
    The City of New York, Respondent, v. New York City Railway Company, Appellant. Car License Penalty. (Action No. 1.)
    First Department,
    May 6, 1910.
    Municipal corporations — common council — penal ordinances for breach of contract — railroad — failure to procure license — estoppel.
    The common council of a city has no authority under its general police power to impose a license fee upon street cars operated by a railroad having a franchise to use the streets.
    Where the original legislative grant of a street railway franchise provided that each passenger car should be annually licensed by the mayor at a fee to be determined by the common council, that body has no authority either underits general power to enact ordinances regulating the use of the streets and affecting the public welfare or under the police'power to pass an ordinance imposing a penalty for failure to affix the license to the car or for a failure to obtain and affix it.
    The legislative grant of the franchise is in the nature of a contract between the railroad company and the State whereby the former obtained the right to operate its cars along the streets upon payment of an annual charge called a license fee for each car, and failure to procure the license is a mere breach of private contract, not an unlawful act.
    The common council cannot enforce mere contract obligations by enacting penal ordinances for a breach thereof.
    Acceptance of the ordinances by the railroad company does not act as an estoppel, for in the grant the only reservation, aside from that prescribing license fees, was with respect to the enactment of ordinances by the municipality under its police powers!
    Appeal by the defendant, The New York City Eailway Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of June, 1909, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered On the 18th day of November, 1907, for the sum of $272.
    
      Joseph P. Cotton, Jr. [Robert H. Ffeilson with him on the brief],, for the appellant.
    
      Theodore Connoly \Terenoe Farley and Frank B. Pierce with him on the brief], for the respondent.
   Laughlin, J.:

This action is brought to recover penalties for operating five cars over the line of railroad of the Sixth Avenue Company below One Hundred and Twenty-fifth street in the city of New York on the 21st day of May, 1907, without having “ affixed to some conspicuous place in ” each of said cars a license for the car as required by the provisions of sections 56 and 57 of article 1 of chapter 4 of part 2 of the Code of Ordinances of the city of New York, in force on the 21st day of May, 1907. The penalty was imposed by section 58 of said chapter of ordinances. The question presented for decision is whether the ordinance, in so far as it imposes a penalty, is valid, and enforcible. It will facilitate the discussion of the legal question to have in mind the exact provisions of the ordinances. They are as follows:

“ Sec. 56. Each and every passenger railroad car running in the Borough of Manhattan shall pay into the City Treasury the sum of $50 annually for a license; a certificate' of such payment to be procured from the Mayor, except the one-horse passenger cars, and the cars of the Ninth Avenue Railroad Company, which shall each pay the sum of $25 annually for said license as aforesaid, and except such as pay the sum of 3 per cent, or over on the gross receipts, or where the franchise has been sold at public sale to the highest bidder.

“ Sec. 57. Each certificate of payment of license shall be affixed to some conspicuous place in the car, that it may be inspected by the proper officer, to be designated and appointed by the Mayor.

“Sec. 58. For every passenger car run upon any of the railroads without the proper certificate of license, the proprietor or proprietors thereof shall be subject to a penalty of $50 for each day every such car shall be so run, to be recovered by the Corporation Counsel, as in the case of other penalties, and for the benefit of the City Treasury.” (See Ord., Res., etc., Bd. Aldermen, 1906, No. 632, vol. 9, pp. 344, 585, 586, §§ 56-58-; Cosby’s Code Ord. [Anno. 1910], 283, 284, §§ 56-58.)

The penalty appears to have been imposed for a failure to affix the license to the car, and that is the theory .on which the learned counsel for the,city attempts to sustain the ordinance; but whether it be construed as imposing the penalty merely for a failure to so affix the license, or for a failure to obtain and affix the license, is not very material. Nothing is licensed by or under the ordinance, nor is the use of the cars in any manner regulated in the interests of the public. The license or permission to use the streets was given by the grant. The license fee is neither a fine nor a penalty. It is merely a charge for this particular use of the streets. It is not contended that it is competent for the common council of the city, under its general police power, to impose a license fee upon passenger cars operated over or along the public streets, and it was long since held that such authority does not exist with respect to a railroad having a franchise to use the streets. (Mayor, etc., v. Second Avenue R. R. Co., 32 N. Y. 261. See, also, Mayor, etc., v. Third Avenue R. R. Co., 33 id. 42.) By virtue of the original grant of this street railway franchise, as ratified by the Legislature, to which the defendant succeeded,'it was-(provided that each passenger car should be annually licensed by the mayor, and such sum should be paid for the license as the common, council should determine. The common council did thereafter, by an ordinance approved by the mayor on the 31st day of December, 1858, fix the annual license- fee for each car at the sum of fifty dollars. In an action brought by the city against this defendant to recover license fees for operating cars under the franchise in question, this court had occasion recently to consider the original grant, the act of the Legislature ratifying it and the ordinance fixing the annual license fee and in the opinion then delivered the material facts with respect thereto were stated and, therefore, need not now be restated, and we held that the defendant was liable and the judgment was affirmed by the Court of Appeals on the opinion of this court. (City of New York v. New York, City R. Co., 126 App. Div. 39; affd., 193 N. Y. 679.)

The numerous cases'<>brought for the recovery of car license fees indicate that the ordinance with respect to procuring a license annually and posting the same in the cars has not been enforced, and, notwithstanding the fact that the original ordinance was enacted more than fifty years ago, our attention has been drawn to no decision and we find none authoritatively adjudicating with-respect to the right of the city to enforce compliance with the ordinance by imposing a penalty for a violation thereof. The authority of the common council to pass an ordinance fixing the license fee, where, by virtue of the grant, or of an act of the Legislature, the duty was imposed on the street railway company of paying a license ■ fee to be fixed by the common council, was sustained by Mayor, etc., v. Broadway, etc., R. R. Co. (97 N. Y. 275), and was recently sustained by City of New York v. New York City R. Co. (supra), as was also the right of the city to recover the license fee regardless of whether or not a formal license, had been contemplated by the' ordinances. It appears that an action was brought in behalf of the city to recover penalties of thé Third Avenue Railroad Company for running cars without paying the. license fee imposed by the ordinance,- but the grant to the Third Avenue Railroad Company prescribed a license fee, and it was held that the original grant, governed, and that it was not competent for the city, by ordinance or otherwise, to require the payment of a greater license fee. (Mayor, etc., v. Third Avenue R. R. Co., supra.)

This action was tried on the theory that said sections 56, 57 and 58 of article 1 of chapter 4 of part 2 of the Code of Ordinances of the city of New York, in force on the 21st day of May, 1907, were the same as the provisions of the original ordinances enacted in 1858. Appellant now claims that said section 58 is not the same as the original ordinance and it cites in its reply brief a reference to the original ordinance in the printed book of ordinances. (Yalentine’s New York City Ordinances [Revision of June 20, 1859], chap. 41, §§ 1, 2, 3.) On the trial the original ordinances of 1858 were offered in evidence, but" only section 1 thereof is printed in the record. It was stipulated in advance of the trial that either party might read in evidence upon the trial from the printed books of ordinances, but this was not done with respect to sections 2 and 3 of the original ordinances on this subject. Strictly speaking, we probably cannot take judicial notice of the ordinances even in these circumstances, but the change claimed to have been made in some revision of the ordinances was in section 3, of which said section 58 was a re-enactment or revision and now imposes a penalty of fifty dollars per day, whereas, in the original it is claimed that no period was prescribed. In the view we take of the case, however, that is not material to a decision of the appeal. It is conceded that the license fees have now all been paid, but it was proved with respect to the five cars in question that the license fees had not been paid at the time they were operated. If, as appears "to be the reasonable construction of the ordinance, the penalty was imposed for a failure to affix the license to the car so that police officers or inspectors representing- the city might discover on inspection of the car whether or not the license fee had be'en paid, then manifestly the penal provision of the ordinance could not be sustained. The city authorities could by their own records preserve evidence with respect to the payment of the license fees and readily determine therefrom whether or not a license fee had been paid for a particular car, for such cars are numbered. We are not now concerned with the question as to whether it would have been competent for the Legislature to -have so provided by statute. The question is, did the Legislatnre attempt to confer authority upon the legislative body of the municipality to impose such penalty, and if so, was it competent for it to do so? It is not claimed that there was any specific delegation of authority by the Legislature to enact ordinances on this subject, but it is contended, as we understand the argument of the learned counsel for the city, that raider the. general power to enact ordinances regulating the use of the streets and affecting the public Welfare, the common council has authority to prescribe this penalty. Of course where it is unlawful to conduct a business without a license, it is competent for the Legislature to. authorize the local legislature, or some board, body or official- representing the city, to prescribe a license fee and to prescribe a penalty- for conducting the business without a license. The confusion here has arisen from the use of the word license ” with respect to the annual charge to be paid by the railroad company for each passenger car operated in the public streets. The business of the street railway company, how ever, was neither prohibited nor licensed, by this ordinance. The company obtained its franchise by a grant in the nature of a contract, which was ratified by the Legislature prior to the enactment of the ordinance, and by that franchise it obtained the right to operate passenger cars, for hire along the public streets covered by its grant. This right, however, was conditioned upon its paying an annual charge designated as a license fee for each car, and it was left to the common council to fix and determine that charge or license fee. It may well be that after the charge or license fee was fixed,' as provided in the grant, the company had no right to operate its cars until the license fee was paid, but if so, that disability arose from the provisions of the grant, which constituted a contract between the municipality and the company. The operation of the cars without paying-the license fee may have been a violation óf the grant, but- it constituted a mere breach of private contract as distinguished from an unlawful act. There was no more danger to the public in the operation of a car before the license fee was paid than there was after it was paid. The public health and safety were not affected by the • question as to whether or not. the license fee was paid. The business was lawful and it had been duly authorized. It only remained for the railway company to perform its contract obligation to pay the city the annual charge reserved for the use of the streets, and for a breach of that obligation the city had a right to recover the license fee. It was no more competent for the common council to impose a penalty upon the railroad company for a failure to ’perform its contract obligation to pay the city the annual charge or license fee than it would be for it to impose a penalty upon a contractor for a violation of a contract between him and the municipality with .respect to ordinary contract work with respect to an obligation which he owed to the city by virtue of the terms of his contract.

The authority conferred by the Legislature to enact ordinances and to enforce the same by imposing penalties does not authorize the enforcement of mere contract obligations by the enactment of penal ordinances for a breach thereof. It is further contended in behalf of the city that the company by accepting the provisions of the ordinances is estopped from questioning their validity. It is not shown in what manner the alleged acceptance was manifested, and for aught that appears there was no formal acceptance of the penal provisions of the ordinance. But if .this had been such, acceptance would not constitute an estoppel, for in the grant the only reservation was with respect to the enactment of ordinances in the exercise of the police powers of the municipality aside from prescribing the license fees. In no view of the case, therefore, was there authority to enact the penal provision of this ordinance.

It follows that the determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs to the appellant, and the complaint should be dismissed, with costs.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Determination and judgment reversed, with costs, and complaint dismissed, with costs.  