
    City of Yonkers, Respondent, v. The Yonkers Railroad Company, Appellant.
    
      An ordinance of the oity of Yonkers requiring a vestibule to be built on each end of street cars is urumthorized.
    
    The common council of the city of Yonkers has no power to pass an ordinance prohibiting, under a penalty of fifty dollars, the operation of any street car in that city during the winter months “ unless -said car shall have a vestibule built upon each end thereof sufficient to afford protection from the weather to motormen, conductors and others standing upon the platforms of said car.” Such ordinance cannot he upheld as a valid exercise of the city’s police power, nor is it authorized by the provision of the city charter authorizing the common council “ To secure and promote the public health and safety; to determine public nuisances, and to prevent, restrain, remove and abate the same,” or by section 98 of the Railroad Law (Laws of 189.0, chap. 565, as amd. by Laws of 1892, chap. 676), authorizing the common council of any city to “ make such reasonable regulations and ordinances as to the rate of speed, mode of use of tracks, and removal of ice and snow, as the interests or convenience of the public may require.”
    The general provision of the charter of the city of Yonkers, authorizing its common council to do all acts necessary to carry into effect any ordinance “ which it is authorized to adopt,” and to impose a penalty for a violation thereof, does not enlarge the express legislative powers of the common council conferred by the charter.
    Appeal by the defendant, The Yonkers Railroad Company, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of June, 1899, upon the decision of • the -court rendered after a trial before the court without a jury.
    
      John F. Brennan for the appellant.
    
      James M. Hunt, for the respondent.
   Hirschberg, J. :

In this action the plaintiff has. recovered judgment for twelve penalties- of fifty dollars each by reason of the defendant’s violation of a city ordinance which prohibits the running of any street car in the city of Yonkers during the winter months, “ unless said car shall have a vestibule built upon each end thereof sufficient to afford protection from the weather to motormen, conductors and others standing upon the platforms of said car.” The appeal presents the question whether the Legislature has conferred upon the municipal government the power to pass the ordinance. No such power is expressly conferred by the charter, and apparently realizing that some- legislative authority was required, the common council, after passing the ordinance, had a bill prepared and introduced in the Senate conferring the power on them, which bill, however, failed of passage. The learned counsel for the city cites the usual general clause contained in the charter, as follows: “ The common council shall have power' to do all acts necessary for carrying into effect any resolution, ordinance or other proceeding, which it is authorized to adopt, and for that purpose to make, publish, ordain, amend and repeal ordinances,, by-laws, resolutions and regulations not contrary to any law of this state, and . to enforce observance thereof by imposing- penalties on every person or corporation violating the same, not exceeding in any one case of violation one hundred dollars, to be recovered, with costs, in a civil action- in the city court of Yonkers, or in any court of competent jurisdiction.” (Laws of 1895, chap. 635, tit. 6, § 10.) This clause adds nothing to the express legislative powers conferred by the charter, excepting to authorize the exaction of penalties for the violation of an ordinance which -the common council may have the right to pass.. It does not purport to enlarge the scope of the common council’s legislative power, and the right to pass ordinances for the purpose of enforc-. ing and carrying out the powers expressly conferred would’probably ■exist without it.. (Dillon Mun. Corp. [4th ed.] § 315.) The powers of municipal corporations are limited to the express provisions of - the ■charter and those necessarily incident to the powers granted or essential to the purposes of .the corporate existence. In case of fair and reasonable doubt the question is generally resolved by the courts against the municipality and the power denied. Lyth v. Hingston, 14 App. Div. 11, and cases cited.) If, therefore, the power exists in the common council of the city of Yonkers to pass the ordinance in question, it must be found in some act of the Legislature other than the city charter.

It is claimed that section 98 of the Railroad Law (Laws of 1890, chap. 565), as amended by chapter 676 of the Laws of 1892, confers the power. That section authorizes the common council of any city in the State to “make such reasonable regulations and ordinances as to the rate of speed, mode of use of trades, and removal of ice and snow, as the interests or convenience of the public may require.” It is a sufficient answer to this suggestion to say that the ordinance has no relation whatever to the mode of the use of the railroad tracks. The act relates to the preservation of the interests and convenience •of the public in the use of the streets and tracks as such, and the regulations, to be lawful, must be directed to matters connected with the construction and operation of the cars which in some manner involve and affect the streets and tracks and their use. This the vestibules would not do, directly or indirectly.

The learned counsel for the city further invokes the provision of the charter which confers power on the common council “ To secure and promote the public health and safety; to determine public nuisances, and to prevent, restrain, remove and abate the same.” (Laws of 1895, chap. 635, tit. 6, § 6, subd. 35.) This suggestion deserves no serious consideration. So far as any evidence appears in the case it preponderates in the direction indicating that the vestibules would be more of a menace than a protection to health and safety. The ordinance, however, was not passed in the exercise •of the power conferred by the section quoted, nor does its subject-matter relate even remotely to the abuses aimed at. Neither can it ,be upheld as a valid exercise of the police power. However reasonable it may be in itself, it is to be condemned as an exercise of a power not inherent to municipal existence, an interference with the affairs of the defendant which the Legislature has failed and apparently refused to authorize, and the assertion of a right on the part of the plaintiff which'it did not, so far as appears, reserve to itself as a condition of the consent to the use of its streets by the defendant.

The judgment should be reversed and the complaint dismissed, with costs.

All concurred.

Judgment reversed, with costs, and complaint dismissed.  