The charter of Long Island City (chap. 461 of the Laws of 1871, tit. 3, chap. 1, § 14) contained the following provisions: "The common council shall have power to make, continue, modify and repeal such ordinances, regulations and resolutions as may be necessary to carry into effect any and all of the powers now vested in, or by this act conferred upon the corporation, and shall have power to enforce obedience thereto by ordaining penalties for each and every violation thereof, in such sums as it may deem expedient, not exceeding one hundred dollars. And shall have power to make such ordinances and with such penalties in the matters and for the purposes following:
* * * * * * "5. To regulate the use of streets, highways, roads, and public places by foot-passengers, vehicles, railways." Subsequently in the charter is also found the following provision: "Nothing in this act shall be construed as granting to the mayor or common council of said city, or either of them, or to any officer of said city, power to prohibit or control in any manner the use of steam power on any railroad from any part of Long Island to the East river, and such railroad companies shall have unobstructed right to run to the East river with their locomotives and cars, but shall furnish suitable guards or signals at the street crossings, for the proper protection of the public."
On the 1st day of September, 1874, the common council of the city, claiming to act under the provisions first above given, passed the following ordinance: "§ 1. Any railroad company or corporation running cars drawn by steam power within the limits of Long Island City shall station a flagman at all points where the tracks of such company or corporation cross a public highway, street, avenue, road or public place *Page 564 within said city, on an even grade with such public highway, street, avenue, road or public place, whose duty it shall be to warn all persons passing over or using such public highway, street, avenue, road or public place, of the approach of trains.
"§ 2. Any railroad company or corporation violating this ordinance, or refusing or neglecting to carry out its provisions, shall be liable to a penalty of fifty dollars for each and every day it shall be violated, or they shall refuse or neglect to carry out its provisions as aforesaid."
The defendant's road was constructed before the enactment of plaintiff's charter, and was in operation upon Long Island to the East river. It passed through the city and crossed one of the streets thereof upon an even grade with the street. The defendant did not station a flagman at the crossing, and this action is brought to recover one penalty imposed by the ordinance.
We think the plaintiff was properly defeated in the courts below. The general power conferred upon the city by the first provision is limited and controled by the last provision. By the last, such railroad companies as the defendant were taken out of the control of the city and secured the unobstructed right to run their cars to the East river. It is true that they were to furnish "suitable guards or signals" at street crossings. They could do either; and what the guards or signals should be, they could determine, provided they were suitable for the purpose intended. If they omitted the duty thus imposed, they could be compelled by the courts to perform it, or they could probably be indicated for the omission. But the common council had no power to regulate this duty by ordinance.
Here there was no proof nor, so far as I can discover, any claim that the defendant had not furnished suitable "guards or signals" at the crossing; and if it had, the plaintiff certainly had no right to impose upon it the additional burden of keeping a flagman there.
Taking the two provisions together, it is clear that it was intended by the Legislature to confer upon the common *Page 565 council the power to regulate the use of the streets only by street railways and other railways not running to the East river. It was doubtless deemed prudent to commit to the common council some control over such railways. But railroads upon which steam power was used, and which, by running to the East river, were the main arteries of commerce and travel, were not subjected to such control. The trains upon such roads are required to be run without interruption, with great regularity and speed. Such roads are subject to the general railroad laws of the State as to signboards and signals at street crossings, besides the particular provisions contained in this charter as to such crossings. There seems to be no necessity to subject such roads to municipal control, and it is not the general policy of the State to do so.
The judgment should be affirmed, with costs.
All concur, CHURCH, Ch. J., concurring in result.
Judgment affirmed.