In the case of Pennsylvania R. R. Co. v. Mayor etc. of Jersey City, 47 N. J. L. 286, a proceeding was commenced for the purpose of having an ordinance of the city declared invalid as unreasonable, and it was said: "This proceeding in error seeks the abolition of this ordinance in toto, and, as a whole, it is plainly not open to the imputation of unreasonableness. Its scope is to put upon a proper footing the use of railroad trains within the municipal bounds, and there is no pretense that it presses unduly upon any of such companies, except that it harasses the plaintiff in error in passing its numerous trains across three certain streets near its terminal depot. But conceding this allegation to be true, that the business of the plaintiff in error at this particular locality is by that ordinance unreasonably embarrassed and burdened, such a vice in the by-law would not render it generally, but only specially, inefficacious; that is, the court would not vacate the entire ordinance, but merely refuse to put it in effect in that part of it that was thus unreasonable." 692 And a somewhat analogous question has arisen in the federal courts. As is well understood, the federal courts have held that, under the fourteenth amendment, a statute of a state regulating freight or passenger charges may, if it be unreasonable in its terms, be held unconstitutional and void in its application to a particular case. But the federal supreme court has held, as we shall see, that the determination of this question in a particular case does not conclude the question for all time as between parties standing in a different relation to the public authorities. This is well illustrated in the case of Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 418, 42 L. ed. 819. That was a case in chancery, and the question of the reasonableness of the statute as applied to the complainant was determined upon a full review of all the facts of the case. It was held that the statute, as applied to then conditions, was unreasonable. But it is significant that in the very case the court fully approve of the provision in the decree of the circuit court. that the defendants, members of the board of transportation, might, "when the circumstances have changed so that the rates fixed in the said act of 1893 [Neb. Acts 1893, c. 24, p. 164] shall yield to the said companies reasonable compensation for the services aforesaid," apply to the court by bill or otherwise, as they might be advised, for a further order in that behalf. If, then, it is possible that, as between the same parties who have litigated the reasonableness of a statute (or ordinance), the question may again be opened as a question of fact, how much more may it be said that, as between strangers to that litigation, the judgment depending upon a question of fact has not concluded them. 693 In the case of Brooklyn Crosstown R. Co. v. City of Brooklyn, 37 Hun, 416, it was said: "The validity of every ordinance or by-law of a corporation which is not passed in strict compliance with statutory delegation of power depends upon its reasonableness, . . . . and hence that point [the reasonableness of the ordinance] was a proper subject for judicial examination as a question of fact.” If, then, there is involved in the case a question of fact, how shall that question be determined? As I have endeavored to show, the reason assigned by some of the authorities why it should not be a question for the jury is a wholly insufficient one. Worse than that, it is a false reason, which leads to erroneous and unjust results. We are not wanting, however, in authority which sustains the rule which I have foreshadowed. In Clason v. City of Milwaukee, 30 Wis. 316, it was said: "It is impossible for the court to determine whether or not the ordinance is reasonable and proper, in view of the object sought to be accomplished, without some evidence upon the subject. And we cannot see that it is a violation of any principle to submit these questions of fact to a jury as in other cases.” This case was followed by the case of City of Austin v. Cemetery Assn., 87 Tex. 330, 47 Am. St. Rep. 114, 28 S. W. 528, in which it was held that it is incumbent upon a party who alleges the invalidity of an ordinance as unreasonable to aver and prove the facts which make it so; that, if the facts be controverted, they must be determined by the jury; but that whether the facts relied upon show the ordinance to be unreasonable or not is a question for the court. So, in State v. Boardman, 93 Me. 73, 44 Atl. 118, 46 L. R. A. 750, it was said: "It is true that the question of the reasonableness of a by-law is for the determination of the court, and this conclusion does not take away from the court the determination of the question. Certain facts will have to be passed 694 upon by the jury. But the standard upon the question of the reasonableness or otherwise of the by-law is established by the court." In Chicago etc. R. Co. v. Wellman, 143 U. S. 339, 12 Sup. Ct. Rep. 400, 36 L. ed. 176, the question of the reasonableness of a statute fixing the maximum rate at two cents per mile was in volved. It was said: "If the validity of such a law in its appli cation to a particular company depends upon a question of fact as to its effect upon the earnings, may not the court properly leave that question to the jury, and decline to assume that the effect is as claimed? There can be but one answer to these questions." The invalidity of the ordinance in the present case depended upon the ability of the defendant to establish certain facts. This it undertook to do. The case was tried without a jury. The trial judge, however, stood in the position of a jury. He found as a fact that the ordinance was not unreasonable. It was then within the province of the defendant's counsel to call for a more specific finding of facts. This they failed to do. Doubtless better practice would have been to have had a specific finding upon the particular facts which are claimed to show the invalidity of the ordinance. But the record is not so made up. In my view, unless we are able to say that the testimony all tends in one direction, and that is to show the unreasonableness of the ordinance, the plaintiff in certiorari has not put itself in position to review the decision of the trial judge. As I do not find the testimony all one way, I think the judgment should be affirmed. POWER OF MUNICIPAL CORPORATIONS TO MAKE AND ENFORCE REGULATIONS RESPECTING STREET RAILWAYS FOR THE PROTECTION OF THE PUBLIC. I. Scope of Note, 637. II. General Effect of Acceptance of Franchise, 637. III. General Nature of the Police Power, 638. IV. Right of Municipality to Regulate Street Railways, 638 V. What Constitutes Regulation, 640. VI. Necessity for Regulation to be Reasonable, 641. VII. How Reasonableness of Regulation is Determined, 642. IX. Effect of Express Legislative Authority on Reasonableness, 645. XI. Instances of the Application of the Power to Regulate. a. Regulations Prohibiting the Carriage of Freight, Express. or Mail, 646. b. Regulations Relative to Equipment of Cars or Track. 1. Relative to Brakes or Fenders, 646. 2. Requiring Inclosed Vestibules for Motormen, 646. 3. Relative to Change of Motive Power, 647. 4. Regulating the Stringing of Wires, 648. 5. Requiring Change of Rails or Repaving and Repair of Streets, 648. 6. Limiting Company to a Single Track, 649. c. Begulations Relative to Mode of Operation. 1. Requiring Vigilant Watch by Car Operatives, 649. 4. Prohibiting Smoking in Cars, 651, 5. Regulating Movements at Crossings, 651. 6. Limiting General Rate of Speed, 651. 7. Relative to Sprinkling of Water, Sand or Salt on Tracks, 652. 8. Regarding the Removal of Snow or Ice from Tracks, 653. 9. Affecting Right of Way as Against Fire Department, 654. XII. Construction of Ordinances Attempting to Regulate. a. General Rules of Construction, 654. b. Construction of Ordinances Relative to Equipment and Operation, 655. XIII. Enforcement of Ordinances by Making Violation a Predicate for Negligence, 656. XIV. Criminal Prosecutions for Violation of Regulating Ordinances, 657. I. Scope of Note. In this note we shall confine ourselves to a discussion of the power of a municipality to regulate street railways only in so far as such regulations tend to protect the life or limb of the public. Hence we shall exclude from our consideration such regulations as fix the rate of fare or the frequency with which the company shall run its cars, or regulations affecting merely the convenience of the public, or such regulations as are imposed by the terms of the charter or franchise granted to the company. In our discussion of the subject, when in doubt whether the purpose of a regulation is for the protection of the public, we shall resolve the doubt in favor of such protection and include it within the scope of this note. We shall advert to the general principles of law governing the subject only in an incidental manner. II. General Effect of Acceptance of Franchise. The acceptance of a franchise to operate a street railway amounts to a contract between the governmental body granting the franchise and the street railway company. Hence where the franchise contains terms or conditions, or reserves the power to impose new terms or conditions, the street railway company is bound thereby: Baumgartner v. Mankato, 60 Minn. 244, 62 N. W. 127; Chouquette v. Southern Electric R. R. Co., 152 Mo. 257, 53 S. W. 897; City Ry. Co. v. Citizens' R. R. Co., 166 U. S. 568, 17 Sup. Ct. Rep. 653, 41 L. ed. 1114; Detroit v. Fort Wayne etc. Ry. Co., 95 Mich. 456, 35 Am. St. Rep. 580, 54 N. W. 958, 20 L. R. A. 79. But of course the municipality cannot go outside of the franchise and impose new terms and conditions which would practically destroy the grant or its value. A municipality, however, when it grants the right to use the streets for the operation of a street railway does not surrender its right to con trol the streets: Pawcatuck Val. St. Ry. v. Westerly, 22 R. I. 307, 47 Atl. 691. Where a street railway company, in accepting a franchise, agrees to certain conditions imposed by the municipality, it is thereafter estopped from claiming that the conditions are unreasonable: In re Topping Ave. (Mo. Sup.), 86 S. W. 190. Thus in Detroit v. Fort Wayne etc. Co., 95 Mich. 456, 35 Am. St. Rep. 580, 54 N. W. 958, 20 L. R. A. 79, a reservation in the ordinance granting a franchise "to make such further rules, orders or regulations may from time to time be deemed necessary to protect the interest, safety, welfare or accommodation of the public," was held to include the right to enact an ordinance requiring the company to keep on its cars for sale at certain times tickets good for transportation between certain hours at a reduced rate of fare. III. General Nature of the Police Power. Many attempts have been made to define the police power, but never with entire success. It is always easier to determine whether a particular case comes within the general scope of the power than to give an abstract definition of the power itself which will be in all respects accurate. No one, however, denies that it extends to all matters appertaining to the public health or public morals: Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079. For a discussion of what constitutes the police power, see the note to Booth v. People, 78 Am. St. Rep. 236. It may, however, be said that the polic power, like other powers, is subject to constitutional limitation. The legislature cannot, under the pretense of exercising this power, enact laws not necessary to the preservation of the health and safety of the community that will be oppressive and burdensome upon the citizen. If it should prohibit that which is harmless in itself or command that to be done which does not tend to promote the health, safety or welfare of society, it would be an unauthorized exercise of power, and it would be the duty of the courts to declare such legislation void: Toledo etc. Ry. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611. Municipal corporations are created solely for the public good and are appropriate agencies to protect the public interests. Railway companies also serve the public, but they serve them with a view to the profit of their shareholders: Central Ry. & Electric Co.'s Appeal, 67 Conn. 199, 35 Atl. 32. By the general police power of the state, persons and property are subject to all kinds of burdens and restraints in order to secure the general comfort, health and prosperity of the people: State v. Canal etc. R. R. Co., 50 La. Ann. 1189, 24 South. 265, 56 L. R. A. 287. But a municipal corporation can only exercise such police power as is fairly included in the grant of powers by its charter: Judy v. Lashley, 50 W. Va. 628, 41 S. E. 197, 57 L. R. A. 413. IV. Right of Municipality to Regulate Street Railways. Street railway companies are subject to police regulations in the same manner as are private citizens: Toledo etc. Ry. v. Jacksonville, |