State v. City of Cape May et al.

tions in the exercise of the police powers implied from the authority granted by the charter of the city to the council. Such ordinances, being reasonable, will be sustained. It is difficult to conceive, in view of the statutory power conferred upon the city council, upon what ground this ordinance can be attacked, as the improper exercise of the power of the regulation of the use of the street for the protection of the traveling public. The franchise or privilege of the prosecutor to operate its cars in the streets of the city is founded upon the grant by the city. The reasonable control of this use of the streets of the city has not been divested by the ordinance under which the railway is operated. The grant was to use the streets with cars of the prosecutor propelled by electric power, a power capable of producing a high and dangerous rate of speed, from which collision would result, perhaps, in probable serious injury to others in the use of the streets. The law is well settled in this State that these street railways have no exclusive use of the streets, and not even the exclusive use of the tracks upon which the cars are operated. The legislative power to control and regulate the streets has been delegated to the governing body of the municipality, and it is under this power that the privilege has been conferred upon the prosecutor, and it is still within the power of the city council by invocation of this same legislative authority to so regulate the use of the streets as shall render their use by electric cars consistent with the safety of the general public from accident and injury. The ordinance can be tested only in view of the extraordinary propulsive power by which such cars are operated, and the danger arising from the high rate of speed which may be obtained, and other dangers incident to their operation in the streets; and reasonable regulations in the shape of ordinances to protect the ordinary public travel upon the highways have always been supported whenever questions as to the validity of such regulations have arisen. The

State v. City of Cape May et al.

ordinance under review in matter of principle in no wise differs from ordinances regulating the rate of speed of the cars, or other ordinances owing their origin impliedly to the authority vested in the municipality to regulate the use of its streets. The legislature, when it authorized the use of the public streets for these purposes, was presumed to have intended that the grantee of the franchises should hold its privileges subject to such regulations as were reasonably necessary for the common use of the street for a street railway and for ordinary travel. North Hudson Co. R. Co. v. Mayor, &c., of Hoboken, 41 N. J. Law, 71; Consolidated Traction Co. v. City of Elizabeth (N. J. Sup.), 34 Atl. Rep. 146. Nearly all kinds of reasonable regulations can be imposed upon street railways in the use of the streets by the municipality, under the authority granted by the Legislature to pass ordinances to regulate the use of the streets, and such regulations are never declared unlawful on the ground that they impair the franchises of the companies. The power granted to municipal bodies to legislate, by ordinances, is a grant to a subordinate body, and its legislative acts, when counter to the acts of the State Legislature, must give way; but these companies nevertheless hold their franchises subject to such municipal regulations as do not unreasonably interfere with the exercise of the franchises conferred by the Legislature. The franchises are exercised upon a public highway, for the public benefit, which highway is acquired and improved for the benefit and advantage of the public at large. The position is different from that of a railroad company exercising its franchises upon a roadbed of its own. The grantee in the former case is subject to municipal regulations of a greater scope in the interest of the public at large than would be justifiable in the case of companies occupying and using their own road beds. Consolidated Traction Co. v. City of Elizabeth (N. J. Sup.), 34 Atl. Rep. 146; Allen v. Jersey City, 53 N. J. Law, 522;

State v. City of Cape May et al.

Trenton Horse Ry. Co. v. City of Trenton, 53 N. J. Law, 132; Booth St. Ry. Law, secs. 223-230. Under this power, ordinances regulating the use of the streets by street railways have become frequent, especially so since the introduction of electricity as a motive power, with its capacity for a high rate of speed, as well as other dangerous and obstructive capacities. Their operation must be reasonably sale, reasonably consistent, and in harmony with the legal customary use of the street by the general public; and ordinances to enforce this rule of law are reasonable in purpose and effect. Even direct legislative authority to a street railway company to carry passengers over the streets of a city does not exempt the corporation from municipal or police control. The principle is a general one that when a business is authorized to be conducted by a corporation within a municipality the latter presumptively possesses the same right to regulate it that it has over like business conducted by private persons A grant to a corporation of the right to own property and transact business affords no immunity from any police control to which the citizen could be subjected; and a reasonable regulation of the enjoyment of the franchise is not a denial of the right, nor an invasion of the franchise, or a deprivation of its property, or interference with the business of the corporation. The company is presumed to know that the business of operating a city street railway must be conducted under such reasonable rules and regulations as the municipality may impose, and subject to its share of the burdens incident to the conduct of the municipal government. Dill. Mun. Corp. (4th ed.), sec. sec. 720; Trenton Horse Ry. Co. v. City of Trenton, 53 N. J. Law, 132, and cases cited; Consolidated Traction Co. v. City of Elizabeth, supra. Ordinances regulating speed, and directing where stops should be made, have been held reasonable (Dill. Mun. Corp., 4th ed., sec. 713; Hanlon v. Railroad Co., 129 Mass. 310; Booth St. Ry. Law, sec. 229); to

State v. City of Cape May et al.

compel the removal of earth falling on the track (Pittsburgh & B. P. Ry. Co. v. Borough of Birmingham, 51 Pa. St. 41); to compel a company to employ a conductor to assist the driver (Trenton Horse Ry. Co. v. City of Trenton, 53 N. J. Law, 132); to keep the street between rails in repair (North Hudson Co. R. Co. v. Mayor, etc., of Hoboken, 41 N. J. Law, 71); to pass such ordinances as may be necessary for the common use of streets for a street railway and ordinary travel (Id.). The city can require a greater degree of care on the part of the company in running its cars, as a consideration for granting the franchise, than may be required by law towards one in the ordinary use of the street. Fath v. Tower Grove & L. Ry. Co., 105 Mo. 537. Ordinances to compel the cleaning and sprinkling of tracks have been frequent, and their validity sustained. Cars can be required to be run at certain hours, and at fixed intervals; and the corporation can be required to remove snow from the streets. Broadway & S. A. R. Co. v. City of New York, 49 Hun, 126. Ordinances have been upheld prohibiting the use of salt or saltpeter or salt of any character on the tracks. Consolidated Traction Co. v. City of Elizabeth, supra. The use of sand on the tracks can be prohibited by ordinance. Dry Dock, E. B. & B. R. Co. v. Mayor, etc., of New York, 47 Hun, 221. An ordinance has been held valid which prevented cars driven in the same direction from approaching within 300 feet of each other. Bishop v. Railroad Co., 14 R. I. 214. The dangers created by the use of electricity as a propulsive power of street railways of necessity creates a new department of police regulations. The The use of an agency so dangerous as electric power is a proper subject for the exercise of police control, for the purpose of obviating danger so imminent even in its most careful use. The ordinances which confer the right to construct electric railways in the public streets carefully guard the method of construction, whenever it is important for the protection

State v, City of Cape May et al.

of public or private interests to do so. Kennelly v. Jersey City, 57 N. J. Law, 292. Such regulations may be contained in the grant of the privilege to use the street for the purposes of an electric street railway, as conditions annexed to the grant; but their absence there does not prevent the municipality from their subsequent enactment, if they be reasonable for the protection to the ordinary uso to which the highway is lawfully devoted, and in the proper exercise of the general power of the State, conferred upon a subordinate political body, to protect the lives and property and promote the welfare of its citizens, and all other persons, natural or artificial who have the right to claim the protection, in these respects, of the law. The maxim "Sic utere tuo ut alienum non laedas," is quite applicable to a street railway operated by electric power in its use of the streets of a city; and ordinances enforcing the doctrine are not only valid, but salutary as an exercise of municipal regulation.

The construction of the road and its equipment would seem reasonably to be a subject of municipal control, when, as in this case, there is nothing in the legislative grant to construct and maintain the street railway, which forbids such control, and where, as in this case, the charter of the city confers power upon the city council by ordinance not only to regulate the use of the streets, but to prescribe the manner in which corporations and persons shall exercise any privilege in the use of the same, and empowers them to make and establish such ordinances as they may deem necessary and proper for good government, for the maintenance of order in the protection of persons and property. An ordinance requiring splices on electric lines to be insulated was declared a valid exercise of municipal control. Clements v. Louisiana Electric Light Co. (1892), 11 South. Rep. 51. An ordinance providing guard wires in the operation of an electric street railway, where several electric wires crossed each other at different