
    The City of Brooklyn, Appellant, v. The Nassau Electric Railroad Company, Respondent.
    
      Street’railroads — 'a consent of a common council that a street railroad, may maintain a certain rate of speed,, is subject to change — police power.
    
    A stipulation, contained in the consent of the common council of a city to the construction of a street railroad operated by electricity, that the rate of speed should in no' instance exceed ten miles per hour, is not available to the railroad company as a contract giving it the right thereafter to operate its cars at that speed.
    The provisions of the Railroad Act (Laws of 1890, chap. 565, §98), that the proper local authorities “may make such reasonable regulations and ordinances as to the rate of speed (or) mode of use of''tracks * * * as the interests or convenience of the public may require,” grant to a common council a continuous power to control the speed of street cars, and one common council cannot bargain away the rights of its successors to exercise such power.
    
      Semble, that the rate of speed of cars in streets and highways cannot be made the subject of contract either by the Legislature or by the common council of a city, as the matter is within the police power of fhe State, and the Legislature cannot divest itself of such power.
    Appeal by the plaintiff, The City of Brooklyn, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the countjr 0f Kings on the 5th day of December, 1896, upon the decision of the court reversing upon appeal a judgment of a justice of the peace rendered in favor of the plaintiff.
    
      
      Joseph A. Burr, for the appellant.
    
      Henry Yonge, for the respondent.
   Cullen, J.:

This action was brought to recover a penalty for the violation of an ordinance of the city of Brooklyn, enacted in April, 1895, limiting the speed of street railroad cars to six and eight miles an hour in certain, prescribed portions of the city. The case does not differ from that of City of Brooklyn v. Brooklyn City & Newtown R. R. Co. (11 App. Div. 168), but the respondent raises a point not considered in the former case.

The consent given by the city on June 30, 1893, to the construction of the defendant’s. road, which, both'by the Constitution and the statute (Chap. 565, Laws of 1890), was a prerequisite to the acquisition of a complete franchise to build a street railroad, contained this provision:

“ In the operation of its cars by electric, power the said company may run them at such speed as shall enable it to secure to.the public the advantage of better and more speedy transit, with due and proper regard to the safety of others using the public streets, but such rate shall in no instance exceed ten miles per hour.”

It is now claimed that. this condition constituted a contract with the defendant that it should always thereafter have the right to operate its cars- at the rate of .ten miles an hour.

First. We think this is not the true construction of the consent, In Railway Co. v. Philadelphia (101 U. S. 528) the appellant was incorporated under a special statute which provided, the said company shall also pay such license for each car run by said company as. is now paid by other passenger railway companies in the city of Philadelphia.” At. that time the license fee was thirty dollars. By a subsequent statute it was enacted that the license fee for all companies in the city of Philadelphia should be fifty -dollars. The defendant claimed that its charter constituted a contract by which it was,compelled to pay only thirty dollars a car, and that the subsequent statute could not impair its rights. The Supreme Court of the United States held that this contention could not be sustained. It was there said (p. 535): “ The language of the act of incorporation referred, to does not amount to a contract of any kind, and certainly not to such a contract as that 'attempted to be set up by the defendants, * * * but it is plain that there is nothing in the language of the section to warrant the court in holding that the Legislature intended to contract that the license charged for such passenger cars should never exceed the annual sum of thirty dollars.”

Second. The Railroad Act itself would seem to prohibit any such contract by the common council, for by section 98 it is enacted: Such authorities (proper local authorities) may make such reasonable regulations and ordinances as to the rate of speed, mode of use of tracks * * * as the interest or convenience of the public may require.” This power is plainly continuous, and one common council could not bargain away the right of its successors to exercise the power.

Third. We very much doubt whether the regulation of the rate of speed of cars in streets and highways could be the subject of contract either by Legislature or common council. It is settled law that the police power extends “ to the protection of the lives, health and property of the citizens and to the preservation of good order and the public morals. The. Legislature cannot, by any contract,, divest itself of the power to provide for these objects.” (Beer Co. v. Mass., 97 U. S. 25; Fertilizing Co. v. Hyde Park, Id. 659 ; Butchers’ Union Co. v. Crescent City Co., 111 id. 746. See N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 557.)

The case of City of Burlington v. Burlington Street Railway Company (49 Iowa, 144), relied on by the plaintiff’s counsel, is not. in point. It was thei’e held that the city, having under proper authority granted the defendant the right to construct a double-track road on certain streets, a subsequent ordinance forbidding the construction of more than a single track on those streets was invalid. This court has held that where a high road, upon' which a company has acquired a valid and complete franchise to construct a street, surface railroad, was incorporated into a parkway, the company could, not be deprived of its franchise or compelled to construct its railroad for the whole length of the highway ■ through a tunnel. ( Coney Island, Fort Hamilton & Brooklyn R. R. Co. v. Kennedy, 15 App. Div. 588.)

A franchise to construct and maintain a railroad is property. The Legislature, by the grant or creation of such property, does not impair or limit the exercise by it of the police power. • The presence of railroad cars on a highway may to some extent obstruct travel, the same as that of other vehicles, but of itself does not imperil life or limb. But an excessive rate of speed of any vehicles may constitute a serious menace to both. It' is as much the duty of the Legislature to protect the traveler from unnecessary danger to his person while on the highway as his health from infection while in his house, and we think'the power to perform .neither obligation can be contracted away.

. The judgment of the County Court should be reversed and of the justice of the peace affirmed, with costs.

All concurred.

. Judgment of County Court reversed and that of the justice affirmed, with costs.  