People v. Shellenberg

Scott, J. : This is an appeal from an order of one of the judges of the General Sessions affirming a judgment of a city magistrate convicting the appellant of the violation of section 34 of the park ordi [80] nances. The power of, the park board to adopt ordinances is conferred by section 610 of the revised charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chap. 628), by which it is authorized “ to establish and enforce rules and regulations for the government and protection of the public parks and-of all property in charge of said board of under its control.” Upon filing such a rule or regulation with the city clerk, it becomes “ a general ordinance of the city of New York,” a violation of which is a misdemeanor. The ordinance which the appellant has been convicted of violating was duly adopted and filed in January, 1909, aiid reads as follows : “ Whereas, any vehicle measuring over ten feet in height from the tread of the wheel to the highest part of the vehicle is damaging to the trees along park roads and parkways, Therefore, The Park Board- does hereby establish the following rule and regulation for the protection -of the trees- along park roads and parkways of the city, 'which shall be known as section 34 of the G eneral Park Ordinances, Buies and Regulations, Chapter 16 of the Code of Ordinances of the City of New York, to take effect February 1st, 1909: “No vehicle of any kind or description measuring over ten feet from the tread Of the wheel to the highest portion of the vehicle, whether propelled by muscular or motive power, shall be allowed to run along any driveway of any park or parkway under the jurisdiction of the Department of Parks.” The offense of which appellant was convicted consisted of driving on Riverside drive a double-decked motor omnibus of the Fifth Avenue Coach Company which exceeded the prescribed height by more than a foot. The Fifth Avenue. Coach Company claims the right to operate its stages upon Riverside drive under section 23 of the Transportation Corporations Law (Laws of 1890, chap. 566, added by Laws of 1900, chap. 657) which authorized an existing stage line (as the company was) to extend its existing routes at pleasure upon receiving approval of the State Board of Railroad Commissioners, without further or other authority, proceeding or consent required under any act, general, public, private or local. It is not necessary now to consider the validity of an extension claimed under this act, because, for the purposes of this appeal, it may be assumed that the route was validly [81] and lawfully extended so as to. include Eiversi.de drive. But .if it be assumed that the company has a right to operate its stages on Biverside drive, it does not follow that they may so operate them as to violate a valid city ordinance; and the ordinance in question here, if otherwise valid, cannot be impeached merely because it interferes with the use of the particular kind of stage or omnibus which the company has chosen to operate. The franchise at the utmost isf only one to operate stages, and not one to operate any particular pattern of stage. In electing to extend its route and accepting the franchise or consent so to do, the company must be deemed to have acquired its right to operate subject' to the paramount right of the municipality to reasonably regulate traffic; and if the company chose to select a route which included a public park, it thereby subjected itself to the reasonable regulations of the department having jurisdiction over the parks. The only question in the case, therefore, is whether or not the ordinance is a reasonable one and within the power of the park department. The statutory powers conferred upon the department of parks are very broad and comprehensive. By section 612 of the revised charter (as aind. by Laws of 1908, chap. 135) it is provided: “ It shall be the duty of each commissioner, subject to such general rules and regulations and in conformity therewith, to maintain the beauty and utility of all such parks . * * * as are situated within his jurisdiction, and to institute and execute all measures for the improvement thereof for ornamental purposes and for the beneficial uses of the people of the city.” By section 616 (as amended by said act of 1908) it is further provided that “ The park board shall, in addition to .the powers, rights and duties expressly conferred or imposed upon it by this act, * * * possess and exercise all the powers, rights and duties and shall be subject to all the obligations heretofore vested in, conferred upon' or required of the corporation known as the mayor, aldermen and commonalty of the city of blew York, or the department of parks in said city, or the commissioners of parks, or in any other board, body or officer therein or thereof, * * * so far as such powers, rights, duties and obligations concerned or affected the control, care, management, government, extension, maintenance or administrative ■'"urisdiction [82] of the parks "x" * * situated or lying within the city of New York * * *. Nothing contained in this section shall he con- - strued to limit the administrative control of the several commis- ■ sioners over the parks *' "x" • * situated or lying within their respective jurisdiction.” Among the well-recognized powers of a park commissioner is the regulation of traffic within, the parks, and in this State it has been held that such power includes the right to wholly exclude from the parks vehicles deemed to be unsuited or undesirable, as bicycles and tricycles were once considered. (Matter of Wright, 63 How. Pr. 345; affd., 29 Hun, 357.) There are several classes of public places in the city of New York which have been placed under the jurisdiction of the department of parks. There are the parks proper; certain ordinary city streets which abut upon or are adjacent to parks; and parkways which partake of the characteristics of both parks and highways. As to the parks proper, the authority of the park department is practically absolute so long as. their use is confined do park purposes. The department may lay out roads and pathways at pleasure, some for the exclusive use of pedestrians, some for the exclusive use of horsemen, and some for the exclusive use of vehicles of various kinds, and may exclude objectionable vehicles altogether. As to streets like Fifth avenue, Central Park West, Seventy-second street and the like, the park department is given certain limited powers of care and maintenance the establishment of curb and stoop lines, etc.,' but although such streets may be in some acts declared to be parts of the .public parks, this undoubtedly means that they are such for the purposes of the powers, over them committed to the park department, but would not, in my opinion, authorize the department to withdraw them from public use as city streets. The parkways lie between these two. They are accurately defined in' the Century Dictionary as broad thoroughfares, planted with trees,. and intended for recreation as well as for common street traffic.” ' Riverside drive is officially and legally a park, although it corresponds in fact more nearly with the above-quoted definition of a parkway. It was laid- out by the park department, under chapter 697 of the.Laws of 1867, which gave that department power today out “ streets, avenues, roads, public squares or places” between .Fifty-ninth and One Hundred and [83] Fifty-fifth streets, west of Eighth avenue-. How it was denominated on the map filed under that act does not appear; but by section 2 of chapter 447 of the Laws of 1876, it was declared to be one of the parks and public places of the city of Hew York and placed under the control of the park department, where it has ever since remained. It cannot, I think, be doubted that it is within the jurisdiction and duty of the park department to reasonably regulate traffic on Riverside drive, and especially to protect the trees along the drive. That vehicles of an excessive height will probably injure the lower branches of the trees that overshadow the drive and thus impair their beauty and usefulness is self-evident. The question is, what height shall be deemed excessive, or, in other words, what limitation upon the height of vehicles should be considered reasonable. For - ■it is apparent that there is a dividing line somewhere between reason and unreason. The law has 'placed the determination of that question in the first instance in the discretion of the park commissioners, and we may not lightly convict them of having .used their discretion unreasonably. They are entitled to the presumption that they have acted deliberately and reasonably. The case furnishes no data upon which we can say that they have not done so. There is, therefore, no ground upon which we can say that the ordinance under which the appellant was convicted is invalid. The order appealed from is affirmed. Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred. Order affirmed.