The New York herald., 1851-12-04
city Railroads.


were laid in streets of the city, under special au-
thority derived from the Legislature. Tne power
was fettered with the condition that the Common
Council should assent, and that assent WAS given.
The sovereign power Of the State acsed through its
chief ms rum entaty, the Legislature, and its sub
ordinate instrumentality, the local city
Ihe night, therefore, was complete, according to
repeated decisions, long acquie seed in An opiica-
tion is now pending before the Common Council,
to authorize certain private persons to lay down
rails on the Second avenue, and elsewhere,
and use them for their own vehicles, to the
exclusion Of all others; and it is based not on
any special power derived from the Legislature,
but on the supposed right of the Common Council
TO- grant such privileges independently. as co ming
within the ordinary control over the streets Of the
city The recent exercise of this power in the oases
of the Sixth and Eighth avenues railroads, shows
that the Common Council entertain no doubt on
the subject and repetition Of its exercise may be
expected whenever sufficient N motves are addressed
to them. The question is of the highest conse-
quence, for it involves the of every public
street in the city to use by private individuals in
special and important manner, to the exclusion Of
the public Cities are part Of tho political machi.
merry Of tie State, tor carrying into effect the poit
cal power and their authority is expressed either
IN charters, or in laws passed by the Legislature.
No powers are possessed but such rs are thu
granted. They are the mere creatures Of Legislative
authority. The charter of New York, as II came
originally from the British crown, was kept alive
by express provision of the constitution of this
State and consequently the powers Of this city are
be conceded By all, that If authority TO the Com
mon Council to devote the streets to this purpose
is not found in the original charter. or in its
amendments, in some subse luent act Of the Ls-
eslature, it does not exist at al. We are satisfied
that the power does not exist and that the ord,n-
ance in relation to the Sixth and Eighth venues
railroads is wholly void. Tho chsrte aud laws
| passed by the Legislature, 60 into detail in re-
| istion to the streets, so far as to declare the
width Of areas the proportion which side walks
shall bear in width to the whole street, and to
authorize steps leading TO bouses to project into
the street The original charter OF l6cb, 80 Tar as
applicable to streets, confined the power OF the city
10 blishipg, laying out, ordering, amending
| and repairing Of al streets, &c. la 1910 an act
was passed, authorizing the Common Council to
take land for opening or improving streets OF aieh
they might be seised In tee simple, "in trust,
| nevertheless, that tho same be appropriated and
kept open for, as part Of public street, &c, for
ever, in like manner as the publi' streets, 10, are
and Of right ought TO be-" And they were em-
| powered by the same act to "order and direct the
pitchirg and paving Of the streets thereof and to
make assessments for the purpose, the moneys 20
| be applied "towards making, Altering, amending,
pi,chirg. paving, cleansing, and securing su,n
| streets" These speci6cations do not mbr zoe In
terms or efe IT the right to lay rails Tho Legs
lsture, 10 granting il to the two Corporations above
named, have done IL in plain and unmistakable
| language. Bus il Is said the mode and manner o
paving are not expressed and IL is argued that the
| Common Council may authorize grooved pave
ment, If they think proper, or pavement with
and as they may license an omnibus line, ani ex
clrde others from the business, they may pu. d2rr
raiJf, and devote them to particular uses. Th'
question Of pow er lies in this nutshell Tns poSe
s claimed as part Of the power to render the street
suitable for the travel Of the whole public; an'
| yet the mode adop-ed prefers q few, and ex
cudes the mass. The duty imposed on tn
Common Council to arrange for the paving au'
regulating the streets, con.emplstes public an
general, and not private ana special use
An ordinance that should authorize the stsrs OF to
Astcr House to be bought out cue inch beyon
the line fixed by statute, would b. void ard To-
encroschment could be treated by The pubEc as
nuisance, subject to he abstsd. Anything shicl
obstructs, without authority from the Legislature
the ordinary travel In that part OF The street DC
TO carriages, may tlso be ,rca'ed rs y nuisance
Tbese are well established rights residing in tn
whole public. They, in their sovereign capacity
or through the Legislature. may change o. alto
them but the Common Council ma not withdra'
the streets from public use, and devo;e them, o
any part Of then, TO private purpose
The General Railroad act authorizes tae Comm0
Councils OF cities, to permit sack corporations a
are incorporated under that act to lay their track
in the public streets but the gentlemen who inten
to use the sixth and Eighth avenues for shis pur
pose, not bring themselves tan the act in any
pect. The General Railroad act guards the publ
against abuse in case the right we're acquired unde
IL; but there would be no propriety in coufsrrina
unss, that act N. ThH Sn pses I'LL;
lem roads to use the streets as they do s the urgea
necessity and great importance Of holding out IN
usual facilities to the great lines that bav
been established, to promote and encourag
the travel and trade OF the city-object
on which our prosperity In great part depends
lt is a deviation, under the express power Q
the statute. from what is usual and proper in th
use OF public streets. and Is justified only by gres
necessity. The Common Council have granted Tn
right to lay rails In the Sixth aud Eighth avenues
tor an indefinite term OF years, to some half doze
persons IN each case, and they are to break up th
atr Iou Aouv. 1T
cars, and exclude all others FROM the same use w
make no objection, for we know Of none to the par
ticular persons who have received this power no
to those who ask for II TO be applied to the Secon
avenue; the objection Is to copfering this power o.
any body Of private citizens. IL railroads, un
CONNIE cted with great lines of travel are TO be used
the city, the public should have the advantage off,
and receive the revenues The eSmrlete and uninter
| rupted use Of the streets cannot be surrendered
without danger. II the power TO grant the sole us
of parts OF the streets TO private persons exists