The New York herald., 1851-12-04
CITY Railronds.

The Hudson River and Harlem Railroad tracks
were laid in streets of the city, under special
was fettered with the condition that the Common
Council should assent, and that assent Was given.
The sovereign power OF the State acted through its
chief ms entality, the Lsgisature and its sub
ordinate instrumentalty, the local city
The right, therefore, was complete, according to
repeated DECISIONS long acquie iesced in. An aopiica-
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 Couucil
to grant such privileges Independently, as co ming
within the ordinary control the streets Of the
city The recent exercise Of this power In the cases
Of the Sixth and Eighth avenues railroads, shows
that the Common Council entertain no doubt
the subject, and repetition oft exercise may be
expected whenever sufficient motives are addressed
to them. The question is of the highest conse-
quence for 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 the State, tor carrying into effect the pot
in charters, or in laws passed by the Legislature.
No powers are possessed but such as are thu
granted They are the mere creatures OF Legislative
authority. The charter Of New York, as It 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
to be looked for also in its original charter Will
be conceded by all, that If authority TO the Com
M on Council TO devote the streets to this purpose
is not found in the original charter. or In its
am endments or In some subsc luent act OF the Ls.
gislature, IL does not exist at all We are satisfied
that the power does not exist, and that the ordn-
ance in relation to the Sixth and Eighth avsnues
railroads Is wholly void. Tho charters aud laws
passed by the Legislature, 60 in,o detail in re-
lstion to the streets, so far as to declare the
width Of areas, the proportion which sidewalks
shall bear In width TO the whole street. and 10
the street The original charter Of loss so far as
applicable to streets confined the power OF the city
to establishing, laying out, ordering, amending
and repairing Of all Streets, Sc. In 1913 an act
was passed, authorizing the Common Council to
take land for orening or improving streets, OF wnea
nevertheless, that the same be appropriated and
kept open for or part Of public street, &C., for
ever, in like manner the publ, streets &,, are
covered by the same act to order and direct the
pitching and paving Of the streets thereof, and TO
make assessments for the purpose, the moneys 70
6e applied "towsrds making, Altering, amending,
| pitching. paving, cleansing, and securing such
streets" These specifications d, not embrace IN
| terms or effe IT the right to lay rails The Legs
Isture, in granting to the two Corporations above
| named, have done IL in plain and unnistaksble
| language. Bua IL is said the mode and manner OF
having are not eIpre essed aud IL s argued that the
Common Council may authorize grooved pave
ment, If they think proper, or pavement WITH q
and as they may license an omnibus line, ant ex
clude others from the business, they may pu' d.sn
| rails. and devote them TO particular n'cs. lhe
question OF power lies IN this nutshell Isn poser
n claimed as part Of the power to render tho strees.
suitable for the travel Of the whole public; and
yet the mode adoP-ed prefers few, and en-
cludts the mass The duty imposed on th'
Common Council to arrange for the paving ans
regulating the streets, conemplates puohc an
general. and not a private and SPECIAL use
An ordinance that should authorize the sters OF tb'
AsiCr House TO be bought out enc inch beyon'
the line fixed by statute, would Be VOID and too
encroaehment could be treated by the pubic "a
puissnce, subject to he abstsd Anything which
obstructs, without authority from the Legislature
the ordinary travel in that part OF the street Dc goe
70 carriages, may ,ls9 ee 'res,.o as nui,anGe ~ zee
whole public. They, in their sovereign capacity
or through the Legislature. may change o. alto
them but the Common Council mas not withdraV
the streets from public use, and devo;e them, o
any part Of then, 10 private purpose
The General Railroad act authorizes tae CommoI
Councils Of cities, to permit sach corporations a
incorporated under that act TO lay their trsck
in the public streets but the gentlemen who inten
to use the Sixth and Eighth avenues for ;his pur
pose do not bring themselves Wit ain 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 comforting
u even under that act The only possible justifi
cation for authorizing the Hudson River and Har
lem roads to use the streets az they do s the urgen
usual facilities to the great lines that bav,
been established, to promote and encourag
the travel and trade of the cty-object
on which our prosperity In great part depends
IL he a deviation, under the express power o
the statute, from what is usual and proper in th
use Of public streets, and s justified only by grea
necessity. The Common Council have granted tn
right to lay rails In the Sixth and Eighth avenues
for an indefinite term Of years, to some half doze
persons in each case, and they are to break up tn
streets, lay down rails. and use them with their
care and exclude ell others FROM the same use. w
make no objection, for know Of none, to the par
ticular persons Who have received this power, no
10 those who ask for IL 10 be applied to the Secon
avenue; the objection is 10 confering this power o.
any body Of private citizens. II railroads, un
connt oted with Of travel are TO be used
the city, the public should have the advantage oft
and receive the revenues The eSmpete and uninter
rupted use Of the streets cannot be surrendered
without danger. IL the power 70 grant the sole us
of parts of the streets to private persons exists,