West Jersey Traction Co. v. Camden Horse R. R. Co. 7. If a company has legislative power to build a railroad on a designated street, provided the municipal authorities consent thereto, and it commences to build such railroad without municipal consent, the municipal authorities cannot grant to another company the exclusive right to build a railroad in that street, without giving to the first company notice and an opportunity to be heard. On appeal from decrees advised by Vice-Chancellor Pitney, whose opinion is reported in West Jersey Traction Co. v. Camden Horse Railroad Co., 7 Dick. Ch. Rep. 452. Mr. Thomas E. French, Mr. Mark R. Sooy and Mr. Lindley M. Garrison, of counsel for the West Jersey Traction Company, appellants. Mr. Jonas S. Miller and Mr. Thomas E. French, of counsel with Charles W. Scott et al. Mr. Edward A. Armstrong, Mr. David J. Pancoast and Mr. Thomas N. McCarter, of counsel for the respondent. The opinion of the court was delivered by DIXON, J. On June 21st, 1893, the West Jersey Traction Company filed: a bill of complaint to restrain the Camden Horse Railroad Company from constructing a street railway in the township of Stockton, Camden county, from the bridge over Cooper's creek, which divides the township from the city of Camden, along State street to Fourth street, and along Fourth street and the River road to the line between Stockton and Pensauken townships. The traction company based its claim upon the ground that by certain proceedings stated in the bill it had become invested with an absolute and exclusive right to lay its tracks along said streets, and that the construction and operation of a railroad thereon by the Camden company would be an invasion of the complainant's right and would cause the complainant irreparable injury. West Jersey Traction Co. v. Camden Horse R. R. Co. On August 14th, 1893, the Camden Horse Railroad Company filed a bill of complaint, and on August 17th, 1893, it filed another bill of complaint, the object of which bills was to enjoin the West Jersey Traction Company, the inhabitants of the township of Stockton, in the county of Camden, and the members of the township committee of said township, from interfering with the construction of a street railroad along Fourth street, in said township, by the Camden company. After answers filed by all the defendants, these causes were heard together, and resulted in decrees dismissing the bill of the traction company, and granting to the Camden company the relief for which it prayed. The traction company appeals from the decree dismissing its bill, and also from the decree rendered on the bill filed August 17th, in which it was a defendant; the township corporation and the members of the township committee appeal from the decrees rendered on the bills filed August 14th and August 17th, in both of which they were defendants. In disposing of the questions raised by these appeals, it is convenient to consider first the right of the Camden company to construct a street railway along Fourth street, as claimed in its bills. The company was chartered by act of March 23d, 1866 (P. L. of 1866 p. 640), which empowered it to build and operate a railroad on certain streets within the city of Camden only; a supplement to the charter, approved April 2d, 1868 (P. L. of 1868 p. 638), likewise confined it to the city of Camden; another supplement, passed March 11th, 1872 (P. L. of 1872 p. 512), authorized the company "to build, maintain and use a railroad or railroads on any public road or highway in the city of Camden, or on any public road or highway extending from said city into the county of Camden." Upon the last clause of this supplement the company bases a right to build a railroad along Fourth street. "road We cannot concede this claim-Fourth street is not or highway extending from the city of Camden into the county." West Jersey Traction Co. v. Camden Horse R. R. Co. It lies wholly in Stockton township, and no part of it touchesthe city of Camden. True, it crosses State street, which extends out of the city into the township, and it ends in Federal street,. which also extends out of the city into the township; but it is as distinct from either State street or Federal street as any two intersecting streets can be from each other. To support this claim of the company, we must interpret the language of the statute as though it read that the company might build "a railroad or railroads extending from Camden city into the county on any road or highway," an interpretation which would require greater latitude of construction than is permissible in public grants. The legislature defined the highways which the company might use, not the railroads, and the company cannot go beyond the terms of the definition. On April 5th, 1878, an act was passed (Rev. Sup. p. 368) authorizing certain street railway companies to extend their tracks in any county, * * * "provided the consent of the township committee of the township, upon the streets or roads of which it is proposed to lay such tracks, shall first have been had and obtained." Under this act also the company contends it is entitled to lay its tracks along Fourth street in pursuance of a consent given by the township committee on May 12th, 1892, and it produces a writing of that date, signed by the three persons who thencomposed the committee, certifying that permission had been and thereby was granted to the Camden Horse Railroad Company "to lay and operate in and along the streets, roads, avenues and highways of the township of Stockton, a street railroad." Passing by the questions whether this statute is special and so unconstitutional, and whether the Camden company is embraced within its provisions, we think that, according to the terms of the above certificate, only one street railroad was authorized, and that the authority was exhausted by the construction shortly afterwards of the Merchantville line. The fact that the language of the certificate is broad enough to embrace all the highways in the township does not counteract the restrict West Jersey Traction Co. v. Camden Horse R. R. Co. ive force of the words "a street railroad," since a single street railroad may traverse any number of streets. The evidence is that, when this certificate was signed, the Camden company had in contemplation the immediate construction of a railroad through the township from the city of Camden to Merchantville, and that forthwith it built such a railroad, which was completed during the summer of 1892, and has been in operation ever since. The proposed railroad along State and Fourth streets is entirely distinct from this Merchantville line. Under the terms of the certificate, the company had the right of selection among all the highways in the township for the building of "a street railroad," but the selection being once made and the railroad constructed, the right ended. Morris and Essex Railroad Co. v. Central Railroad Co., 2 Vr. 205; Allen v. Monmouth Freeholders, 2 Beas. 68. A consent that the company might, at all times thereafter, lay as many railroads as it chose on any highways within the township, would, even if legal, be so unreasonable that it could not be judicially inferred where it was not couched in unquestionable terms. But, even if the language of this instrument were as broad as the Camden company contends for, we would still be of opinion that the company's claim must be denied, because it appears that the consent so expressed was not the lawful consent of the township committee. The second section of "An act concerning townships and township officers," approved April 21st, 1876 (Rev. p. 1202), provides that the clerk of the township shall act as clerk of the township committee and keep a record of its proceedings and record the same in the town-book. The town-book of the township of Stockton contains no record indicating that the committee ever gave the consent alleged. In view of the public duty of the town clerk, the absence of such a record shows, prima facie at least, under the maxim, "Omnia rite acta præsumuntur," that no consent was given by the committee. This presumption of fact is not rebutted by the proofs. According to the evidence the certificate above mentioned was signed by each of the three subscribers in the absence of his fellows. As the statute requires West Jersey Traction Co. v. Camden Horse R. R. Co. the consent of the "township committee," it was essential to a valid consent that it should be given when the members or a majority of them were assembled in corporate meeting. Schumm v. Seymour, 9 C. E. Gr. 143; 19 Am. & Eng. Encycl. L. 467. Hence, this certificate cannot be itself the statutory consent. It is argued, however, that since the certificate states that permission had been granted, it is evidence from which the giving of a joint consent at some previous time may be inferred. But this position is untenable, for the reason that the declarations of the several members of the board, whether oral or written, are not, by any statute or by any legal rule, admissible to prove prior acts of the corporate body. The testimony of witnesses at the hearing favors rather than repels the belief that no consent was ever voted by the committee when assembled as a body. But it is further insisted that, as the Camden company acted upon the supposition that this certificate was the requisite consent, or was conclusive evidence of it, the public authorities are estopped from denying such consent. The answer to this is that neither for the purpose of giving consent, nor for the purpose of making evidence that consent had been given, were the members of the committee, when separated, the representatives of the public; their conduct, then, was that of private individuals. Moreover, the legislature having provided that the official proceedings of the committee should be recorded in the town-book, the Camden company was not justified in relying on unwarranted assertions as to the acts of the committee, and the public cannot be estopped thereby. Kean v. Elizabeth, 26 Vr. 337. With respect to the implied consent growing out of the alleged approval by the township committee of a grade map of Fourth street, in July, 1893, it suffices to say that, previously, the traction company had applied to the committee for permission to construct a street railroad along that street, and the committee had granted or attempted to grant such permission, and that, under these circumstances, a subsequent consent to build such a railroad on the same street could not lawfully be given to the Camden company without notice to the traction company. West |