulate," and of the power conferred by the right of regulation: Anderson v. City of Wellington ( 40 Kan. 173; 2 L.R.A. 110); Ex parte Patterson ( 42 Tex.Crim. 256, 260; 58 S.W. Rep. 1011, 1013); McConvill v. Mayor ( 39 N.J. Law, 44); Thousand Island Park Assn. v. Tucker ( 173 N.Y. 203); City of Toronto v. Virgo (App. Cas. , 88); People v. Gadway (28 N.W. 101); Andrews v. State (3 Heisk. [Tenn.] 165). I find nothing adverse in the definition of MARSHALL, Ch. J., in Gibbons v. Ogden (9 Wheat. 1, 196, 209), cited by the learned corporation counsel. The learned chief justice defined "regulate" as to "prescribe the rule by which commerce is to be governed," and afterwards said that the word implied "full power over the thing to be regulated." But to prescribe a rule for government, even though it afford the exercise of full powers, does not imply the power to prohibit absolutely the thing to be controlled. In Cronin v. People ( 82 N.Y. 318), also cited by the learned corporation counsel, the power considered was to regulate the "erection, use and continuance," and the court held that the power applied to the "erection," i.e., so that the territory whereon the slaughterhouse could be placed might be prescribed. But the subject of the present regulation is not a business which essentially must have definite location, but a movement through all parts of a public street, which to exclude therefrom or any part thereof is to affect the very thing itself. And further, in Cronin's Case ( supra) the court said that the power to regulate implied "a power of restriction and restraint." But there can be full restriction and restraint without prohibition, nor do those words necessarily imply the power to prohibit. ( Matter of Snell, 58 Vt. 207, 209.) In Jorgensen v. Squires ( 144 N.Y. 280, 284) ANDREWS, Ch. J., uses the word aptly in the expression "while such uses may restrict somewhat the free and unembarrassed use of the streets for pedestrians, * * *."
I am not cited to any authority, and I find none, which holds that under the power of regulation any public body or officer can, as a general rule, prohibit the passage of all vehicles to and fro in any part of a public street. There are cases which uphold the exclusion of heavy drags lest they break into the roadbed, or of vehicles which carry stuff offensive to the public or dangerous to the public health or safety. There are cases which uphold the exclusion of persons when they misuse the street so as to assemble crowds to block the way of the general public. There are cases which sustain a regulation that restricts the vehicles of a stage line to certain prescribed streets as routes. But these judgments are based not on a derogation of the general public right, but in furtherance of it, in that the right is general. I make no attempt to define the powers of the police commissioner under these statutes, but I have no doubt that he could by general rule exclude teams or vehicles from parts of a street, or even from a street, in case of an emergency, like a conflagration or an abnormal congestion of traffic due to some unusual cause. I have no doubt that he can bring order out of a chaos of vehicles by prescribing general rules for relative lines of travel, for alignment, for halting a movement for a time in order to afford relative rights of passage to other teams and vehicles or to pedestrians, and, in general, he may by general rules execute that policy which under his present direction has both facilitated and safeguarded passage in our streets.
If I am right in my view of the power, this disposes of the present appeal and leads to an affirmance of the judgment. There is no need to discuss the reasonableness of the regulation or any other feature of it. I have sought to point out that the police power and the exercise of such power by a subordinate are quite different things, with the difference that exists between a sovereign and his servant.
The judgment is affirmed, with costs.
HIRSCHBERG, P.J., and HOOKER, J., concurred; BARTLETT and WOODWARD, JJ., dissented.
Interlocutory judgment affirmed, with costs.