The questions argued in this case arise upon a demurrer to the answer of the defendants. The plaintiffs claim to recover a penalty of fifty dollars against the defendants for a violation of the corporation ordinance for licensing rail road cars, which prohibited 'the running of cars in the city without such license, under such penalty. The answer admits all the facts set up in the complaint, and by way of defense sets up an agreement made between the plaintiffs and Denton Pearsall and others granting them permission to lay the rail road track through the second avenue, in pursuance of resolutions of the common council, and claiming that they have full power to run their cars upon their said rail road without paying any license fee. To this answer the plaintiffs demur.
There is nothing in the resolutions of the cómmon council making the grant, nor in the lease executed in pursuance of *51such resolutions, which specially exempts the defendants from the payment of fees for such licenses, or from the necessity of taking out licenses if required so to do hy law. The question, therefore, must he decided upon the broad ground that the corporation have no . power to require a license to be taken out in regard to the using of rail road cars. Or that the grant to the parties who originally received it, by not reserving the right to impose such license when required by law, relieved the defendants from any obligation to take out such license even if the common council had authority to require it in other cases.
Upon the first question I think there can be no doubt. It is not to be expected that, in the ancient charters of the city, special references should be made as to modes of conveyances not then in existence or even thought of, but in the Montgomery charter ample provision is made for the passage of all laws, ordinances and statutes which to them shall seem good, useful or necessary for the good rule of the citizens, inhabitants and residents of the said city, and for the further public good, common profit, trade and better government and rule of said city. (Sec. 14 of the Montgomery Charter.)
The same section also authorized the common council to ordain such penalties as they should think necessary against persons who should offend against such law. The powers granted by this charter in regard to passing laws and ordinances for the good government of the city, have never been taken away or limited b/legislative enactments. On the contrary, laws have frequently been passed confirmatory of such powers, or extending them where doubt existed as to the extent of them; and although many of those laws were unnecessary, I know of none in which any attempt was made to take away the powers thus conferred, except so far as the inspection laws on the sale of merchandise, &c. were abrogated by the constitution.
The right to require licenses for public carriages used for • the conveyance of passengers, is necessarily embraced in the *52powers above referred to. And while the exercise of this power in regard to stages, omnibusses, carriages and other modes heretofore in use is not objected to, I see no good reason why the same should not be' extended to rail road cars, simply because they are drawn on rails laid in the streets. The question is as to the power of the common council to require a license, irrespective of the charg'e, as a mere police regulation. The fee to be charged for it is a mere collateral matter, not affecting the right to require a license.
The other question is, whether the grant of the .franchise of laying rails through the second avenue, to the assignors of the defendants, prevents the plaintiffs from passing an ordinance requiring the defendants to take out such license.
I suppose it to be well settled that a corporation in dealing with its property or in making contracts in regard thereto, as well as in making grants of its property or franchises, is only to be regarded as an individual; that all such grants and contracts, when made by them, are to be made subject to the general legislation of the city and of the state, and •that it is not necessary in such grants,to reserve any right to legislate on subjects connected therewith.
The conveyance of a lot of land by the city to an individual with all the covenants of warranty and quiet enjoyment, does not relieve the owner from paying the taxes which are annually imposed upon it. The conveyance of a house and lot would not prevent the common council from increasing the tax for water to be imposed thereon.
The grant of a ferry franchise would not prevent the common council from any general legislation in regard to ferries which by law is within their powers, although such legislation might operate injuriously to the grantees. The right of the common council thus to legislate, even to the injury of grantees holding under them, has been the subject of adjudication. In the case of The Brick Presb. Church v. The Mayor &c. of New York, (5 Cowen, 538,) it was held that a grant of land by the corporation for the purpose of a cem*53etery, with a covenant of quiet enjoyment, did not prevent the passage of an ordinance prohibiting interments in that part of the city where the land was situated. Chief Justice Savage says: “In ascertaining their rights and liabilities as' a corporation or as an individual, we must not consider their legislative character. Their enactments in their legislative capacity are to have the same effect upon their individual acts as upon those of any other person.” The same rule was laid down in Coates v. The Mayor &c. (7 Cowen, 585.)
These cases, however, not only hold that the grant does not prevent the subsequent passage of a by-law at variance with it, but they go farther, and deny the power of the corporation acting in regard to their property to make any grant or covenant which would be at variance with their subsequent legislation.
In the case in 5 Cowen, at page 540, Chief Justice Savage says, referring to the corporation, “ They had no power as a party to make a contract which should control or embarrass their legislative capacity.” So in Milhau v. Sharp, (17 Barb. 435,) Mr. Justice Hams held that' a clause in a grant of a rail road giving the right to charge a particular rate of fare, Was in violation of the authority conferred upon them to regulate the rates of fare, and says: “ The members of the common council, by which this resolution was adopted, were not authorized thus to invade the legislative power of their successors.” And in N. Y. and Harlem R. R. Co. v. The Mayor &c. of New York, (1 Hilton, 585,) Hilton, J. says : “ The corporation cannot surrender (any power conferred by law) into the hands of private individuals or of a private corporation; and any attempt to do so, without such authority, would he utterly void.”
The act of 1854, confirming the grant to the defendants and other grantees under these grants by the common council, was not intended and did not operate to extend the grant beyond the terms of it. It left them still liable and subject to. *54the general legislation of the city, which' did not deprive them of the rights therein granted.
[New York General Term, February 4, 1861.The judgment appealed from should he reversed, and judgment ordered for the plaintiffs on the demurrer, with leave to the defendants to amend their answer on payment of costs.
Order affirmed, with costs.
Clerke, Ingraham and Sutherland, Justices.]