On motion to strike complaint.
For the plaintiff, James Benny.
For the defendant, William H. Speer.
Before Justices Parker, Black and Bodine.
The opinion of the court was delivered by
BODINE, J. The complaint of the city of Bayonne, which the defendant moves to strike, alleges that under city ordinance of September 18th, 1885, the defendant's predecessor, the Jersey City and Bergen Railroad Company, laid tracks on Avenue C from First street to the Morris canal, and was obliged to pave and repair with Belgian block between the rails of its tracks and for a space two feet wide outside thereof. Prior to August 23d, 1928, the paving along Avenue C became dangerous. The defendant refused, upon request, to repair the same and the city incurred an expense of $80,571.88 for repaving, which it seeks to recover.
The defendant's position is that its obligation is controlled solely by chapter 129 of the laws of 1927 (Pamph. L., p. 243), and that whatever its duties may have been under the ordinance, the statutory enactment has changed the same and that hence there can be no recovery. The statute, in so far as pertinent, is:
"Whenever any municipality, board or body, having authority so to do, shall pave or repave any street or highway upon which are located the tracks of any street railway company or traction company, such company shall, at the same time and at its own cost and expense, put its tracks and track structure in good operating condition under the jurisdiction and control of the board of public utility commissioners. The obligations imposed by this act shall be and are in lieu and substitution of any and all other obligations of any such company to pave, repave or repair any street, road or highway, or to pay any part of the cost thereof except as herein provided, and may be enforced in the same manner as similar obligations are or may be enforced under the laws of this state." We think the statute is controlling.
"Our constitution does not, like the constitutions of some states, confer upon municipalities the right to grant street franchises. We have been careful to keep the sovereignty
of the state unimpaired and have not parceled out the sovereign powers among minor political subdivisions. Municipalities with us act solely by virtue of legislative authority and as legislative agents.
"The powers of municipalities in the granting of franchises to street railways are to be found in the Traction act of 1893 (Comp. Stat., p. 5021), and the act of 1896 (Comp. Stat., p. 5040). They are limited to giving consent to the construction, operation and maintenance of the street railway, the location of tracks, and imposing lawful restrictions.
"* * * They nowhere expressly authorize the municipality to contract; they nowhere declare that the consent and acceptance constitute a contract. Section 32 merely declares that the consent and acceptance shall have the 'force and effect' of a contract. This language would be unnecessary if the consent and acceptance were in fact a contract, in the full sense of the word, for a contract necessarily has such force and effect. It must be because the consent and acceptance are in the nature of municipal legislation rather than of private agreement that the legislature thought it ...