City of New York v. Interurban Street Railway Co. , 86 N.Y.S. 673 ( 1904 )

Giedebsleeve, J.

The questions which arise on this appeal relate to the validity and reasonableness of a city ordinance, approved by the mayor of the city of Hew York, July 22, 1902, which in substance requires street surface railroad companies to carry a passenger “to any regular stopping place desired by him upon such car’s route,” without change of cars except for transfer to a connecting line going in another direction or in case an accident renders compliance with the ordinance impossible.

The action was brought to recover the penalty of $100 imposed by the ordinance for its violation. The learned trial judge dismissed the complaint, holding that the board of aldermen was not authorized to pass such an ordinance, and that the provisions of the General Eailroad Act (Laws of 1890, chap. 565) governed and controlled such a regulation as is provided for in the said ordinance.

The facts disclosed on the trial were that in May, 1903, William F. Peters, J. Arch. McGovern1 and Alexander Saxe boarded a north-bound car of the defendant at or below Fourteenth street, desiring to be carried respectively to One Hundredth street, Hinety-eighth street and One Hundred and Fourth street and Oolumbus avenue.1 The outside of the car in question bore a sign on which the wrords “ Oolumbus Avenue ” were printed. These three persons had a common experience ; they were carried to Oolumbus avenue and Seventy-ninth street, where they were told by the conductor to get out and take the car ahead; this they refused to do, and remained in the car which they had boarded down town. This car was then switched on to the south-bound track and taken over the same route by which they came to the South ferry, where it remained twenty minutes, and was then moved to Oolumbus avenue and Fifty-ninth street. There it was run into the car barn, these passengers still being in it, and kept there for at least forty minutes, after which it was taken out and proceeded up Oolumbus avenue, carrying the passengers to their several destinations. Mr! Saxe paid two fares. ■ The Oolumbus avenue line of cars runs, ordinarily, to One Hundred and Tenth street. When the car was at Seventy-ninth street the conductor said that the lights in it were not working. No evidence was offered by the defendant.

The ordinance in question declares, section 1, that “ every car * * * operated by street surface railroad companies in the streets * * * of the city of New York, shall carry throughout its route on the outside, in front and on top of each and every car, so operated, a sign board or placard upon which shall appear, conspicuously, the destination of said car. Every such company must carry for a single fare upon such car, without change therefrom, each and every passenger to any regular stopping place desired by him upon said ear’s route in the direction of the destination so designated; and for every violation of the ordinance there shall be recoverable against the company so offending a penalty of $100, in an action to be brought in the name of the city of New York.” Section 2 provides that “this ordinance shall not apply to a transfer * * * nor where, by reason of any accident, compliance with the ordinance is rendered impossible.” The counsel for the defendant argues that there was no violation of the ordinance because it only requires that the passenger he carried to the destination named on the sign upon the front of the car which, in this case, was “ Columbus Avenuethat the words “ Columbus Avenue ” did not indicate any particular point on that avenue as the destination of the car taken by Hr. Peters and his fellow passengers; that that destination was not a particular part of the avenue to be specified by the passenger, but that the point at which the car first reached Columbus avenue was the destination designated in the ordinance and, therefore, the passenger’s destination. This argument is somewhat overwrought in refinement. If sound it proves that Columbus avenue on the car signs means to and not through that avenue; and that, if the defendant arbitrarily chose to stop its cars at Fifty-ninth street, where Columbus avenue begins, that is the destination which the ordinance contemplates, and the only one to which the defendant is bound to carry its passengers though they desire to be carried to One Hundred and Tenth street. Effect must be given to that part of the ordinance which requires the defendant to carry “ every passenger to any regular stopping place desired by him, upon such car’s route.” The desire of the passenger determines his destination, not the will of the railroad company. This is the only reasonable interpretation of the ordinance. Upon our construction of the ordinance, the fact.of its violation was abundantly established on the trial, and the only questions to be determined are: first, whether the board of aldermen possessed the power to pass the ordinance; and second, whether, if it had that power, the ordinance is reasonable in its requirements.

The defendant’s position is that the effect of the Railroad Law (Laws of 1890, chap. 565) was to vest in the State-board of railroad commissioners created by that law exclusive power and authority to regulate the operation of railroad cars throughout this State. Laws of 1890, chap. 565, § 161. That part of the Eailroad Law which defines the duties and powers of the board of railroad commissioners in substance and effect is that if, in the judgment of that board, after a personal examination, it should appear, in the case of any railroad in the State, that it needs repairs, additional rolling stock, addition to or change in station-houses, or additional terminal facilities; or that any change of rates of passenger fares or freight; or change in the mode of operating or conducting its business, is reasonable and expedient for promoting the security, convenience and accommodation of the public, the board shall notify the same to the corporation and give it an opportunity to be heard thereon; and if the corporation thereafter refuses or neglects to make such repairs and changes within a reasonable time and fails to satisfy the board that no action is required to be taken by it, the board shall fix the time within which the changes shall be made; that it shall be the duty of the corporation owning and operating the railroad to comply with such decisions and recommendations of the board as are just and reasonable. If it fails to do so the board shall present the facts in the case to the Attorney-General for his action and report the same to the Legislature. To characterize this statement as a legislative delegation of power to this board to do anything whatever which requires the exercise of authority would be a perversion of language. At the most it confers upon the board of railroad commissioners general supervision of all railroads (§ 157), that said commissioners in the interest of the public may ascertain the physical conditions and details of operation for the purpose of recommgnding improvements. This construction seems too obvious for serious argument or citation of authority. In two cases substantially this view of the act has been taken by the Court of Appeals.

In People v. Rome, W. & O. R. R. Co., 103 N. Y. 95, 106, which arose under the former Railroad Act (Laws of 1882, chap. 353), largely the source of the present Railroad Law, the court says: “ The decision of the board of railroad commissioners has no binding or conclusive authority * * * Its decision was merely Advisory and recommendatory.”

In People v. N. Y., L. E. & W. R. R. Co., 104 N. Y. 58, 64, on the same subject the court says: “ Its proceedings and determinations, however characterized, amount to nothing more than an inquest for information.” The court then proceeds to show how futile and how easily set at naught are all the efforts of the commissioners to effect any improvements in the management of the railroads placed under their supervision. P. 65.

Did the Legislature intend by the enactment of the Railroad Law to take from the city of Rew York that degree of autonomy which it has enjoyed, in common with large municipalities throughout the country for years, and replace it by creating this board of commissioners and putting it into office without the semblance of the power necessary to make its services of any value to the public % I think not. Every consideration of justice and the public convenience which by common consent enters into the subject of municipal government demands for the city of Rew York the right of self-government so far, at least, as regards the use and users of its vast system of public highways, to the end that the comfort and convenience of the public may be conserved and protected. This principle has been recognized and acted upon by the Legislature and the courts of this State for a long period of time, and under it a system of local laws has grown up covering the whole field of municipal government. Assuredly, the Legislature never intended, by the appointment of the board of commissioners, to repudiate the principle of municipal self-government, upon which it has to this day almost invariably acted in dealing with the city of New York. The charter of 1897 vested the legislative power of the city in the common council and board of aldermen, continued in full force and effect all ordinances then in force, and gave them power to grant railroad franchises and pass all ordinances to carry those franchises into effect. It also declares in positive terms that the city shall not part "with the rights and duties at all times to exercise in the interests of the public full municipal superintendence, regulation and control in respect to all matters connected with grants of railroad franchises. Laws of 1897, chap. 378, §§ 17, 41, 45, 50, 74, 75. And the same provisions are contained in the charter of the Greater New York. Laws of 1901, chap. 466, §§ 17, 41, 50, 75. The attitude of the Legislature, as exhibited in the spirit of its past legislation concerning the city, and especially the provisions of the charter of the Greater New York, evinces no intention to abridge or restrict the power of-self-government which it has enjoyed from an early day to the present time. We, therefore, conclude that the act of 1890 (chap. 565) did not have the effect to take from the city of New York the right to make the ordinance on which this action is based and to enforce the penalty for disobeying it.

We entertain no doubt that the ordinance was- reasonable in its requirements. Indeed nothing could more completely vindicate the reasonableness and necessity than the circumstances which attended its violation in this case, as shown upon the trial; besides, the presumption is that the ordinance is reasonable and it was for defendant to show that it was unreasonable. Mayor v. Dry Dock, E. B. & B. R. R. Co., 112 N. Y. 137, 133 id. 104. This it did not do.

There was no proof on the trial of any accident which rendered compliance with the ordinance impossible. The remark of the conductor to the passengers about “ the lights not working ” in the car, brought out on the cross-examination of plaintiff’s witness, was not evidence of such an accident. If the defendant claimed exemption from the penalty sued for, it should have brought itself within the proviso of the ordinance by proof of an accident such as is specified in the ordinance, but none was offered.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., concurs.