Yellow Taxicab Co. v. Gaynor

Ingraham, P. J. (concurring): I concur in the affirmance of this order upon the ground that the ordinance in question is a valid regulation of the use of the streets in the city of New York and within the power conferred upon the board of aldermen by the charter of that city. By section 42 of the charter of the city of New York (Laws of 1901, chap. 466) it is provided that all the powers and duties which on December 31,1897, were conferred or charged upon the common council, or the mayor, aldermen and commonalty of the city of New York, or the board of aldermen thereof, or the board of aldermen or common council of the various cities that united in the consolidation, shall be exercised and performed by the board of aldermen of the city of New York. Section 44* provides that no enumeration of powers in this act shall be held to limit the legislative power of the board of aider-men of the city of New York except as in the charter specially provided, and that the board of aldermen of the city of New York shall exercise and perform said powers and duties by proper ordinances, rules, regulations and by-laws. Section 50* provides that subject to the Constitution [894] and laws of the State the board of aldermen shall have power to regulate the use of streets and sidewalks by foot passengers, animals or vehicles; to regulate the speed at which vehicles shall be driven or ridden and at which vehicles shall be propelled in the streets; to prevent encroachments upon and obstructions to the streets, and to authorize and require their removal by the proper officers; and whenever the word “ vehicles ” is used it shall be deemed to include wagons, trucks, carts, cabs, carriages, stages, omnibuses, motors, automobiles, locomobiles, locomotives, bicycles, tricycles, sleighs or other conveyances for persons or property. By section 51* it is provided that subject to the Constitution and laws of the State the board of aldermen of the city of New York shall have power to provide for the licensing and otherwise regulating the business of public hackmen and cabmen; to regulate the rates of fare to be taken by owners or drivers of hackney coaches, carriages, motors, automobiles or other vehicles, and to compel the owners thereof to pay annual license fees. Under this power thus granted I think the Legislature intended to vest the board of aldermen of the city of New York with entire power to regulate the use of the streets of the city of New York, to regulate the nature of the vehicles that use the streets, and prescribe the conditions upon which they shall be allowed within the city limits, and with the unrestricted power to regulate the rates of fare to be charged by public conveyances using the streets. If any particular kind of vehicle in use in the city cannot be profitably operated at the rate of fare prescribed in the exercise of this power, the ordinance prescribing the rate of fare to be charged is not, I think, for that reason to be declared unreasonable, or a violation of any provision of the Constitution or laws of the State. No one is bound to provide or operate any particular kind of a vehicle or motor vehicle, and if the rate of fare fixed by the board of aldermen is not sufficient to allow motor vehicles to be operated in the streets of the city of New York profitably to the owners, then the owners can cease from such operation. Nor does the fact that these motor vehicles had been operating in the streets under a license and at rates of fare that were profitable prevent the board of aldermen, in the exercise of the power vested in it by the Legislature, from reducing the rates of fare. If vehicles were devised of such size and weight, or propelled by power in such a way as to destroy the streets or prevent the use of the streets by others, it seems to me the board of aldermen would be justified in prohibiting the use of vehicles of that class. The exercise of that power cannot, I think, depend upon what the court might think would be a reasonable regulation. If the Legislature had the power to prohibit the use of any specified class of vehicles in the public streets, it had the power to delegate to the legislative body of the city the right to exercise such power. The Court of Appeals has lately determined that the Legislature has that power. In People v. Rosenheimer (209 N. Y. 115) it was held that the Legislature might prohibit altogether the use of motor vehicles upon the highways or streets of the State. But the right to use the highway by any per [895] son must be exercised in a mode consistent with the equal rights of others to use the highway, and that the motor vehicle, on account of its size and weight, of its great power, and of the great speed which it is capable of attaining, creates, unless managed by careful and competent operators, a most serious danger, both to other travelers on the highway and to the occupants of the vehicles themselves, is too clearly a matter of common knowledge to justify discussion. The fatalities caused by them are so numerous as to permit the Legislature, if it deemed it wise, to wholly forbid their use. The whole of this argument rests on the proposition that in operating a motor vehicle the operator exercises a privilege which might be denied him, and not a right, and that in a case of a privilege the Legislature may prescribe on what conditions it shall be exercised. I am willing to place the validity of this ordinance squarely upon the ground that the Legislature having vested in the legislative department of the city of New York the power to regulate the streets in the city of New York and the use of motors and other vehicles using its streets, the legislative department of the city had the power to prohibit the use of any particular kind of motors or vehicles that the welfare of the city, and its inhabitants, and the public generally in the use of the streets required. Thus, having the power to regulate, it had the power to prohibit, and the lesser power of imposing the terms upon which motors and vehicles should use the streets is included in the greater power to regulate the use of motors and vehicles using the streets. For these reasons, I think, the ordinance is not beyond the power of the board of aldermen of the city of New York, but isa valid exercise of power. I am, therefore, in favor of affirming this order. Hotchkiss, J., concurred. Footnotes [*] Amd. by Laws of 1905, chap. 629.— [Rep. [*] Amd. by Laws of 1910, chap. 262.—[Rep.