
    The Mayor, etc., of New York, Resp’ts, v. The Dry Dock East Broadway and Battery R. R. Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 22, 1891.)
    
    1. Railroads—In streets—New York city—Ordinance requiring road TO RUN CARS ALL NIGHT—WHEN UNREASONABLE.
    While the reasonableness of an ordinance requiring a street railroad to run cars as often as the convenience of passengers may require, is open to inquiry in the courts, the burden of showing it to be so is on the party making a claim that it is unreasonable. ■
    2. Same.
    Where the route traveled by defendant’s cars was through a dense,/ populated portion of New York city, connecting distant parts of the city with the newspaper district where a multitude of persons are employed after midnight, and connecting the Brooklyn bridge with the Twenty-third street ferry on the east side, and with a number of other horse car routes,' it was entirely within the discretion of the common council to make provision for possible future public needs as to horse car service, and an ordinance requiring cars to run every twenty minutes between midnight and six a. m., was not unreasonable.
    Appeal by the defendant from a judgment of the justice of the fifth district court in the city of New York, in favor of the plaintiff, for $114.13 damages, with costs.
    
      Louis Steckler, for resp’ts; John M. Scribner, for app’lt.
   Daly, Ch. J.

—The action was brought upon an ordinance of the common council of the city of New York, requiring the city surface railroad companies to run cars both' ways every twenty minutes between midnight and six o’clock A. M. each dayj and imposing a penalty of $100, for each neglect and refusal to comply with the ordinance.

The complaint alleged a failure on the part of the defendant to run its cars, as required by the ordinance, on East Broadway from Scannell to Catherine streets, on July 11, 1890.

The defense was a general denial, and an averment that the ordinance in question was unreasonable, was never lawfully passed, that the common council had no authority to adopt it, and that the defendant has complied with its charter in relation to the operation of its railroad and the running of cars thereon.

The violation of the ordinance by this company was proved, -it being shown that on a part of its route on East Broadway, cars were not run on the night in question, as required by the ordinance.

The company operates three branches of road, called respectively the Avenue B line, the Avenue D line, and the Cortland street line. The cars of the Avenue B and Avenue D lines run upon the same track through a part of East Broadway, but the cars of the Avenue D line run only upon the track between Clinton and Columbia streets, and it was upon this part of the road that the defendant neglected to run the cars on the Avenue D line, as well as running the Cortland street line. On the Avenue B line only was' there a compliance with the ordinance on the date in question.

It was shown by defendant that the company subsequently, and within twenty days after the ordinance went into effect, commenced and continued to run the Avenue D line as required by the ordinance and the defendant claims that the reason why the cars of that line were not run before was that it was practically impossible to do so. The ordinance in question was passed May 20, ,.890, and approved by the mayor June 3, 1890, but that day its operation was suspended until July 8th by resolution of the common council. The company claimed that it could not procure the necessary horses and break them in for the work within the period from June 3d to July 8th, and that the ordinance was unreasonable, because compliance with it was impossible at the time of the alleged violation.

It appears, however, that within that period the defendant was able to make the necessary preparations to run its cars on the Avenue B line as required by the ordinance, and that it only commenced to buy the extra horses that it needed for the other routes on July 1st. As compliance with the ordinance on such other routes was actually commenced twenty-eight days thereafter, it conclusively appears that there was ample time, if diligence had been used, to complete the necessary preparation between June 3d, when the ordinance was approved, and July 8th, when it became operative.

The only other ground upon which it is claimed that the ordinance is unreasonable is that the running of the ears upon its route between the hours in question is not required for public convenience, and the reversal of the judgment for the penalty is asked for error in the exclusion of evidence offered by the defendant to show that the cars were running empty because there were no passengers between those hours. There is no contention that if the public convenience required the running of these cars there would be anything unreasonable in the ordinance.

The charter of the defendant company provides 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.” Laws 1860, chap. 512.

The defendant is entirely correct in claiming that the reasonableness of the ordinance is open to inquiry in the courts. The legislature has imposed a limitation upon the authority of the common council, to wit: that the rules and regulations prescribed in its ordinance shall be “ reasonable,” and the power exists in the law to restrain any exercise of that authority beyond the limit which the law has fixed. The courts undoubtedly have the power to determine whether the law has been transgressed. Chicago, etc., R. Co. v. Minnesota, 134 U. S., 418 ; Stone v. Farmer's L & T. Co., 116 id., 331.

But if the reasonableness of such an ordinance is challenged, the burden is upon the party making such claim to establish it. In considering whether a regulation in favor of the public convenience and comfort is reasonable, the presumption is in favor of its reasonableness. The judicial power to declare it void can only be exerted when from the inherent character of the ordinance, or from evidence taken showing its operation, it is demonstrated tobe unreasonable. State (Trenton Horse R. Co.) Prosecutor v. Inhabitants of Trenton, 43 Alb. L. J., 188.

In this case the contention is that the ordinance is unreasonable, not because it imposes additional burdens by way of expenses upon the company, but because such expense is unnecessary, the convenience of the public not requiring it. But what proof was offered by the company to show that the ordinance was not required for the public convenience? The assistant superintendent of the road was asked whether, after his twenty years eXperience'ih"connection with'thie road, there is public necessity, or has- ever"been:any-public demand for the running of cars on the road between midnight-and five o’clock in the morning more frequently- than has-been done; aléo, whether prior to the'Stli day oi July, 1890, there" was any'complaint ever made to-tile company, on the part of" any members of " the-public, ttiat' the cars were run less frequently on the "routes'of its various-railroads than the'public convenience required.-

It is not competent to attempt to prove -the unreasonableness of'a'-public ordinance by the opinion or conclusion of "a witness; nor to prove the unreasonableness of- this ordinance by showing that the' company knew of no demands nor complaints which justified-its adoption. As the. regulation of the matter was Ifeft by law'to the common council" and not to the company, it was presumed that" complaints and demands would’be-addressed tb the former and'not t’o-the latter; ■ and' the- offer of the evidence in question ignored’ the fact that it was- the facts before the common council,1 at and before the passage- of the ordinance, which were'proper to be considered in determining' tide reasonableness of their ordinance.

The main struggle at the trial' was1 to get- in proof that since the cars commenced to-run on July 28th, at certain- periods, between-midnight and'six o’clock A. 2vr., there1 were- no1 passengers, and'-that1 the cars-ran empty. But this was an attempt to show a state of things; after the passage of the ordinance and'the-experience of the company with the ordinance,.between July 28th and the time of the trial, October 3d. There was no-attempt to show that the common council did not have, at the time of the passage of the' ordinance, facts' before it which justified the- adoption of the regulation in- question: The ordinance itself proves the existence of an exigency which required if.

“ Neitherin the ordinance itself nor in the indictment' founded upon it, is it necessary to- allege or explain1 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 is to be implied- from the law itself.” Cronin v. The People, 82 N. Y., 323.

The facts which were patent to the.common council at' the time of the passage of- this ordinance, and of which- we may- take judicial1 notice, are; that’ the route traveled by the defendant’s cars is through a densely populated portion of the city, where a vast number of families reside, whose- pleasure or convenience or necessities'might; at sometime, or from time to time, require the means-of transportation by these- cars between midnight and six o’clock A. M.

That the cars connect distant parts of the city with the newspaper' district where a" multitude of persons are employed after midnight; and that the cars connect with the bridge to Brooklyn, and the Twenty-third street ferry across the Bast river, and with a number of other horse car routes; so that even if there were nc immediate public clamor at the moment for the running of cars after midnight, it was entirely within the disr cretion of the common council to make provision for possible future public needs in th,at direction.

The ordinance was not shown to be unreasonable, and should have been complied with, and the judgment for the penalty is affirmed.

Daly, Ch. J., Bischoff and Pryor, JJ., concur.  