
    The Mayor, etc., of New York, Resp’t, v. The Dry Dock, East Broadway & Battery R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 12, 1892.)
    
    1. Railroads—New York city—Ordinance requiring road to run CARS ALL NIGHT—EVIDENCE AS TO ITS UNREASONABLENESS.
    By defendant’s charter it was compelled to run its cars “ as often as the convenience of passengers may require, and shall he subject to such reasonable rules and regulations in respect thereto as the common council of the city of New York may from time to time by ordinance prescribe.” Held, that while the reasonableness of an ordinance requiring it to run cars all night was a question of law for the court to decide, it was competent for defendant to give evidence of such facts as would establish, or tend to establish, that the convenience of passengers or of the public did not require the running of its cars during the hours specified.
    3. Same.
    That the evidence offered related to a period of time subsequent to the date when the ordinance went into effect is not a ground for objection.
    Appeal from judgment of the New York common pleas, general term, affirming a judgment of a justice of the fifth district court for a penalty for violation of a city ordinance.
    
      John M. Scribner, for app’lt \.D,J. Dean, for resp’t.
    
      
       Reversing 39 St. Rep., 105.
    
   Gray, J.

This was an action to recover a penalty of $100.00 for an alleged violation by the railroad company of an ordinance of the common council of the city of New York, which required the several street surface railroad companies to operate their roads “ as frequently as public convenience may require and not less than one car every twenty minutes between the hours of 12 midnight and 6 o’clock A, it. each and every day, both ways, for the transportation of passengers.” The particular violation charged in the complaint was the failure of defendant to run its cars on its. Avenue D branch every twenty minutes during the ordinance hours, on the 11th day of July, 1890. The plaintiff recovered a judgment in the fifth judicial district court in the city of New York, which was afiirmed, upon an appeal to the general term of the common pleas court for the said city. The defendant, obtained leave to take an appeal to this court and its counsel has presented an elaborate argument, in which he questions the right of the common council to pass the ordinance as to this defendant; and he insists that in the trial of the action the judge erred in the exclusion of evidence and in his decision upon the case as made.

In 1860 the legislature passed “ An act to authorize the construction of a railroad in Avenue D, East Broadway, and other streets and avenues of the city of New York.” Chapter 512, Laws of I860.' This defendant is the assignee and owner of the rights, privileges .and franchises conferred on the grantees named in the act. In its second section it was provided as follows:

“ Section 2. Said railroad shall be constructed on the most-approved plan for the construction of city railroads, and shall be run as often as the convenience of passengers may require, and shall be subject to such reasonable rules and regulations in respect thereto as the common council of the city of New York may from time to-time by ordinance prescribe. ”

In 1890 the ordinance in question was passed by the common council, and the defendant questions its power and right to pass it; upon the ground that it alters or violates the contract between the state and the defendant. The argument, however, disregards the fundamental fact that it was a part of that contract that the defendant should be subject to such rules and regulations as the common council should prescribe; and the only limitation or qualification imposed by the legislature in that respect was that they should be such as were reasonable.

Within the boundaries of the authority conferred by the legislature upon the common council, that body may make ordinances for the regulation by individuals or corporations of the conduct of their affairs or the use of their privileges where they touch or affect municipal and public interests. This fight to legislate through ordinances in the administration of municipal affairs is necessary for the protection and for the promotion of civic interests, and is conferred in the consolidation act. . That body has, of course, no general power in these respects. It may exercise only such powers as have been especially delegated to it by the legislature, and such as may be necessary to carry into effect any and all the powers vested in the municipal corporation.

When the charter, under which the defendant acquired its right to operate its railways, was granted in 1860 it was one of its conditions or provisions, and as such quite as much obligatory upon the grantees as any other part of the legislative grant, that the corporation should comply with any ordinances prescribed by the common council which constituted a reasonable regulation of the use of the corporate franchises. There is not here any question of an alteration of a charter or of any impairment of the contract with the state. The defendant took the charter with all the conditions expressed in it, and by .acceptance has agreed that the operation and enjoyment of the privileges and franchises conferred shall be in subordination to ■such reasonable regulations as the common council of the city shall ordain. By accepting the charter the grantees voluntarily ■consented to be bound by all of its provisions and conditions, and the corporation cannot complain of -the enforcement of any, if, by a fair reading of the language, the enforcement in the particular manner is authorized.

The question then simply is, whether this ordinance of the common council, which was adopted with respect to all the surface roads in' the city, was a reasonable regulation with respect to this defendant; for if it was not, then it is not obligatory within the meaning of the act of incorporation. The authority of the common council in prescribing regulations was qualified as to this ■defendant and, when it is sought to recover a penalty for noncompliance with a regulation, it is competent for the defendant to show that it should not apply to it, because unreasonable. As in this case the regulation affects the running of cars at stated intervals of time, its reasonableness, I think, may properly be considered in connection with the other language of the second section of the charter; which requires the corporation to “ run as often as the convenience of passengers may require.” Not that that language controls, or decides the question of reasonableness; but it bears upon and illustrates the design of the legislature in subjecting the corporation to regulations upon that subject. In the passage of the ordinance in question the presumption is in favor of its reasonableness, and the burden was upon the defendant to show the contrary. I think this is very obviously so; because the common council acts as the public, or municipal agent, and exercises an authority 'which was delegated to it by the legislature; as being the proper and a representative body to make rules and regulations to which the railroad company should be subject. In the passage of a general ordinance, affecting subjects of municipal administration, it should and will be presumed that the common council acted in the exercise of a judgment upon facts and for reasons calling for such legislative action. In Cronin v. The People, 82 N. Y., 323, it was said of the city ordinance there, that it was not “ necessary to allege or explain the reasons for its enactment, or the exigency out of which it grew. It is of the nature of legislative bodies to judge for themselves and the fact and the exercise of that judgment are to be implied from the law itself.”

The adoption of the ordinance in question does not conclude the courts in passing upon the case of its alleged violation ; because their determination is to be controlled by the question of whether it was reasonable as to the defendant, and that can only be determined from facts in evidence. The court will imply the ■existence of reasons rendering the adoption of such a public measure presumptively proper, and it is for the defendant to show The facts which should exempt it from compliance with the gen•eral regulation. Presumptively, the ordinance was required in the interests of the public, for whose convenience railroad companies hold and must operate their franchises; but the presumption is open-to rebuttal by this defendant, by giving in evidence facts which show that in its case its enforcement would be unreasonable, and that the convenience of the public, or of passengers, •did not require such a regulation. It was, therefore, competent for this defendant upon the trial to give' evidence of such facts .as would establish, or tend to- establish, that the convenience of passengers or of the public did not require the running of its cars •during the ordinance hours specified. Such facts were plainly relevant to the issue, and bore upon the question the reasonableness of the ordinance in the defendant’s case. Undoubtedly the reasonableness of the ordinance was a question of "law for the court to decide upon a consideration of all the facts and circumstances of the case. It is the province of courts to construe the •acts of legislative bodies, and within that jurisdiction, in a proper •case, to apply and to enforce their provisions. When the law is positive and plain in its terms and requirements, and if it does not conflict with any constitutional rights or immunities, then that strict compliance must be enforced which a fair reading demands, •and construction may have little or no work to perform.

But if limitations are affixed to the law, which control in its :ap"plication to subjects, it is for the court to decide whether, under the circumstances as disclosed, the conditions for its application are met by the case. Whether this ordinance should .apply to the defendant would depend upon whether the defendant has succeeded in proving that it was- an unreasonable regulation in its particular case. If it could prove that, when obeying the ordinance, upon a fair trial of the regulation, that few or no "passengers were carried, the judge might, and possibly should, find that the regulation was an unreasonable one, and therefore ■should not be enforced. With the evidence upon the subject before him, it would be for the judge to decide upon the question •of the resonableness of enforcing such an ordinance.

That the evidence offered' related to a period of time subsequent to the date when the ordinance went into effect, is not a ground for objection. Obviously, until after the defendant did commence to operate this branch of its road in obedience to the •ordinance, it would be difficult to show that passengers did not use defendant’s road during the ordinance hours and that public «convenience did not require the running of cars all night. Nor is the question controlled by considerations of the expense to the -defendant. It received its franchises and privileges for the public •convenience and to be operated as the public interests should require. No provision or condition of the law of its being qualified its obligation to use its franchises, by permitting the operation of the railroad to be controlled solely by questions of profits. In the case of such quasi public corporations, their primary duty and a cardinal obligation which arises from the grant of public rights and privileges, require of them that they should operate their franchises in a reasonable subservience to the public convenience. In the present case it would not be a sufficient answer to the rule to say that the operation of cars all night was unprofitable'. The objection should be upon the ground that the convenience of passengers does not require it " ■

We think that there was no force in the objection, and no basis for it in the facts, that the ordinance was unreasonable for the want of sufficient time within which to comply with its requirements ; and we do not think that it was a sufficient compliance by the defendant to operate its Avenue B line of cars. The ordinance related to all lines of railroads using the streets of the city, whether they were main lines or branches.

For the error committed in excluding evidence -offered by the defendant tó show that, with respect -to the running of its cars over the Avenue D branch, the regulation embodied in the ordinance of the common council was not a reasonable one, the judgments below should be-reversed and a new trial ordered, with costs to the appellant to abide the event

All concur.  