Mayor of Jersey City v. Jersey City & Bergen Railroad

The Chancellor.

The allegation in the bill that the defendant was so laying the additional track in Pavonia avenue, that the two tracks would not be equi-distani from the centre of the street, was made by misapprehension, and is disposed of by the answer. The only question which remains is, whether the defendant has a right to lay this track without the consent of the complainant. The complainant, so far as its right to regulate the streets is concerned, is merely a municipal corporation, exer *366 cising such powers as the legislature have delegated to it. It is well settled, that the grant of such powers is not a contract, but an exercise of legislative power, and that the legislature may at any time take away, resume, or limit such powers, in the same manner as those conferred upon -courts, magistrates, sheriffs, and other officers, the machinery by which government is carried on. The only question then is,, whether, in this case, the legislature have taken away or limited the powers granted to the complainant. By the charter of Jersey Oity, the complainant has the supervision of all public streets in the city, and the right to regulate the grading and paving of the same. And by the original charter of the defendant, the right granted to construct a. railroad from Bergen Point to the Newark turnpike, with bi-anches to the ferries in Hudson county, was subject to the provision, that in constructing these in Jersey City, the consent of the common council of Jersey City should first be obtained. If this track was being laid under that charter, the complainant is right in the position that the consent of the common council must first be had.

But the act of February 13th, 1867, gave the defendant express power to construct several tracks specified in it, without any reference to the consent of the complainant. No such reference can be implied, because it was required in a former grant, by a condition expressly annexed, and omitted in this. The defendant had before this act, the power to lay a second track in Pavonia avenue, upon obtaining the-consent of the complainant. This act gave it the unconditional power of laying it, and if it was still subject to such consent, it would amount to nothing; it -would grant no power not had before. But the fourth section of this act expressly provides that it shall not be lawful for the municipal authorities to interfere, with, hinder, or obstruct the defendant in constructing its roads. This, if it was allowed,, expressly takes away the right of the complainant to withhold its consent, and is therefore a repeal of so much of the original charter as requires it. The rule of construction is.. *367 that a provision in a statute inconsistent with any provision in a former statute, repeals the first statute pro tanto. And if such were not the rule, this statute, in its last section, repeals all acts and parts of acts inconsistent with any of its provisions. The absolute grant of the right to lay a new track is inconsistent with the right of the complainant, by its charter to prevent it, and inconsistent with the provision in the original charter of the defendant, that the consent of the complainant must be obtained; and therefore these provisions are expressly repealed.

The injunction must be denied.